Coleman v. State

No. 81-115

IN THE SUPREME COURT OF THE STATE OF MOEJTANA

1981

DEWEY EUGENE COLEMAN,

Petitioner and Appellant,

-vs-

STATE 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,

Plontana

John Maynard argued, Asst. Atty. General, ~ e l e n a ;

Montana

John S. Forsythe argued, County Attorney, Forsyth,

Montana

Submitted: April 29,' 1981

Decided :AUG 2 8 1981

Filed: .4UG 1 8 1981

Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e Opinion of

the Court.

Coleman a p p e a l s from a Rosebud C o u n t y D i s t r i c t C o u r t

d i s m i s s a l of h i s p e t i t i o n f o r p o s t - c o n v i c t i o n relief. Title

4 6 , C h a p t e r 2 1 , Montana Code A n n o t a t e d .

None o f the i s s u e s p r e s e n t e d by p e t i t i o n e r on t h i s

appeal a r e based in the underlying f a c t s of the criminal

cause. Therefore, the facts surrounding Coleman's

c o n v i c t i o n f o r t h e d e a t h of Peggy Lee H a r s t a d w i l l n o t be

recited. A f u l l t e x t of t h e s e f a c t s c a n be found i n our

d e c i s i o n o f a n e a r l i e r a p p e a l , S t a t e v . Coleman ( 1 9 7 8 ) , 1 7 7

Mont. 1, 5 7 9 P.2d 732. O p e r a t i v e p r o c e d u r a l f a c t s w i l l be

d i s c u s s e d w i t h r e f e r e n c e t o s p e c i f i c i s s u e s o f f e r e d by t h e

petitioner.

Petitioner Coleman presents eight issues for

r e s o l u t i o n by t h i s C o u r t :

1. Is p o s t - c o n v i c t i o n r e l i e f a new c i v i l a c t i o n o r a

c o n t i n u a t i o n of t h e p r e v i o u s c r i m i n a l c a u s e ?

2. S h o u l d t h e j u d g e h a v e r e c u s e d h i m s e l f when h i s

t e s t i m o n y is r e q u i r e d a s t o c e r t a i n c l a i m e d v i o l a t i o n s ?

3. Is petitioner not entitled to post-conviction

r e l i e f because he h a s been s e n t e n c e d t o d e a t h ?

4. Are c l a i m s o f c o n s t i t u t i o n a l v i o l a t i o n s b a r r e d by

res judicata because t h e y were d e c i d e d i n e a r l i e r Coleman

appeals?

5. Were t h i r t e e n o f C o l e m a n ' s c o n s t i t u t i o n a l c l a i m s

properly dismissed because "they include vague new

a l l e g a t i o n s , t h e y a r e t o o vague t o s t a t e new c l a i m s , o r a r e

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 " b e c a u s e he f a i l e d t o r a i s e them i n h i s d i r e c t a p p e a l

and b e c a u s e t h e y a r e w i t h o u t m e r i t " ?

I. POST-CONVICTION RELIEF AS CIVIL OR C R I M I N A L ACTION

T h i s Court r e c o g n i z e s t h e unique n a t u r e of t h e p o s t -

conviction remedy. Montana law does not label the

proceeding a s e i t h e r c i v i l or c r i m i n a l , although t h e chapter

providing post-conviction relief is in the criminal

procedure title. Title 46, Chapter 21, Montana Code

Annotated.

The Montana p r o v i s i o n s o f s e c t i o n 46-21-101 e t seq.,

MCA, a r e d e r i v e d from t h e Uniform P o s t C o n v i c t i o n P r o c e d u r e

A c t and a r e e s s e n t i a l l y s i m i l a r t o the federal statute (28

U.S.C. 52255). The f e d e r a l c o u r t s have c o n s i s t e n t l y h e l d

that an action under 28 U.S.C. S2255 is a civil action,

indepe n d e n t of t h e o r i g i n a l c r i m i n a l c o n v i c t i o n . See H e f l i n

v. United States (1959), 358 U.S. 415, 79 S.Ct. 451, 3

L.Ed.2d 407. The same r u l e h a s been a d o p t e d i n o t h e r s t a t e s

which h a v e a d o p t e d t h e u n i f o r m a c t . C l a r k v. State (1969),

92 I d a h o 827, 452 P.2d 54.

In those s t a t e s with similar provisions not neces-

s a r i l y d e r i v i n g from t h e uniform a c t , t h e c o u r t s have been

consistent in their view that post-conviction relief is

civil in nature and independent of the criminal action.

S t a t e v. Hannagan ( A l a s k a 1 9 7 7 ) , 559 P.2d 1059; Noble v.

State (1973), 109 A r i z . 537, 514 P.2d 458; State v.

Richardson (1965), 194 Kan. 471, 399 P.2d 799; Smith v.

State ( 1 9 6 8 ) , 79 N . M . 450, 444 P.2d 961; Noble v. Sigler

(8th Cir. 1 9 6 5 ) , 351 F.2d 673, c e r t . d e n i e d , 385 U.S. 853,

87 S . C t . 98, 17 L.Ed.2d 81, (held only t h a t post-conviction

a p p l i c a t i o n s a r e c i v i l i n n a t u r e ) ; People v. Jones (1975),

30 Ill.App.3d 706, 332 N.E.2d 411; State v. Smith (Mo.

1 9 5 9 ) , 324 S.W.2d 707; T o l a r v . S t a t e ( F l a . 1 9 6 7 ) , 1 9 6 So.2d

1.

Clearly, t h i s is n o t i n t e n d e d t o be a n o t h e r form o f

appeal from a criminal case, but a separate c i v i l action

aimed a t v a c a t i n g , s e t t i n g aside or correcting a sentence.

There i s no Montana case interpreting the nature of the

post-proceeding petition, but the proceeding could be

c l o s e l y analogized t o t h a t seeking a w r i t of habeas corpus

which t h i s Court decided i n 1927 was a n independent c i v i l

proceeding. A u g u s t v . B u r n s ( 1 9 2 7 ) , 79 Mont. 198, 213, 255

P. 737, 741.

I t i s i m p o r t a n t t o n o t e t h a t w e do n o t h e r e i n t e n d t o

erode the fundamental principle discussed below that the

s e n t e n c i n g c o u r t is t h e p r o p e r c o u r t f o r t h e p o s t - c o n v i c t i o n

petition. W a r e mindful t h a t a p a r t y t o a c i v i l a c t i o n is

e

e n t i t l e d t o two s u b s t i t u t i o n s of p r e s i d i n g j u d g e s . Section

3-1-801-4, MCA ( a d o p t e d by o r d e r o f t h i s C o u r t on December

29, 1 9 7 6 , 34 S t . R e p . 26). However, b e c a u s e a n a p p l i c a n t f o r

post-conviction relief is directed by the more specific

provisions of the post-conviction statute to bring the

p e t i t i o n in t h i s Court or i n t h e c o u r t t h a t s e n t e n c e d him,

w e f i n d t h a t t h e two j u d g e d i s q u a l i f i c a t i o n g r a n t o f s e c t i o n

3-1-801-4, MCA, is unavailable to the post-conviction

petitioner. In Montana, when a general statute is in

c o n f l i c t with a s p e c i f i c a c t , the s p e c i f i c s t a t u t e w i l l take

precedence. S e c t i o n 1-2-102, MCA; I n Re C o l e m a n ' s Estate

( 1 9 5 7 ) , 1 3 2 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. W w i l l proceed t o consider t h e

e

i s s u e s r a i s e d on t h e a p p e a l t o t h i s C o u r t . Coleman c o n t e n d s

t h a t i t was e r r o r t o d e n y v a r i o u s o f h i s r e q u e s t s w i t h o u t a n

evidentiary hearing. I t is n o t e r r o r t o d e n y an a p p l i c a t i o n

for post-conviction r e l i e f w i t h o u t an e v i d e n t i a r y h e a r i n g i f

the allegations are without merit or would otherwise not

e n t i t l e the petitioner to relief. Clark v. State, supra;

T r a m e l v . S t a t e ( 1 9 6 8 ) , 92 I d a h o 6 4 3 , 448 P.2d 649; D o n n e l l y

v. S t a t e ( A l a s k a 1 9 7 3 ) , 516 P.2d 396 ( a l l e g a t i o n s in post-

c o n v i c t i o n p e t i t i o n were t o o vague and i l l u s o r y t o warrant

e v i d e n t i a r y h e a r i n g ) ; Widermyre v . S t a t e ( A l a s k a 1 9 6 9 ) , 452

P.2d 885; People v. Lyons ( 1 9 7 8 ) , 196 Colo. 384, 585 P.2d

916; Cook v . S t a t e ( 1 9 7 6 ) , 220 Kan. 223, 552 P.2d 9 8 5 .

