State v. Coleman

No. 14448

IN THE SUPREME COURT OF THE STATE OF MONTANA

1979

STATE OF MONTANA,

Plaintiff and Respondent,

-vs-

DEWEY EUGENE COLEMAN,

Defendant and Appellant.

Appeal from: District Court of the Sixteenth Judicial District,

Honorable A. B. Martin, Judge presiding.

Counsel of Record:

For Appellant:

Moses Law Firm, Billings, Montana

Charles F. Moses argued, Billings, Montana

For Respondent :

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

Montana

Mike McCarter, Assistant Attorney General, argued,

Helena, Montana

John S. Forsythe, County Attorney, Forsyth, Montana

Submitted: October 29, 1979

Decided :

DEC 1 9 1979

Filed:

DEC 4 9 1

m

Mr. Justice John C. Sheehy delivered the Opinion of the Court.

On June 20, 1979, we handed down our opinion on the

second appeal of Dewey Eugene Coleman (1979), Mont . I

P.2d , 36 St. Rep. 1134. Following the opinion,

we received the decision of the United States Supreme Court

in Sandstrom v. Montana (1979), U.S. , 99 S.Ct.

2450, 61 L.Ed.2d 39. Counsel for Coleman filed with us a

petition for rehearing on the second appeal, alleging,

among other things, that the holding in Sandstrom required a

reversal and a new trial in Coleman's case. On the basis

of Sandstrom, we granted the petition for rehearing, and

further permitted argument on eight other grounds urged by

Coleman for rehearing. The issues raised by both sides were

briefed and argument was had on rehearing before us on

October 29, 1979.

We now uphold the judgment of conviction against Dewey

Eugene Coleman, and the sentence of death imposed on him. We

will discuss our reasons under the issues as they were

briefed and argued before us.

1. The effect - - Sandstrom decision.

of the

In Sandstrom, the United States Supreme Court found the

trial court's instruction "[tlhe law presumes that a person

intends the ordinary consequences of his voluntary acts" un-

constitutional. - U.S. at , 99 S.Ct. at 2453, 61 L.Ed.2d

The Supreme Court held that such an instruction may have

been viewed by the jury as an "irrebutable direction by the

court to find intent once convinced of the facts triggering

the presumption. Alternatively, the jury may have interpreted

the instruction as a direction to find intent upon proof

of the defendant's voluntary actions, . . . unless -

the

defendant proved the contrary by some quantum of proof. . ."

Sandstrom, U.S. at , 99 S.Ct. at 2456, 61 L.Ed.2d

at 47.

The instruction to which Coleman objects on the basis

Sandstrom is the trial court's instruction no. 22 as

follows:

"If you find that the defendant Dewey Eugene

Coleman committed a homicide and no circumstances

of mitigation, excuse or justification appear,

then you may infer that the homicide was committed

knowingly or purposely."

The objections by Coleman to instruction no. 22 may be

summarized as follows: (1) the instruction was in the

nature of a Sandstrom instruction; (2) this Court has held

that Coleman instruction is similar to the Sandstrom instruction

/PC

(State v. Sandstrom (1978), - Mont . , 580 P.2d 404-, 35

St.Rep. 744); (3) under instruction no. 22 the State was not

required to prove every element of the alleged crime beyond

a reasonable doubt; (4) a statutory presumption is unconstitutional

unless it can be shown that the presumed fact is more likely

than not to flow from the proved fact upon which it depends;

(5) instruction no. 22 conflicts with the defendant's presumption

of innocence because where intent is an element of the crime

it cannot be taken from the jury through reliance on a

presumption; (6) therefore, the State was not required to

prove its case against defendant beyond a reasonable doubt.

We first note that the instruction in Coleman differs

from the instruction given on Sandstrom in that the Coleman

instruction is not mandatory in its terms. The permissive

nature of the language "you may infer" cannot be escaped.

The question then becomes whether the permitted inference,

when read with the other instructions in the case, allowed

the State to convict Coleman without proving every element

of the offenses charged beyond a reasonable doubt.

Moreover, the Sandstrom instruction related to a presumption

as a matter of law. The Coleman instruction refers to an

inference of fact, a deduction that logically could be inferred

by the jury under proof of the circumstances stated. The

possible inference, by its terms is not in itself unreasonable.