The decision to admit or deny an application for

post-conviction relief i s a d i s c r e t i o n a r y o n e and o n e t h a t

w i l l n o t be d i s t u r b e d by t h i s C o u r t a b s e n t a c l e a r a b u s e o f

discretion. S e c t i o n 46-21-201, MCA; S t a t e v. Ybarra ( 1 9 7 4 ) ,

22 A r i z . A p p . 330, 527 P.2d 107; Brudos v . Cupp ( 1 9 7 7 ) , 3 1

0r.App. 25, 569 P.2d 680; S u l l i v a n v . S t a t e ( 1 9 7 7 ) , 222 Kan.

222, 564 P.2d 455.

11. RECUSAL OF THE SENTENCING J U D G E

Coleman n e x t m a i n t a i n s t h a t t h e d i s t r i c t j u d g e s h o u l d

have recused himself as presiding judge over his petition

for post-conviction relief i n l i g h t o f t h e f a c t t h a t h e was

the sentencing judge . Petitioner observes that in a

post-conviction proceeding, the sentencing judge would

l i k e l y be c a l l e d t o t e s t i f y a s t o , i n t e r a l i a , t h e p r o p r i e t y

of t h e death sentence. C i t i n g 46 Am.Jur .2d J u d g e s , S91 a t

1 5 8 , Coleman s u b m i t s t h a t a j u d g e s h o u l d e x c u s e h i m s e l f a s a

m a t t e r of c o u r s e i f i t a p p e a r s t h a t h e may be c a l l e d a s a

witness. W disagree.

e

Coleman f a i l s t o r e c o g n i z e t h e c o m p e l l i n g p u r p o s e and

policy considerations behind that portion of the statute

( s e c t i o n 46-21-103, MCA) which d i r e c t s t h a t a p e t i t i o n f o r

post-conviction relief be filed in either the court of

conviction or t h i s Court. S e e a l s o s e c t i o n 46-21-101, MCA

("may p e t i t i o n t h e c o u r t which imposed t h e s e n t e n c e .. .").

H i s t o r i c a l l y , having t h e s e n t e n c i n g judge p r e s i d e a t

t h e s u b s e q u e n t p r o c e e d i ng h a s been e a r n e s t l y advocated f o r

the following reasons: (1) i t reduces the burden on the

D i s t r i c t C o u r t a t t h e p l a c e of c o n f i n e m e n t ; ( 2 ) it reduces

the cost of the proceeding since most of the witnesses

l i k e l y t o be c a l l e d a r e probably in the l o c a l e where t h e

trial occurred; and, (3) the convicting court is more

familiar with t h e t o t a l i t y of t h e f a c t s and c i r c u m s t a n c e s

surrounding the case. Commissioners' Comment, 11 U . L . A .

Post Conviction Procedure §3 (1974). Still another

important consideration was enunciated by Idaho Supreme

Court J u s t i c e Donaldson i n S t i l l v . S t a t e ( 1 9 7 4 ) , 95 I d a h o

"Although it d o e s n ' t m a t t e r whether t h e

p r o c e e d i n g is denominated a s one f o r habeas

c o r p u s o r f o r p o s t - c o n v i c t i o n r e l i e f , i t is

s t i l l n e c e s s a r y t h a t t h e p r o c e d u r e s of t h e

Uniform P o s t - C o n v i c t i o n P r o c e d u r e Act b e

followed. The A c t was d e s i g n e d t o q i v e t h e

..................................... n i t i a l

d i s t r i c t c o u r t w h i c h made t h e i

d e t e r m i n a t i o n s a chance t o c o r r e c t anv

mistakes or i r r e q u l a r i t i e s t h a t occurred i n

t h a t court. In addition, t h a t court has

b e f o r e i t a l l t h e f a c t s r e q u i r e d t o make s u c h

a determination. f here fore, t h e a p p l i c a t i o n

o r p e t i t i o n f o r r e l i e f m u s t be f i l e d i n t h e

d i s t r i c t c o u r t where t h e c o n v i c t i o n o c c u r r e d .

I . C . § 19-4902." (Emphasis added.)

This Court is also of the view that the post-

conviction court judge should only recuse himself if the

petitioner shows t h a t t h e j u d g e is t h e source of m a t e r i a l

evidence otherwise unobtainable. A t r i a l judge's f a m i l i a r i t y

with a case does not automatically make him a material

witness in post-conviction proceedings. Bresnahan v. Luby

( 1 9 6 6 ) , 160 Colo. 455, 418 P.2d 1 7 1 , 22 A.L.R.3d 1193. The

Bresnahan c o u r t a l s o emphasized t h e i m p o r t a n c e of t h e t r i a l

judge's f a m i l i a r i t y with t h e c r i m i n a l c a s e which i s b e i n g

c o l l a t e r a l l y a t t a c k e d by t h e c i v i l a c t i o n . The c a s e a t b a r

involved thousands of p a g e s of testimony, briefs, motions

and t r i a l c o u r t r e c o r d s . W a r e mindful of

e t h e d e l a y and

burden on the efficient administration of justice which

would o c c u r if another judge were r e q u i r e d to familiarize

himself or herself with t h i s record for the purposes of a

post-conviction evidentiary hearing. Such d e l a y c a n o n l y be

justified by the strongest showing of materiality and

unavailability of evidence sought t o be adduced from t h e

s e n t e n c i n g judge .

In this case, petitioner never makes it entirely

c l e a r t o t h i s C o u r t j u s t what t e s t i m o n y h e hoped t o e l i c i t

from the district judge. Abstract excursions into the

m e n t a l p r o c e s s e s o f t h e s e n t e n c i n g j u d g e do n o t j u s t i f y t h e

p r o forma r e c u s a l of a j u d g e who i s f u l l y a c q u a i n t e d w i t h

the case. I t a p p e a r s t h a t a t b e s t p e t i t i o n e r was a t t e m p t i n g

to embark on a fishing trip, hoping to uncover damaging

testimony about the fairness of the sentence. Such a

d i s c o v e r y p r o c e d u r e would n o t b e allowed w i t h any w i t n e s s

b u t i s e s p e c i a l l y s u s p e c t when d i r e c t e d a t t h e t r i a l j u d g e .

S e e Moore v . P e o p l e ( 1 9 7 1 ) , 174 C o l o . 570, 485 P.2d 1 1 4 .

We find, therefore, that unless some specific and

compelling evidence is sought to be adduced from the

testimony of t h e s e n t e n c i n g j u d g e and s u c h e v i d e n c e c a n be

f o u n d nowhere e l s e , f o r many s u b s t a n t i a l reasons the t r i a l

judge should also preside over a petition for post-

conviction r e l i e f . The A c t itself lends credence t o t h i s

l i n e of reasoning, and it c a n be e a s i l y i n f e r r e d t h a t t h e

legislature, in providing that a post-conviction petition

s h o u l d be filed i n t h e c o u r t of conviction, intended t h a t

the sentencing judge preside over the post-conviction

proceeding. The s t a n d a r d o f proof regarding the necessity

of a sentencing judge's testimony is high; only the

s t r o n g e s t showing o f m a t e r i a l i t y and u n a v a i l a b i l i t y w a r r a n t s

recusal. S e e I n R e C o n t i n e n t a l V e n d i n g Machine C o r p . (2nd

Cir. 1976), 543 F.2d 986. The reasons a d v a n c e d by p e t i -

tioner for recusal of the trial judge were simply not

s u f f i c i e n t t o j u s t i f y a s u b s t i t u t i o n of judges.

111. APPLICABILITY OF POST-CONVICTION PROCEDURE TO CAPITAL

CONVICTIONS

I n r e g a r d t o t h e t h i r d i s s u e , s e c t i o n 46-21-101, MCA,

recites in applicable part:

" C i r c u m s t a n c e s i n which v a l i d i t y o f s e n t e n c e

may be c h a l l e n q e d . A p e r s o n adTudged g u i l t y

o f an o f f e n s e i n a c o u r t o f r e c o r d who h a s no

a d e q u a t e remedy o f a p p e a l . . .may p e t i t i o n

t h e c o u r t which imposed t h e s e n t e n c e , t h e

supreme c o u r t , o r a n y j u s t i c e o f t h e supreme

court t o vacate, s e t aside, or correct the

sentence."

T h i s Court has n o t s p e c i f i c a l l y addressed t h e ques-

t i o n of whether c a p i t a l l y - s e n t e n c e d defendants a r e e n t i t l e d

t o t h e p r o t e c t i o n s of t h e post-conviction r e l i e f s t a t u t e , or

whether t h e a u t o m a t i c s e n t e n c e r e v i e w s t a t u t e , s e c t i o n 46-

18-307 e t s e q . , MCA, s t a n d s i n t h e p l a c e of post-conviction

relief. W e a r e a w a r e o f t h e l a n g u a g e o f Mr. J u s t i c e S h e e h y

i n S t a t e v. Coleman ( 1 9 7 9 ) , - Mont. , 605 P.2d 1000,

1006, 36 S t . R e p . 1134, 1135, cert. denied, - U.S. 1

100 S . C t . 2952, L.Ed.2d , w h e r e i n he w r i t e s :

" B e c a u s e t h e r e v i e w c o n d u c t e d by t h i s C o u r t

[pursuant t o t h e automatic review p r o v i s i o n s

o f s e c t i o n 46-18-307 t h r o u g h s e c t i o n 46-18-

3 1 0 , MCA] s t a t u t o r i l y s t a n d s i n p l a c e o f a n y

r e c o u r s e t o t h e S e n t e n c e Review D i v i s i o n , t h e

c o m p l e t i o n o f t h i s r e v i e w w i l l mark t h e end

o f s t a t e a c t i o n upon t h i s c a u s e , e x c e p t i n g

a n y a c t i o n upon a p e t i t i o n f o r r e h e a r i n g . "

(Emphasis added. )

But c f . , S t a t e v . McKenzie ( 1 9 7 8 ) , 1 7 7 Mont. 280, 322, 581

That language, a s noted, only specifically pertains

t o t h e s e n t e n c e r e v i e w p r o c e d u r e and o n l y g e n e r a l l y c o u l d i t

be interpreted to represent a bar to the utilization of

post-conviction procedure. The p o s t - c o n v i c t i o n s t a t u t e does

n o t l i m i t its p r o v i s i o n s t o noncapitally-sentenced persons,

nor does t h e automatic review s t a t u t e herald itself a s an

e x c l u s i v e remedy. Such a n i n t e r p r e t a t i o n would h a v e t o be

inferred from the nature of the statutes and policies

involved. W do n o t b e l i e v e t h a t s u c h a n i n t e r p r e t a t i o n c a n

e

be g i v e n t o t h e s e s t a t u t e s .

In arriving a t t h i s conclusion, t h e p l a i n meaning o f

the post-conviction s t a t u t e is p a r t i c u l a r l y p e r s u a s i v e . The

statute provided that "a person adjudged guilty of an

o f f e n s e " is e n t i t l e d t o a c c e s s t o t h e p o s t - c o n v i c t i o n p r o c e -

dure. If the legislature intended this statute to be

a p p l i e d o n l y i n n o n c a p i t a l s e n t e n c e s , w e must c o n c l u d e t h a t

i t would h a v e e x p r e s s l y done s o . The t e r m s o f " a p e r s o n " o r

" a n y p e r s o n " and " a c r i m e " o r " a n y c r i m e " a r e g e n e r i c t e r m s

e n c o m p a s s i n g a v e r y b r o a d s p e c t r u m o f a c t s and a c t o r s . Any

l i m i t a t i o n on t h e g r a n t o f r e v i e w i n p o s t - c o n v i c t i o n proce-

d u r e s m u s t b e made by t h e l e g i s l a t u r e . It is c l e a r l y n o t

t h e power of t h i s Court t o i n t e r p r e t t h e l a w i n a manner

contrary t o legislative intent. S e e American L i n e n S u p p l y

Co. v . DOR ( 1 9 8 0 ) , Mont. , 617 P.2d 1 3 1 , 37 S t . R e p .

1 7 0 7 ; Dunphy v . Anaconda Co. ( 1 9 6 8 ) , 1 5 1 Mont. 7 6 , 438 P.2d

Although t h e S t a t e a r g u e s p e r s u a s i v e l y r e g a r d i n g t h e

l e g i s l a t u r e ' s i n t e n t r e g a r d i n g f i n a l i t y o f s e n t e n c e s , we do

not believe that the "plain meaning" of the statute

demonstrates its inapplicability t o capitally-sentenced

offenders. Though aware of these competing legislative

interests, t h i s C o u r t d o e s n o t h a v e t h e power t o g o beyond

t h e c l e a r and u n e q u i v o c a l p r o v i s i o n s o f t h e l a w .

IV. APPLICABILITY OF RES J U D I C A T A TO PETITION FOR POST-

CONVICTION R E L I E F

Montana l a w is b e r e f t of any d e c i s i o n on w h e t h e r t h e

d o c t r i n e o f r e s j u d i c a t a is a p p l i c a b l e t o a p r a y e r f o r p o s t -

conviction r e l i e f . A s a g e n e r a l p r o p o s i t i o n , we h a v e h e l d :

"The d o c t r i n e o f r e s j u d i c a t a s t a t e s t h a t a

f i n a l judgment on t h e m e r i t s by a c o u r t o f

competent j u r i s d i c t i o n is c o n c l u s i v e a s t o

c a u s e s of a c t i o n o r i s s u e s t h e r e b y l i t i g a t e d ,

a s t o t h e p a r t i e s and t h e i r p r i v i e s , i n a l l

o t h e r a c t i o n s i n t h e same o r a n y o t h e r

j u d i c i a l t r i b u n a l of concurrent jurisdic-

tion." Meagher Co. Water D i s t . v . W a l t e r

( 1 9 7 6 ) , 1 6 9 Mont. 358, 361, 547 P.2d 8 5 0 ,

The d o c t r i n e b a r s r e c o n s i d e r a t i o n o f a n i s s u e i f f o u r

elements a r e present: " ( 1 ) t h e p a r t i e s or t h e i r p r i v i e s must

b e t h e same; ( 2 ) the subject-matter of t h e a c t i o n must be

t h e same; ( 3 ) t h e i s s u e s m u s t be t h e same, and m u s t r e l a t e

t o t h e same s u b j e c t - m a t t e r ; and ( 4 ) t h e c a p a c i t i e s of the

p e r s o n s m u s t be t h e same i n r e f e r e n c e t o t h e s u b j e c t - m a t t e r

and t o t h e i s s u e b e t w e e n t h e m . " Brannon v . Lewis and C l a r k

C o u n t y ( 1 9 6 3 ) , 1 4 3 Mont. 200, 207-208, 387 P.2d 706, 711.