The United States Supreme Court said in Sandstrom that

determining whether the State has been relieved of its burden

of proof, "requires careful attention to the words actually

spoken to the jury ... for whether a defendant has been

accorded his constitutional rights depends upon the way in

which a reasonable jury could have interpreted the instruction."

Sandstrom, U.S. at , 99 S.Ct. at 2454, 61 L.Ed.2d at 45.

A review of the instructions given by the trial court

shows that instruction no. 22 did not stand alone on the burden

of the State to prove the elements of the offenses charged.

At the outset, the Court informed the jury, "[tlhe State is

required to prove, beyond a reasonable doubt, all material

facts alleged in the information filed in this case."

Further instructions of the court hammered home to the jury

the importance of the presumption of innocence. In court's

instruction no. 3, the jury was told that the defendant came

into court protected by the presumption of innocence as to

any crime, and particularly the crimes charged against him;

that he was presumed to be innocent until his guilt is established

to a moral certainty beyond a reasonable doubt; that the

presumption of innocence attended him at every step and through-

out the entire case and that he was entitled to the benefit

of that presumption upon every question of fact; and that the

jury should determine his guilt or innocence by a careful con-

sideration of all the evidence introduced in the case during

the trial.

In instruction no. 4, the trial court told the jury that

the burden of proof rested upon the State throughout the trial

to establish the guilt of Coleman beyond a reasonable doubt

and that his conviction would not be warranted unless the burden

was sustained.

In instruction no. 5, the jury was told the defendant in

a criminal action is presumed to be innocent until the

contrary is proven, and in case of reasonable doubt whether

his guilt is satisfactorily shown, he was entitled to an

acquittal; that the effect of this presumption was to place

upon the State the burden of proving the defendant guilty

beyond a reasonable doubt.

Although Coleman was convicted of three separate crimes,

the disputed instruction relates only to the charge of

deliberate homicide. We find that the trial court fully

informed the jury in the foregoing instructions about the

burden of proof resting upon the State as to each material

element of the crimes charged and the abiding effect of the

presumption of innocence throughout the course of the trial.

We look now to determine the effect under the instructions

of the language in the disputed instruction that the jury

might "infer that the homicide was committed knowingly or

purposely".

An inference is a form of evidence defined as "indirect

evidence". Section 26-1-102(4), MCA. To a layman, perhaps,

indirect evidence is better known as "circumstantial evidence".

In trial court's instruction no. 8, the jury was instructed

that there were two classes of evidence upon either or both

of which if adequately convincing, the jury ' might law£ully

find the accused guilty of crime. One was direct evidence,

and the other was circumstantial evidence. A part of the

court's instruction no. 8 with respect to circumstantial evidence

told the jury:

"All other evidence admitted in the trial is

circumstantial, and insofar as it shows any

acts, declarations, conditions, or other

circumstances tending to prove a crime in

question, it may be considered by you in

arriving at a verdict. Either will support

a verdict of guilty if it carries the convincing

quality required by law, as stated in these

instructions. However, you are instructed

that you are not permitted on circumstantial

evidence alone to find the defendant guilty of

any crime charged against him unless the proved

circumstances not only are consistent with the

hypothesis that the defendant is guilty of the

crime but are inconsistent with any other rational

conclusion. "

When we give careful attention to the words spoken to

the

the jury, adunited States Supreme Court said in Sandstrom,

the foregoing instruction with respect to the effect of circumstantial

evidence must be weighed with the disputed instruction that

the jury "may infer" material elements of the crime. On

balance, it is clear to us that the permissive language in

the disputed instruction must under any fair reading give

way to the positive declaration in instruction no. 8 that cir-

cumstantial evidence must carry the convincing quality

required by law as stated in the instructions, and that any

such inference standing alone would be insufficient unless

it was inconsistent with any other hypothesis than guilt.

On appeal, we view the instructions as a whole. State

v. Farnes (1976), 171 Mont. 368, 558 P.2d 472. It is impossible

to deliver the whole of the law in any one instruction, and

for that reason, all instructions are considered as a whole

and if they fairly tender the case to the jury, the fact

that one instruction standing alone is not as full or accurate

as it might be is not reversible error. State v. Caryl

(1975), 168 Mont. 414, 543 P.2d 389. The purpose to commit

a crime, or knowledge that one is committing a crime, are

subjective matters that most often can be proven only through

circumstantial or indirect evidence.

The holding in Sandstrom is not to be construed to mean

that whenever a trial court instructs the jury that it may

resort to inference to determine subjective matters such as

knowledge or purpose, that thereby the State has been relieved

of its burden of proof. The United States Supreme Court did

not intend such limitation, and we do not find any such

intention in the language of Sandstrom, or its related

cases. The jury was not allowed to rest solely upon the

permitted inference in the Coleman case, but under the

instructions had to require such an inference to meet the

standard as beyond a reasonable doubt.

The true test under Sandstrom, in determining the

effect of an instruction such as the one disputed here is

whether that instruction has the effect of allocating to the

defendant some part of the burden of proof that properly rests

on the State throughout the trial. See Holloway v. McElroy

(D. Ga. 1979), 474 F.Supp. 1363, 1368. We do not find that

to have occurred here.

On that basis we distinguish the Coleman instruction

from those cases involving a burden-shifting presumption as

in Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881,

44 L.Ed.2d 508; and conclusive presumptions like those

involved in Sandstrom, supra; Morissette v. United States

(1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; and United

States v. United States Gypsum Co. (1978), 438 U.S. 422, 98

S.Ct. 2864, 57 L.Ed.2d 854. Instead the inference is purely

permissive, in the sense described in County Court of Ulster

Cty. v. Allen (1979), - U.S. , 99 S.Ct. 2213, 60

L.Ed.2d 777.

Coleman further contends that because we stated in our

first Sandstrom opinion (State v. Sandstrom (1978),

Mont. , 580 P.2d 106,at 109, 35 St.Rep. 744, at 748) that

the instruction in Coleman was similar to the Sandstrom

instruction that thereby the United States Supreme Court in

overruling Sandstrom has in effect determined that the Coleman

instruction was likewise unconstitutional. We do not accept that

contention as having any validity. Comparing each instruction,

-7-

we see this manifest difference: the Sandstrom instruction

is by its terms mandatory but the Coleman instruction is

permissive. We can see no other construction as to the effect

of the language used in instruction no. 22 in this Coleman case.

2. - effect of -

The - the - "knowingly."

instruction on -

Here Coleman attacks the definition of the term "knowingly",

as given by the Court in instructing on that element regarding

the crimes charged.

In trial court's instruction no. 26, the jury was told:

"'Knowingly'. A person acts knowingly with respect

to conduct or to a circumstance described by a

statute defining an offense when he is aware of

his conduct or that the circumstance exists. When

knowledge of the existence of a particular fact

is an element of an offense, such knowledge is

established if a person is aware of a high probability

of its existence. Equivalent terms such as 'knowing'

or 'with knowledge' have the same meaning."

The objections to this instruction on rehearing are:

(1) it violates the rule against reasonable doubt because it

requires only a "high probability of its existence;" (2) it

is in effect an exclusive presumption in that the element

is established if the jury finds a high probability of its

existence; and (3) "high probability" does not have that

quality which would enable a jury to convict.

Under United States v. United States Gypsum Co., supra,

where a defendant's state of mind or intent was an element

of an antitrust offense, a reliance by a jury on a legal

presumption of wrongful intent from proof or effect on

prices necessitated reversal. Applying the rationale of

United States Gypsum Co., defendant contends that Montana's

statutory definition of "knowingly" is established if a jury

finds "a high probability of its existence". This, Coleman

contends, does not equate with proof beyond a reasonable

doubt as an essential element of the crime charged.

In the original Coleman opinion from this Court,

(19781, - Mont . , 579 P.2d 732, 35 St.Rep. 560, we

considered this argument. There we rejected the contention.

Consideration by us of the renewed issue on rehearing is

proper, since it was not addressed in our second Coleman

opinion of June 20, 1979, supra, and the Sandstrom decision

intervened between our said decision and the rehearing.