A s i d e from t h e b a r of res judicata, t h i s Court has

consistently refused t o allow r e l i t i g a t i o n i n a c o l l a t e r a l

proceeding of i s s u e s determined i n a d i r e c t appeal, I n Re

Q u i g g ( 1 9 7 6 ) , 1 6 8 Mont. 5 1 2 , 544 P.2d 441, and S p u r l o c k v .

C r i s t (1980), Mont. , 614 P.2d 4 9 8 , 501, 37 S t . R e p .

1146, in some cases by reaffirming the prior holdings.

D i g i a l l o n a r d o v. B e t z e r ( 1 9 7 3 ) , 1 6 3 Mont. 1 0 4 , 1 0 5 , 515 P.2d

705. Accord, Orricer v. State (1970), 8 5 S.D. 293, 181

N.W.2d 461.

I n l i g h t of t h e d e a r t h , i f n o t complete absence, of

g u i d i n g Montana c a s e law i n t h i s r e g a r d , a r e v i e w o f t h e l a w

a s i t h a s e v o l v e d and d e v e l o p e d w i t h r e g a r d t the applica-

k. r3&

b i l i t y o f r e s j u d i c a t a t o t h e F e d e r a l Act,-;;I..2-'U.S.C. S2255,

w i l l aid.

H i s t o r i c a l l y the p r i n c i p l e of res judicata was n o t

seen t o apply t o w r i t s of habeas corpus or p e t i t i o n s f o r

relief under S2255. See, Sokol, Federal Habeas Corpus

S21.5; cf ., K e l l e y , F i n a l i t y and H a b e a s C o r p u s , 78 W.Va. Law

Rev. 1 (1975). However, a new r u l e h a s been recognized

r e g u l a t i n g s u c c e s s i v e f e d e r a l m o t i o n s on g r o u n d s p r e v i o u s l y

h e a r d and d e t e r m i n e d . I n Sanders v. United S t a t e s ( 1 9 6 3 ) ,

373 U.S. 1, 83 S . C t . 1 0 6 8 , 1 0 L.Ed.2d 148, t h e Court s t a t e d :

" C o n t r o l l i n g w e i g h t may be g i v e n t o d e n i a l of

a p r i o r a p p l i c a t i o n f o r f e d e r a l habeas corpus

o r 52255 r e l i e f o n l y i f ( 1 ) t h e same g r o u n d

p r e s e n t e d i n t h e s u b s e q u e n t a p p l i c a t i o n was

d e t e r m i n e d a d v e r s e l y t o t h e a p p l i c a n t on t h e

p r i o r a p p l i c a t i o n , ( 2 ) t h e p r i o r determina-

t i o n was on t h e m e r i t s , and ( 3 ) t h e e n d s o f

j u s t i c e would n o t be s e r v e d by r e a c h i n g t h e

m e r i t s of t h e su b s e q u e n t a p p l i c a t i o n . " 373

U.S. a t 1 5 .

Where a t r i a l o r a p p e l l a t e c o u r t h a s d e t e r m i n e d t h e

f e d e r a l p r i s o n e r ' s c l a i m , d i s c r e t i o n may i n a p r o p e r c a s e be

e x e r c i s e d a g a i n s t t h e g r a n t o f a 52255 h e a r i n g . Where t h e

trial or appellate court has considered and decided a

f e d e r a l p r i s o n e r ' s c l a i m , i t may be o p e n t o t h e 52255 c o u r t

t o determine t h a t , on t h e b a s i s o f t h e m o t i o n s , f i l e s and

records, the prisoner is entitled to no relief. See

Thornton v. United States (D.C. Cir. 1 9 6 6 ) , 368 F.2d 822

( d i s s e n t i n g o p i n i o n of W r i g h t , J . ) .

The r e s j u d i c a t a r u l e h a s now come t o a p o i n t i n i t s

e v o l u t i o n where i t c a n be s a i d w i t h c e r t a i n t y t h a t a " g r o u n d

for relief previously considered on a p p e a l from a f e d e r a l

prisoner 's conviction cannot be reconsidered on a motion

attacking sentence under 28 U . S . C . S . 52255." Torcia,

Wharton's Criminal Procedure, S649 a t 401 ( 1 9 7 6 ) and c a s e s

cited therein.

Res j u d i c a t a c a n n o t be a p p l i e d i n s u c h a manner a s t o

deprive Coleman of the right to file a post-conviction

p e t i t i o n and t o u s e p o s t - c o n v i c t i o n p r o c e d u r e . However, res

j u d i c a t a c a n be u s e d t o b a r t h e r e h e a r i n g o f i s s u e s a l r e a d y

l i t i g a t e d under the rule in Sanders. This interpretation

preserves the Montana post-conviction remedy by requiring

judicial i n q u i r y i n t o t h e p r o p r i e t y o f t h e s e n t e n c e and o f

the detention, while preventing abuse of t h e p r o c e d u r e by

relitigation of a claim previously considered and found

insufficient. A s discussed i n S a n d e r s , r e l i t i g a t i o n would

mean a w a s t e o f j u d i c i a l e f f o r t , r i s k i n g a c l u t t e r i n g o f t h e

court's limited resources with collateral attacks already

decided on the merits. As one court put it, "judicial

economy d i c t a t e s r e s t r i c t i v e l i m i t a t i o n s on r e r u n s . " United

S t a t e s e x r e l . Townsend v . Twomey ( 7 t h C i r . 1 9 7 1 ) , 452 F.2d

3 5 0 , 3 5 7 , c e r t . d e n i e d , 409 U.S. 854. Some s t a t e s h a v e g o n e

beyond S a n d e r s and statutorily prohibit more than one

c o l l a t e r a l a t t a c k on a s i n g l e c o n v i c t i o n . See 111.Ann.Stat.

C. 3 8 , 9 122-3 ( 1 9 6 4 ) ; M0.Sup.Ct.R. 2 7 . 2 6 ( d ) ; Wyo.Stat.Ann.

Tit. 7 , S 7-408.3 (1963).

We, therefore, adopt the Sanders criteria as

p r e v i o u s l y quoted i n t h i s opinion. W e a f f i r m t h e holding of

t h e D i s t r i c t Court t h a t the following twenty-seven issues

h a v e b e e n c o n s i d e r e d p r e v i o u s l y and d e c i d e d by t h i s C o u r t

and Coleman h a s a l l e g e d no new f a c t s o r l a w w i t h r e s p e c t t o

t h e s e i s s u e s which r e q u i r e a d d i t i o n a l c o n s i d e r a t i o n s : F, G ,

H , I , J , L , M , N , P , R , S , T , V , W , Y , Z , A A , D D , G G , H H ,

11, J J , K K , L L , MM, NN, and P P .

V. VAGUENESS AS BAR TO EVIDENTIARY H E A R I N G

The l o w e r c o u r t d e n i e d t h i r t e e n of Coleman's c l a i m s

because t h e y were t o o vague to s t a t e new c l a i m s o r were

u n s u p p o r t e d by a u t h o r i t y and w e r e , t h e r e f o r e , b a r r e d b y r e s

judicata. The State argued in the District Court that

" v a g u e new a l l e g a t i o n s " d o n o t p r e s e n t a p r o p e r b a s i s f o r

review. W agree.

e

Vague r e h a s h i n g s o f i s s u e s p r e v i o u s l y a d j u d i c a t e d by

a c o u r t of competent j u r i s d i c t i o n will n o t make u n w o r t h y

claims magically meritorious. Naked a l l e g a t i o n s of injus-

t i c e c a n n o t c o n s t i t u t e new g r o u n d s o r p r o v i d e any b a s i s f o r

relief. Cf. Hooker v. People ( 1 9 7 0 ) , 173 Colo. 226, 477

P.2d 376. Again, we m u s t d e f e r t o t h e d i s c r e t i o n of the

District Court i n determining if the claims made in the

petition are valid or merely previously decided issues in

disguise. Andrews v. Morris (Utah 1 9 8 0 ) , 607 P.2d 816,

cert. denied, 446 U.S. 949, 101 S.Ct. 254, 66 L.Ed.2d 120.

Moreover, t h i s Court w i l l not disturb the post-conviction

court's judgment in this regard absent a clear abuse of

discretion. S e e Redd v. State ( 1 9 6 7 ) , 199 Kan. 431, 429

P.2d 925 (emphasizing great discretion in the post-

conviction court to make initial judgments regarding

v a l i d i t y and s u b s t a n c e o f c l a i m s ) .

W a f f i r m t h e h o l d i n g of t h e D i s t r i c t C o u r t t h a t t h e

e

following thirteen issues or claims a r e dismissed as -

res

j u d i c a t a b e c a u s e t h e vague new a l l e g a t i o n s do n o t a f f e c t t h e

v a l i d i t y of t h e p r i o r d e t e r m i n a t i o n of t h i s Court: B, E, K,

Q, U , X, CC, EE, FF, 0 0 , QQ, RR, and X X .

VI. APPLICABILITY OF NEWLY DEVELOPED AUTHORITY

W n e x t c o n s i d e r Coleman's c o n t e n t i o n

e t h a t seven of

h i s c l a i m s were n o t p r o p e r l y d i s m i s s e d on t h e g r o u n d s t h a t

t h e new a u t h o r i t y c i t e d was e i t h e r inapplicable or c l e a r l y

distinguishable, l e a v i n g t h e c l a i m s b a r r e d by r e s j u d i c a t a .

C a s e s h a v e r e c o g n i z e d t h a t a 1t h o u g h p a r t i c u l a r i s s u e s have

been a d d r e s s e d and d e t e r m i n e d a d v e r s e l y t o a p r i s o n e r on a

direct appeal, a post-conviction court may nevertheless

consider such m a t t e r s where there has been a substantial

change i n t h e a p p l i c a b l e law. United S t a t e s v. Sorenson (D.

N.Y. 1 9 7 0 ) , 308 F.Supp. 1 2 6 8 ; Robson v . U n i t e d S t a t e s (1st

Cir. 1975), 526 F . 2 d 1145. As t o t h e s e s e v e n claims, we

n o t e t h a t no e v i d e n t i a r y h e a r i n g i s r e q u i r e d s i n c e t h e s e a r e

questions of law o n l y which a r e i n v o l v e d . A c o u r t 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 8 2 3 , c e r t . d e n i e d , 3 9 3 U.S. 1057, 89 S.Ct.

698, 2 1 L.Ed.2d 698, reh. denied, 393 U.S. 1124, 89 S . C t .

9 9 7 , 22 L.Ed.2d 133.

W e h a v e r e v i e w e d C o l e m a n ' s s e v e n c l a i m s and f i n d t h a t

the cases cited by Coleman are distinguishable. We

therefore affirm the District Court's holding that the

f o l l o w i n g s e v e n c l a i m s a r e b a r r e d b y r e s j u d i c a t a a s t h e new

a u t h o r i t y c i t e d is i n a p p l i c a b l e o r c l e a r l y d i s t i n g u i s h a b l e :

A, C, D , 0 , BB, TT, a n d W.

VII. DISMISSAL ON GROUNDS OF WAIVER AND LACK OF MERIT

The D i s t r i c t C o u r t h e l d t h a t f i v e o f C o l e m a n ' s claims

w e r e d i s m i s s e d b e c a u s e h e f a i l e d t o r a i s e them on h i s d i r e c t

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 t o present

claims in earlier proceedings would not bar them from

p r e s e n t a t i o n a t t h i s time. However, w e have reviewed t h e

c l a i m s and f i n d t h e same t o b e u n m e r i t o r i o u s . I t was not

e r r o r f o r t h e c o u r t t o d e n y them s u m m a r i l y . Sanders, supra;

Widermyre v . State ( A l a s k a 1 9 6 9 ) , 452 P . 2 d 885; S t a t e v.

Richmond ( 1 9 7 7 ) , 114 A r i z . 1 8 6 , 560 P.2d 4 1 , c e r t . d e n i e d ,

433 U.S. 915, 97 S . C t . 2988, 53 L.Ed.2d 1101; People v.

Trujillo ( 1 9 7 6 ) , 190 C o l o . 497, 549 P.2d 1 3 1 2 ; Andrews v .

Morris, supra.

W a f f i r m t h e d i s m i s s a l by t h e D i s t r i c t C o u r t o f t h e

e

f o l l o w i n g c l a i m s on t h e b a s i s t h a t t h e y a r e w i t h o u t m e r i t :

SS, U U , WW, Y Y , and Z Z .

Two hearings were held, with petitioner an6 his

attorney present, on t h e f o l l o w i n g d a t e s , J u n e 1 4 , 1978 and

J u l y 1 6 and 1 9 , 1 9 7 8 . A t t h e J u n e 14 h e a r i n g , counsel for

petitioner noted t o t h e c o u r t t h a t i n view of the fact a

p r e s e n t e n c e r e p o r t had b e e n p r e p a r e d , h e was n o t p r e s e n t i n g

an a d d i t i o n a l r e p o r t . The p r e s e n t e n c e r e p o r t c o n t a i n e d t h e

i n f o r m a t i o n t h a t p e t i t i o n e r had n e v e r b e e n c o n v i c t e d o f a n y

prior felony prior to the present charge. Counsel for

p e t i t i o n e r noted:

"May t h e r e c o r d show t h a t on b e h a l f o f t h e

d e f e n d a n t , we a r e n o t g o i n g t o c a l l t h i s

g e n t l e m a n [ p r o b a t i o n o f f i c e r Thomas L o f l a n d ]

t o t h e stand a t t h i s time f o r examination.

T h a t d o e s n o t mean we a g r e e w i t h t h e r e p o r t ,

s i m p l y t h a t we a r e n o t g o i n g t o c a l l him a s a

witness.

"THE COURT: Very w e l l . Now t h e announcement

t h a t t h e defense does n o t intend t o produce

any ... c a l l any w i t n e s s e s t o e s t a b l i s h any

mitigating circumstances, the Court has

b e f o r e it a l l m a t t e r s d u r i n g t h e c o u r s e of

t h e t r i a l , heard t h e testimony r e l a t i n g t o

t h e a g g r a v a t i n g c i r c u m s t a n c e s and a l s o some

mitigating circumstances . . ."

Thereafter, t h e c o u r t requested each s i d e t o submit

proposed f i n d i n g s of fact, conclusions of law and b r i e f s .

Both the petitioner and t h e S t a t e having submitted their

b r i e f s and f i n d i n g s and c o n c l u s i o n s , t h e c o u r t h e l d a s e c o n d

h e a r i n g on J u l y 1 0 , 1 9 7 8 .

At t h e beginning of the July 10 h e a r i n g , the t r i a l

judge submitted t o p e t i t i o n e r ' s c o u n s e l and S t a t e c o u n s e l

his findings and conclusions and thereafter counsel for

petitioner read into the record a prepared statement in

mitigation. With t h i s r e c o r d b e f o r e u s , w e c a n n o t f a u l t t h e

t r i a l c o u r t i n t h e s e n t e n c i n g of p e t i t i o n e r . Petitioner, a t

the f i r s t hearing, did not t e s t i f y in mitigation, declined

t o examine t h e o f f i c e r who p r e p a r e d t h e p r e s e n t e n c e r e p o r t ,

and was g i v e n a n o p p o r t u n i t y t o s u b m i t b o t h f u r t h e r b r i e f s

on t h e s e n t e n c i n g and h i s p r o p o s e d f i n d i n g s and c o n c l u s i o n s .

To now allege that he was denied due process and an

o p p o r t u n i t y t o p r e s e n t h i s a r g u m e n t is w i t h o u t m e r i t .