The statute on which the instruction is based, section

45-2-101(27), MCA, defines "knowingly" as follows:

"'Knowingly'--a person acts knowingly with respect

to conduct or to a circumstance described by a

statute defining an offense when he is aware of his

conduct or that the circumstance exists. A person

acts knowingly with respect to the result of conduct

described by a statute defining an offense when he

is aware that it is highly probable that such result

will be caused by his conduct. When knowledge of the

existence of a particular fact is an element of an

offense, such knowledge is established if a person

is aware of a high probability of its existence.

Equivalent terms such as 'knowing' or 'with knowledge'

have the same meaning."

The statute considers two elements of knowledge as far as

this case is concerned, (1) knowledge as to the conduct itself

and, (2) knowledge as to the result of that conduct. It is

only the result of the conduct that hangs on the proof of his

awareness that "it is highly probable that such result [would]

be caused by his conduct."

The evil countermanded in Sandstrom and again in United

-

States Gypsum Co., is instructing the jury in such a manner that

the function of fact-finding is invaded by the court. It is

when the instructions take away from or intrude upon the duty

of the jury to find intent that the instruction becomes con-

stitutionally impermissible for "'A conclusive presumption

[of intent], which testimony could not overthrow would effectively

eliminate intent as an ingredient of the offense.'" 483 U.S.

at 446, 98 S.Ct. at 2878; Morissette, 342 U.S. at 275, '72

When the holdings in Sandstrom and United States

Gypsum - are understood in that context, one may examine the

Co.

instruction on "knowingly" complained of here, and determine

that the fact-finding duty of the jury is not invaded by the

Court. The District Court is not usurping a jury function

when it instructs "a person acts knowingly with respect to

the result of conduct [constituting a crime] when he is aware

that it is highly probable that such result [would] . . . be

caused by his conduct." The jury is not called upon to

determine "high probability" in place of "reasonable doubt";

rather it is called on to determine the existence of defendant's

awareness, beyond a reasonable doubt, that a high probability

is that the result of his conduct makes his conduct criminal.

The District Court here did not, by using this instruction,

make it mandatory upon the jury to find defendant's awareness,

nor conclusively presume his awareness. That finding was

left exclusively to the jury. In short, the instruction did

not establish a presumption which testimony could not overthrow.

On that basis, therefore, we find no merit on the second

ground of attack.

Montana has the right and authority to define crimes and

their elements. See Patterson v. New York (1977), 432 U.S. 197,

97 S.Ct. 2319, 53 L.Ed.2d 281. It is consistent with

modern concepts of intent to define knowledge as an awareness

of probable consequences. The United States Supreme Court said

in United States v. United States Gypsum Co., supra, 438 U.S.

at 444-45, 98 S.Ct. at 2877, with respect to intent under

antitrust laws:

". . . we conclude that action undertaken with

knowledge of its probable consequences and

having the requisite anticompetitive effects

can be a sufficient predicate for a finding of

criminal liability under the antitrust laws.

"Several considerations fortify this conclusion.

The element of intent in the criminal law has

traditionally been viewed as a bifurcated concept

embracing either the specific requirement of

purpose or the more general one of knowledge

or awareness.

" ' [I]t is now generally accepted that

a person who acts (or omits to act) intends

a result of his act (or omission) under two

quite different circumstances: (1) when

he consciously desires that result, whatever

the likelihood of that result happening

from his conduct; and (2) when he knew

that the result is practically certain to

fall from his conduct, whatever his desire

may be as to that result.' (Citing authority.)

"Generally this limited distinction between knowledge

and purpose has not been considered important since

'there is good reason for imposing liability whether

the defendant desired or merely knew of the practical

certainty of the result.' (Citing authority.) In

either circumstance, the defendants are consciously

behaving in a way the law prohibits, and such conduct

is a fitting object of criminal punishment. (Citing

authority. ) "

Distinction Between Post Facto - Retroactive

and

Restrictions.

Nothing in the briefs or on the rehearing has been brought

to our attention requiring us to expand our discussion of these

issues in our opinion promulgated June 20, 1979, except for

the citation by Coleman of State v. Collins (La. 1979), 370

So.2d 533, and Miller v. State (Tenn. 1979), 584 S.W.2d 758.

In State v. Collins, the Louisiana Court decided, on

retroactive grounds, without specific reference to - -

ex post facto

effect, that the application of the death penalty was barred by a

Louisiana statute similar to that of Montana, that no section

of the revised statutes is retroactive unless expressly so

stated. The defendant there committed the offense of first degree

murder at a time when the first degree murder statute provided

that whoever committed the offense must be punished by death.