H e r e t h e t r i a l c o u r t was f a c e d w i t h some f o r t y - n i n e

separate claims for relief. While Carter v. Illinois

( 1 9 4 6 ) , 329 U.S. 1 7 3 , 67 S . C t . 2 1 6 , 9 1 L.Ed. 172, holds t h a t

s t a t e s are free t o devise their own s y s t e m s o f review of

c r i m i n a l c a s e s , t h e s y s t e m , a s i l l u s t r a t e d i n t h i s c a s e , now

a l l o w s p e t i t i o n e r two a p p e a l s , a r e s u l t n o t c o n t e m p l a t e d by

the legislature. The J u l y 1 0 h e a r i n g indicates that the

t r i a l judge, i n pronouncing s e n t e n c e , s t a t e d :

" I n pronouncing s e n t e n c e I do want t h e

p a r t i e s t o know t h a t t h i s i s e x t r e m e l y

a g o n i z i n g f o r t h e c o u r t t o make. I have n o t

looked a t t h e p o i n t s t h a t have been r a i s e d

l i g h t l y , b u t many o f t h e a r g u m e n t s r a i s e d by

t h e d e f e n s e , of c o u r s e have been c o n s i d e r e d

h e r e t o f o r e , and t h e j u r y h a s f o u n d f r o m t h e

f a c t u a l s t a n d p o i n t t h a t t h e d e f e n d a n t was

g u i l t y , beyond a r e a s o n a b l e d o u b t , and I do

not disagree with t h a t conclusion of t h e

jury. One m i t i g a t i n g c i r c u m s t a n c e i s t h a t

t h e defendant has n o t p r i o r t o t h i s t i m e been

c o n v i c t e d o f any f e l o n y , b u t i n v i e w o f t h e

e n o r m i t y o f t h e c r i m e c o m m i t t e d , and t h e

c o u r t ' s f e e l i n g t h a t t h i s one c i r c u m s t a n c e

d o e s n o t overcome t h e a g g r a v a t e d circum-

s t a n c e s , I h a v e made t o t h e e f f e c t , w r i t t e n

f i n d i n g s a s r e q u i r e d by l a w . Also I have

made c o n c l u s i o n s and judgment which h a v e been

f u r n i s h e d t o t h e d e f e n d a n t and t h e s t a t e a t

t h i s t i m e , and I w i l l o n l y a t t h i s t i m e r e a d

t h e c o u r t ' s c o n c l u s i o n s and j u d g m e n t . "

The s e n t e n c e and judgment a r e a f f i r m e d . The D i s t r i c t

C o u r t is d i r e c t e d t o s c h e d u l e a new d a t e f o r e x e c u t i o n .

W concur:

e

8L-Ld. q - i f i Q - 7 ~

Chief J u s t i c e

/

Justices

ono or able"^. ~4 L

D i s t r i c t Judge, s

p l a c e o f Mr. ~ u s t i c kJ o h n C.

Sheehy

Mr. J u s t i c e Frank B . Morrison, J r . , d i s s e n t i n g :

I respectfully dissent.

The f i r s t problem w i t h t h i s c a s e i s t h a t t h e d e f e n d a n t ' s

c o n v i c t i o n was based upon accomplice t e s t i m o n y which was n o t

s u f f i c i e n t l y c o r r o b o r a t e d by i n d e p e n d e n t e v i d e n c e . The

t r i a l c o u r t s h o u l d have d i r e c t e d a v e r d i c t i n d e f e n d a n t ' s

b e h a l f a t t h e t i m e of t r i a l . I w i l l q u o t e e x t e n s i v e l y from

t h e t r a n s c r i p t t o show t h a t t h e s t a t e ' s c a s e f a i l e d .

The second p a r t of t h e d i s s e n t w i l l d e a l w i t h i m p o s i t i o n

of t h e d e a t h p e n a l t y . That discussion concerns aggravating

c i r c u m s t a n c e s v e r s u s m i t i g a t i n g c i r c u m s t a n c e s and t h e c o n d i t i o n s

under which t h e d e a t h p e n a l t y may be imposed.

The d e f e n d a n t , Dewey Eugene Coleman, and R o b e r t Nank

met a t t h e V e t e r a n ' s H o s p i t a l i n S h e r i d a n , Wyoming. Coleman

was b e i n g t r e a t e d f o r d e p r e s s i o n . Nank had a h i s t o r y of

mental i l l n e s s .

Coleman and Nank were d i s c h a r g e d from t h e V e t e r a n ' s

H o s p i t a l and came t o Montana on Nank's m o t o r c y c l e . They

" r a n o u t of g a s " between Roundup, Montana and F o r s y t h ,

Montana, d u r i n g t h e e v e n i n g h o u r s of J u l y 4 , 1974. Coleman

t e s t i f i e d t h a t they unsuccessfully t r i e d t o hitchhike t o the

n e a r e s t town f o r t h e p u r p o s e of s e c u r i n g some g a s o l i n e . It

began t o g e t d a r k and Coleman s t a t e d t h a t , s i n c e Coleman was

b l a c k , he was i m p a i r i n g t h e i r a b i l i t y t o o b t a i n a r i d e and

Nank d i r e c t e d him t o h i d e h i m s e l f . Thereafter, according t o

Coleman, Nank was a b l e t o s t o p a v e h i c l e and o b t a i n a r i d e .

Coleman t e s t i f i e d t h a t Nank l e f t w i t h t h e d r i v e r and headed

i n t h e d i r e c t i o n of F o r s y t h . Coleman s a i d t h a t Nank r e t u r n e d

d r i v i n g t h e c a r sometime l a t e r and t h a t he was w e t and

emotionally upset. Nank i n s t r u c t e d Coleman t o remove t h e i r

t h i n g s from t h e m o t o r c y c l e and come w i t h him. Coleman

obeyed. They d r o v e , what was l a t e r d e t e r m i n e d t o be t h e

H a r s t a d v e h i c l e , p a s t F o r s y t h i n t h e d i r e c t i o n o f Rosebud.

Nank s t o p p e d between F o r s y t h and Rosebud and p i c k e d up

something which a p p e a r e d t o be a b l a n k e t . He a l s o s t o p p e d

a t a b a r i n Rosebud and o b t a i n e d two Cokes. He a d v i s e d

Coleman t h a t he had k i l l e d a woman. Nank headed back toward

F o r s y t h and t h e H a r s t a d v e h i c l e " r a n o u t of g a s " . According

t o Coleman, Nank went i n t o a f i e l d and h i d something.

Coleman was d i r e c t e d t o c a r r y a woman's p u r s e , which he d i d .

Coleman looked i n t h e p u r s e , found no money and, p u r s u a n t t o

Nank's d i r e c t i o n s , threw t h e p u r s e i n t o a c u l v e r t . The two

t h e n walked t o F o r s y t h , a r r i v i n g t h e r e i n t h e e a r l y morning

hours. Nank o b t a i n e d g a s o l i n e i n a can and h i t c h h i k e d back

t o t h e m o t o r c y c l e . Nank r e t u r n e d f o r Coleman and t h e y l e f t .

Coleman s t a t e d t h a t t h e y e v e n t u a l l y went t o B o i s e , I d a h o ,

where t h e y r e n t e d a n a p a r t m e n t and l i v e d u n t i l t h e t i m e of

their arrest. Coleman s t a t e d t h a t he d i d n o t r e p o r t Nank t o

t h e a u t h o r i t i e s b e c a u s e h e was a f r a i d of Nank and b e c a u s e he

was a f r a i d of b e i n g i m p l i c a t e d .

Nank's t e s t i m o n y d e p a r t s from Coleman's a t t h e p o i n t

t h a t t h e v i c t i m , Peggy H a r s t a d , s t o p p e d t o g i v e Nank a r i d e .

I n c o n t r a s t t o Coleman's t e s t i m o n y t h a t Nank l e f t a l o n e w i t h

t h e young woman, Nank t e s t i f i e d t h a t Coleman went w i t h him.'

He t e s t i f i e d t h a t Coleman was s e a t e d i n t h e r i g h t f r o n t s e a t

and h e , Nank, was i n t h e middle n e x t t o t h e d r i v e r . Nank

s t a t e d t h a t a s t h e y proceeded toward F o r s y t h he asked Peggy

H a r s t a d t o s t o p t h e v e h i c l e s o t h a t he c o u l d u r i n a t e . He

s t a t e d t h a t he and Coleman g o t o u t of t h e v e h i c l e and u r i n a t e d

b e s i d e i t . They t h e n r e t u r n e d t o t h e v e h i c l e and headed

towards F o r s y t h . A s t h e y approached F o r s y t h , Nank t e s t i f i e d

t h a t he t u r n e d t h e i g n i t i o n key o f f and maneuvered t h e

v e h i c l e t o t h e s i d e of t h e r o a d . Nank t i e d Peggy ~ a r s t a d ' s

hands t o g e t h e r w i t h a y e l l o w nylon r o p e . He removed h e r

c l o t h i n g e x c e p t f o r h e r b l o u s e . He a t t e m p t e d t o have s e x u a l

i n t e r c o u r s e with her b u t could n o t maintain an e r e c t i o n . He

t e s t i f i e d t h a t Coleman t h e n " g o t i n t h e b a c k s e a t " w i t h Peggy

H a r s t a d and had s e x u a l i n t e r c o u r s e w i t h h e r w h i l e Nank, now

s t a n d i n g on t h e o u t s i d e o f t h e c a r , h e l d o n t o h e r f o o t .

Nank t e s t i f i e d t h a t he t h e r e a f t e r d r e s s e d t h e v i c t i m

and t h e y d r o v e around d e c i d i n g what t o do. E v e n t u a l l y Nank

s t a t e d t h a t Coleman d e c i d e d t o k i l l Peggy H a r s t a d . Nank

t h e n claimed t h a t he threw t h e v i c t i m o v e r h i s s h o u l d e r ,

w i t h h e r hands s t i l l t i e d , and headed down toward t h e Yellowstone

River. He s t a t e d t h a t Dewey Coleman h i t h e r on t o p of t h e

head c o n t i n u o u s l y w i t h a m o t o r c y c l e h e l m e t and t h a t t h e n

Coleman a t t e m p t e d t o s t r a n g l e h e r w i t h t h e y e l l o w nylon

rope. H e s t a t e d t h a t when t h i s d i d n o t k i l l t h e v i c t i m t h a t

h e , Nank, h e l d h e r head under w a t e r i n t h e Yellowstone R i v e r

u n t i l s h e drowned.

Nank a l s o r e l a t e d how h e and Coleman went t o B o i s e ,

I d a h o , o b t a i n e d a n a p a r t m e n t and c o n t i n u e d t o l i v e u n t i l t h e

t i m e of t h e a r r e s t . Following t h e i r a r r e s t , Nank and t h e

d e f e n d a n t were i n t e r r o g a t e d by law e n f o r c e m e n t o f f i c i a l s i n

B o i s e , Idaho. Coleman m a i n t a i n e d h i s i n n o c e n c e , b u t Nank

c o n f e s s e d and a g r e e d t o t e s t i f y a g a i n s t Coleman.

The t e s t i m o n y of a n accomplice i s viewed w i t h s u s p i c i o n

b e c a u s e t h e r e i s a s t r o n g motive f o r l y i n g . In t h i s case a

number of law e n f o r c e m e n t t e c h n i q u e s were used t o o b t a i n a

c o n f e s s i o n from Nank. A p o l i c e o f f i c e r admitted t e l l i n g

Nank, though i t was n o t t r u e , t h a t he had w i t n e s s e d a hanging

and t h a t i t was gruesome. He f u r t h e r t o l d Nank, though i t

was n o t t r u e , t h a t Coleman had c o n f e s s e d and blamed ~ a n k o r

f

t h e murder. Nank t h e r e a f t e r e x h i b i t e d a w i l l i n g n e s s t o

c o n f e s s , b u t would o n l y do s o w i t h some a s s u r a n c e t h a t he

would n o t hang. He was a s s u r e d by law e n f o r c e m e n t o f f i c i a l s

t h a t t h e y would make e v e r y e f f o r t t o s e e t h a t he would n o t

hang and Nank t h e r e a f t e r gave a c o n f e s s i o n i m p l i c a t i n g

Coleman.

Nank was c h a r g e d w i t h d e l i b e r a t e homicide, s e x u a l

i n t e r c o u r s e w i t h o u t c o n s e n t , and a g g r a v a t e d k i d n a p p i n g .

Only t h e l a t t e r o f f e n s e c a r r i e d t h e d e a t h p e n a l t y . Nank was

p e r m i t t e d t o p l e a d g u i l t y and r e c e i v e n o n c a p i t a l s e n t e n c e s

f o r d e l i b e r a t e homicide and r a p e . The a g g r a v a t e d k i d n a p p i n g

c h a r g e , which c a r r i e d t h e d e a t h p e n a l t y , was h e l d i n abeyance

u n t i l Nank t e s t i f i e d a g a i n s t Coleman a t t h e t r i a l . After

Coleman's t r i a l t h e a g g r a v a t e d k i d n a p p i n g c h a r g e a g a i n s t

Nank was d i s m i s s e d .

I t i s o b v i o u s why a n a c c o m p l i c e ' s t e s t i m o n y must be

viewed w i t h d i s t r u s t . Before a c r i m i n a l charge a g a i n s t a

d e f e n d a n t c a n s u r v i v e a d i r e c t e d v e r d i c t and be s u b m i t t e d t o

a jury, t h e r e must be i n d e p e n d e n t c o r r o b o r a t i n g e v i d e n c e

i m p l i c a t i n g t h e d e f e n d a n t i n t h e crime. That corroborating

e v i d e n c e "must r a i s e more t h a n a s u s p i c i o n of t h e d e f e n d a n t ' s

involvement i n , o r o p p o r t u n i t y t o commit, t h e c r i m e c h a r g e d . "

S t a t e v. Warren ( 1 9 8 1 ) , -Mont. -, 628 P.2d 292, 295, 38

St.Rep. 773, 776 ( q u o t i n g from S t a t e v. Kemp ( 1 9 7 9 ) , -Mont. -I

The f o l l o w i n g e x c e r p t i s t a k e n from t h e f i r s t Coleman

c a s e , S t a t e v. Coleman (Decided A p r i l 26, 1 9 7 8 ) , 177 Mont.

" I n S t a t e v. Keckonen, ( 1 9 3 8 ) , 107 Mont. 2 5 3 , 84

P.2d 341, we h e l d t h a t w h e r e t h e a l l e g e d c o r r o b o r a -

t i v e evidence i s e q u a l l y consonant w i t h a reasonable

e x p l a n a t i o n p o i n t i n g toward i n n o c e n t c o n d u c t on .the p a r t

of t h e d e f e n d a n t , t h e n such e v i d e n c e d o e s n o t t e n d

t o c o n n e c t him w i t h t h e commission of t h e o f f e n s e

and i s i n t h e r e a l m of s p e c u l a t i o n , n o t c o r r o b o r a -

tion. Where t h e c l a i m e d c o r r o b o r a t i o n shows no more

t h a n an o p p o r t u n i t y t o commit a c r i m e and s i m p l y

proves suspicion, i t i s n o t s u f f i c i e n t corrobora-

t i o n t o j u s t i f y a c o n v i c t i o n upon t h e t e s t i m o n y of

a n accomplice. S t a t e v . J o n e s ( 1 9 3 3 ) , 9 5 Mont. 317,

26 P.2d 341."

I n a p p l y i n g t h e r u l e , t h e Supreme C o u r t h e l d , i n t h e

Coleman o p i n i o n c i t e d above, t h a t t h e r e was s u f f i c i e n t

c o r r o b o r a t i o n of Nank' s t e s t i m o n y t o s u s t a i n t h e d e f e n d a n t ' s

conviction. The c o u r t found t h e c o r r o b o r a t i n g e v i d e n c e t o

be: A c r a c k i n d e f e n d a n t ' s m o t o r c y c l e h e l m e t ; a h a i r of

Peggy H a r s t a d found on t h e r o p e b e l o n g i n g t o t h e two men;

t h e f i n g e r p r i n t s on Peggy H a r s t a d ' s c a r and i n h e r p u r s e ;

Negroid p u b i c h a i r s s i m i l a r t o d e f e n d a n t ' s and Negroid head

h a i r found i n t h e v i c t i m ' s v e h i c l e ; t h e e v i d e n c e t h a t t h e

d e f e n d a n t and Nank were s e e n t o g e t h e r on t h e same r o a d a t

a p p r o x i m a t e l y t h e same t i m e t h a t Peggy H a r s t a d d i s a p p e a r e d .