Following the United States Court decision in Roberts v.

Louisiana (1976), 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974,

Louisiana enacted new statutes effective 21 days after the

offense here was committed, "redefining the crime of first

degree murder and enacting a permissive, and presumably con-

stitutional, death penalty. . ." 370 So.2d at 534. It appears

therefore that Louisiana not only redefined the punishment

for murder, but redefined the crime. In Montana, the legislature

took only the procedural step of redefining the punishment.

On that basis, as our earlier discussion respecting - -

ex post

facto and retroactive provisions disclose, State v. Collins is

distinguishable from the case at bar.

Similarly, there is a distinguishing factor in Miller v.

State, supra. The Tennessee constitution has a provision which

states:

"That laws made for the punishment of acts

committed previous to the existence of such laws,

and by them only declared criminal, are contrary

to the principles of a free government; wherefore

no --

Ex post facto law shall be made." 584 S.W.2d

at 761.

It is obvious that the Tennessee court, under that State con-

stitutional provision, could only decide that laws providing

for punishment but enacted after the crime could not be retro-

actively applied.

It should be noted that the Tennessee court in Miller

agreed with our determination of the effect of Calder v. Bull

(1798)', U.S. (3 Dall.) 386, 1 L.Ed. 648, as to retroactivity

3

and the four broad classifications of --- facto laws

ex post

set out in State v. Rowe (1935), 116 N.J.L. 48, 181 A. 706.

See 584 S.W.2d at 761.

We note in passing that in Smith v. Com. (Va. 1978),

248 S.E.2d 135, where Virginia's 1975 death penalty statute

was presumptively valid in spite of the United States Supreme

Court decisions attacking the constitutionality of similar death

penalty statutes and a 1977 Virginia law amending the death

penalty statute was applied to uphold a previous death penalty;

the Virginia Court found that the 1977 changes were ameliorative.

Xt found so because the 1977 law provided an alternative penalty

-12-

provision instead of the mandatory penalty provision of the

1975 law. This was the same situation as occurred in

Montana. Relying on Dobbert v. Florida (1977), 432 U.S. 282,

97 S.Ct. 2290, 53 L.Ed.2d 344, the Virginia Supreme Court found

no - -

ex post facto violations since the defendant had "'fair warning'

of the consequences of murder." 248 S.E.2d at 147. The

Virginia court found that the changes were ameliorative, and

merely procedural.

Since we find no compelling reason to reverse our

opinion respecting the application of the 1977 Montana death

statute, we hold to what we said on that subject in the

opinion promulgated on June 20, 1979.

4. - - Montana

The New Capital Punishment Statutes are

Unconstitutional.

The force of Coleman's argument here is that section

46-18-305, MCA, formerly section 95-2206.10, R.C.M. 1947,

provides that the sentencing court, in a death penalty case,

can only consider those "mitigating circumstances sufficiently

substantial to call for leniency." Coleman contends that

such language limits the court's discretion only to circumstances

"sufficiently substantial" and is not within the holding in

Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57

L.Ed.2d 973, that the sentencing body must not be precluded

from considering any aspect of the defendant's record or

character as a mitigating factor.

To state the converse of Coleman's position on this issue

is to refute the argument. A sentencing court should not rely

on "mitigating circumstances sufficiently substantial to call

for leniency.' The only limit placed upon the court's discretion

under section 46-18-305, MCA, is that the mitigating factor

must be substantial; that is, it must have some substance or

weight. We cannot regard the statutory language requiring a suf-

ficiently -

substantial mitigating factor as a limiting encroachment

upon the discretion of the judge when he passes sentence

in capital cases.

5. Whether Coleman's Death Sentence - Disproportionate

is

- Crime, What is the

His --- Scope - -

of this Court's Review, -

and

Coleman's Request - - a Further Review of Comparative Cases.

for -

We lump the foregoing issues raised on the petition for

rehearing together because they can be more easily answered

as one subject.

First we refer again to the developments that occurred

after the decision in Furman v. Georgia (1972), 408 U.S. 238,

92 S.Ct. 2726, 33 L.Ed.2d 346, wherein it was held that a

statutory system which allows the sentencing authority un-

bridled discretion in the process of imposing the death penalty

violated the Eighth and Fourteenth Amendments.

It was the Furman decision that brought about eventually

the recodification of Montana's law so as to replace the

mandatory death penalty with sentencing provisions which gave

the sentencing judge alternatives to follow in pronouncing sentence.

Under Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49

L.Ed.2d 929; Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct.

2960, 49 L.Ed.2d 913; and Gregg v. Georgia (1976), 428 U.S. 153,

is

96 S.Ct. 2909, 49 L.Ed.2d 859, it/clear that Furman does not

require that all sentencing discretion of the trial court be

eliminated if the statutory system provides adequate standards

to guide the exercise of the discretion in sentencing in

capital cases.

Montana's response was the adoption of sections 46-18-

301-310, MCA, inclusive. Those sections guide the discretion of

the District Court both as to aggravating circumstances and

mitigating circumstances in passing sentence. The District Court

may impose its sentence of death if it finds one or more of the

aggravating circumstances described and also finds there are no

mitigating circumstances sufficiently substantial to call for

-14-

leniency. Findings of fact are required of the ~istrict

Court and automatic review by the Supreme Court in all death

sentences is also provided.

The duties of our Supreme Court with respect to death

sentences is set forth in section 46-18-310, MCA. Under that

statute, this Court shall determine:

"The supreme court shall consider the punishment

as well as any errors enumerated by way of appeal.

With regard to the sentence, the court shall

determine:

"(1) whether the sentence of death was imposed

under the influence of passion, prejudice, or

any other arbitrary factor;

" (2) whether the evidence supports the judge's

finding of the existence or nonexistence of the

aggravating or mitigating circumstances enumerated

in 46-18-303 and 46-18-304; and

"(3) 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."

Coleman makes two arguments respecting our review, (1)

that we have not reviewed the "entire record" under section

46-18-308, MCA, because we have not reviewed, Coleman contends,

the issues raised on his first appeal and (2) that we have

not reviewed all the appropriate "similar cases" under

section 46-18-310 (3), MCA.

Needless to say, when the matter came to this Court for

automatic review after the death sentence was reimposed,

there came with it not only the record of the resentencing,

but the entire record of the trial. We also had before us the

briefs and records that related to the first opinion. It

should be understood, therefore, that in connection with the

second opinion propulgated June 20, 1979, supra, that we

have in fact reviewed the entire record.

Further we see no reason to change our position with

respect to the similar cases that we looked at in order to

determine whether or not the death sentence in Coleman's

case was disproportionate. We take our duty to be, in connection

with whether a death sentence is disproportionate, that we

should review the circumstances of the crime of which the defendant

is accused, and in the light of those circumstances, the judgment

and the sentence thereupon imposed; and, examine cases involving

similar crimes, all for a single purpose, to make certain that

as far as the defendant in this case, Coleman, is concerned,

there has been no discriminatory action on the part of the

sentencing judge, no abuse of discretion by the sentencing

judge, and that the sentencing judge has considered and applied

fairly and without discrimination the applicable law. We find this

to be true in this case. It should be understood that in the

final analysis, the imposition of sentence is not one that

this Court must undertake. That matter is still reserved under

our statutes to the District Courts. There is a discretion

vested in the District Court in capital cases as to whether the

death penalty should be imposed. Once that discretion has been

exercised, and if we find that it has been exercised fairly,

indiscriminately and in accordance with the applicable statutes,

then it must be upheld. The search for disproportionateness

involves elements that consider the gravity of the crime, the

brutality with which it may have been committed and the factors,

if any, which lead to a call for leniency. We look for the even-

handed application of death sentences without regard to sex,

color, creed, or race, or any other discriminating consideration.

When we find that this has occurred, as we find here, our

course under the law is to uphold the decision of the District

Court.

6. Hanging - Cruel -- Unusual Punishment.

as and

Coleman's contention here is that hanging, even if carried

out exactly, so that death results from a broken neck, is cruel

-16-

and unusual punishment.

The State responds that there is no evidence in this

case that shows that death from hanging, when properly carried

out, is anything other than swift and immediate, or that

hanging results in any more suffering than that associated

with electrocution or other modes of execution.

Hanging is the only kind of execution provided by Montana

statutes. The legislature has not seen fit to change it, although

several attempts in recent years have been made to eliminate

capital punishment altogether. In that limited sense, the

legislature has made a choice to continue the present provisions.

We have no power to change these settled provisions of the

law, nor can we say that hanging is constitutionally cruel and

unusual.

7. Disposition.

This opinion in addition to our opinion handed down June

20, 1979, constitutes our decision in this case.

Let remitittur be issued from this Court to the District

and

Court for the purpose of resetting the execution date,/complying

with our opinion and order promulgated June 20, 1979.

We Concur:

- - - --- --- -- - - - - - - - - - - - - - - - - -

Justices

Mr. Justice Daniel J. Shea concurring in part and dissenting

in part:

I concur in the conclusion reached by this Court that

the so-called Sandstrom-type instruction given in this case

was not error. As the Court reasons, the instruction is sub-

stantially different than that which was given in the Sandstrom

case. On the other hand, I do not believe that it was a

model instruction which should be given as a matter of course

in criminal trials.

One of the reasons this Court granted defendant's petition

for rehearing was to consider the impact of the decision of

the United States Supreme Court in Sandstrom v. Montana (19791,

U.S. , 99 S.Ct. 2450, 61 L.Ed.2d 39. We have, moreover,

since hearing this case on the petition for a rehearing, con-

cluded that defendant Sandstrom is entitled to a new trial

based on the opinion of the United States Supreme Court that

we cannot do otherwise unless we find that beyond a reasonable

doubt, the error is harmless. Using that standard, we could

not determine that the error in giving the instruction was

harmless. State v. Sandstrom (1978), Mont . , 580

1 t,b

P.2d 34-4, 35 St.Rep. 744. We therefore ordered a new trial.

Although the instruction given in defendant Coleman's case

was not a Sandstrom-type instruction, I believe that the court

has omitted the strongest fact as to why the instruction, even

assuming it was a carbon-copy of that given in Sandstrom, was

harmless error. The simple fact is that defendant Coleman

that

testified./ he was not present during the homicide; he had

nothing to do with it; and, indeed, that he did not know that

Nank planned to kill Miss Harstad. In essence, the defense

was alibi. In Sandstrom, on the other hand, the defendant

admitted the killing, but his defense was that he did not intend

to kill. There is a world of difference in these two defenses

and so is there a world of difference as to the potential

impact of a Sandstrom-type instruction.

In the Coleman case, Nank testified in lurid detail con-

cerning his and defendant Coleman's plan to kidnap, rape, and

kill Miss Harstad. The jury was thus given two clear choices:

To believe Coleman's alibi defense and thus conclude that Nank

alone planned to and killed Miss Harstad; or, on the other hand,

to believe Nank's testimony which implicated Coleman in a deli-

berate design to kidnap, rape, and kill Miss Harstad. Nank's

testimony, combined with the corroborating evidence implicating

Coleman in the crimes involved, is sufficient beyond a reasonable

doubt, to permit a jury conclusion that Coleman was guilty of

the crimes for which he was convicted. Under these circumstances,

once the jury chose to believe Nank (which, of course, also

implies a determination that Coleman was lying), no presumption

or no inference was needed to help the prosecution's case along.

For this reason, I have no trouble in concluding that even if

the instruction was a carbon-copy of that instruction forbidden

by the Sandstrom case, the error, beyond a reasonable doubt, was

harmless.

The majority has imbellished to an extent upon its original

opinion concerning the other issues decided in the original case,

and I emphasize that I do not agree with these statements and

conclusions.

In the last paragraph of its opinion here, the Court has

stated that its Opinion dated June 20, 1979, together with the

Opinion issued today, shall constitute the opinion in this case.

I dissented to that majority opinion and I state here that such

dissent shall also constitute my views on the questions surrounding

the imposition of the death penalty in this case. Nank's

bargain with the State saved his own life; but this very same

-19-

bargain sealed Coleman's date with the executioner. No

court should sanction such disparate results arising from

the commission of the same crimes. The tragedy of the senseless

killing perpetrated by Nank and Coleman is only compounded by

the senseless killing of Coleman which this Court has today

sanctioned. n

,ix&Ld~/-&

Just