The C o u r t h e l d t h a t t h i s e v i d e n c e s u f f i c i e n t l y c o n n e c t e d t h e

d e f e n d a n t t o t h e commission of t h e o f f e n s e s c h a r g e d t o a l l o w

t h e conviction t o stand.

The e v i d e n c e t h a t d e f e n d a n t was on t h e r o a d w i t h Nank

i n t h e v i c i n i t y where Peggy H a r s t a d d i s a p p e a r e d d o e s n o t

c o r r o b o r a t e t h e t e s t i m o n y of Nank anymore t h a n i t c o r r o b o r a t e s

t h e t e s t i m o n y of Coleman. Coleman t e s t i f i e d t h a t he was

w i t h Nank on t h e e v e n i n g i n q u e s t i o n . The same i s t r u e of

Coleman's f i n g e r p r i n t s i n t h e p u r s e and i n t h e v e h i c l e .

Coleman t e s t i f i e d t h a t he was i n t h e H a r s t a d v e h i c l e a f t e r

Nank r e t u r n e d w i t h t h e v e h i c l e . H e t e s t i f i e d t h a t Nank t o l d

him t o d i s p o s e o f t h e p u r s e . H e t e s t i f i e d t h a t he f i r s t

went t h r o u g h t h e p u r s e and examined i t s c o n t e n t s . The

e x i s t e n c e of Coleman's f i n g e r p r i n t s on t h e p u r s e ' s c o n t e n t s

and i n t h e v e h i c l e c o r r o b o r a t e t h e t e s t i m o n y of t h e d e f e n d a n t

a s w e l l a s t h e t e s t i m o n y of Nank. Therefore, t h i s evidence

i s " e q u a l l y consonant with t h e reasonable explanation p o i n t i n g

toward i n n o c e n t c o n d u c t on t h e p a r t of t h e d e f e n d a n t " a s i t

i s p o i n t i n g toward g u i l t , and t h e r e f o r e , d o e s n o t q u a l i f y

a s corroborating evidence.

I f t h e r e i s any c o r r o b o r a t i n g e v i d e n c e s u f f i c i e n t t o

t a k e t h i s c a s e t o t h e j u r y i t must be found i n t h e c r a c k e d

m o t o r c y c l e helmet o r i n r e l i a b l e t e s t i m o n y t h a t Coleman's

p u b i c h a i r s were found i n t h e v i c t i m ' s v e h i c l e . A careful

r e a d i n g of t h e t r i a l t r a n s c r i p t shows t h a t s u f f i c i e n t c o r r o -

boration did not exist.

There w a s a c r a c k i n Dewey Coleman's s i l v e r c o l o r e d

m o t o r c y c l e helmet. The p r o s e c u t i o n contended t h a t t h i s

c o r r o b o r a t e d Nank' s t e s t i m o n y t h a t Coleman r e p e a t e d l y s t r u c k

Peggy H a r s t a d on t o p of t h e head w i t h h i s m o t o r c y c l e helmet.

There was no f o u n d a t i o n t o show t h a t such a s t r i k i n g c o u l d

o r would c r a c k a m o t o r c y c l e helmet. There was no t e s t i m o n y

t o show t h a t t h e helmet c o u l d be c r a c k e d i n such a f a s h i o n

w i t h o u t c r a c k i n g t h e s k u l l of t h e v i c t i m . T h i s v i c t i m had

no s k u l l f r a c t u r e a t a u t o p s y .

I f t h e c r a c k i n t h e helmet had any c o r r o b o r a t i v e s i g n i -

f i c a n c e , i t was d e s t r o y e d by t h e p a t h o l o g i s t ' s t e s t i m o n y .

Dr. John P f a f f , board c e r t i f i e d f o r e n s i c p a t h o l o g i s t , was

c a l l e d t o t e s t i f y by t h e S t a t e t o p r o v e t h a t t h e decomposed

remains which he examined a t a u t o p s y were t h o s e of Peggy

Harstad. H e did so. He was t h e n q u e s t i o n e d a b o u t h i s

f i n d i n g s i n c o n n e c t i o n w i t h t h e t i s s u e which covered t h e

skull. He t e s t i f i e d t h a t i f trauma o c c u r r e d t o t h e t o p of

t h e head, he would e x p e c t t o s e e b l e e d i n g i n t o t h e t i s s u e ,

b u t t h a t he saw none. The f o l l o w i n g e x c e r p t s a r e t a k e n from

his t e s t i m o n y :

". . . I c o u l d f i n d no e v i d e n c e of bony f r a c t u r e

i n any of t h e s k e l e t a l remains t h a t I examined.

I n t h e s k u l l t h e r e was no b r a i n t i s s u e remaining.

The f i b r u s l i n i n g membrane which c o v e r s t h e b r a i n

and s e p a r a t e from t h e s k u l l bones was s t i l l i n -

tact. T h i s i s s i g n i f i c a n t b e c a u s e i n c a s e s of

s k u l l f r a c t u r e o r serious i n j u r y t o the s k u l l , it

may become d e t a c h e d and c o n t a i n b l e e d i n g o r blood

extravasation. Such was n o t o b s e r v e d i n t h i s c a s e .

" Q u e s t i o n : And w i t h i n t h a t s c a l p t i s s u e , d i d you

f i n d any e v i d e n c e o f a n i n c i s e d wound, a l a c e r a -

t i o n o r a hemorrhage?

"Answer: I d i d n o t .

" Q u e s t i o n : Did you examine t h a t d u r a l l i n i n g t o

d e t e r m i n e and a s c e r t a i n w h e t h e r t h e r e was any wound,

l a c e r a t i o n o r hemorrhage?

"Answer: I d i d .

" Q u e s t i o n : And what d i d you f i n d ?

"Answer: I found none.

" Q u e s t i o n : D o c t o r , w i t h r e s p e c t t o a s u b d u r a l hema-

toma, i s i t y o u r t e s t i m o n y t h a t i t i s p o s s i b l e t o

have a s u b d u r a l hematoma w i t h o u t i n j u r y t o t h e s c a l p ,

w i t h o u t i n j u r y o r f r a c t u r i n g o f t h e s k u l l and w i t h o u t

i n j u r y o r hemorrhage t o t h e s u b d u r a l l i n i n g , i s t h a t

possible?

"Answer: I t ' s p o s s i b l e , b u t t h e r e i s u s u a l l y i n j u r y

t o the scalp. T h e r e may b e no i n j u r y t o t h e bone,

b u t i f t h e r e i s a blow s t r u c k t o t h e s c a l p t h e r e i s

u s u a l l y evidence of t h a t i f t h e p a t i e n t i s l i v i n g .

(Emphasis added. )

" Q u e s t i o n : A l l r i g h t . Now i n t h i s p a r t i c u l a r c a s e

d i d you f i n d a n y e v i d e n c e t o s u b s t a n t i a t e i n j u r y t o

t h e head o r t o t h e f a c e ?

"Answer: I n t h e t i s s u e I examined, I found none.

" Q u e s t i o n : W e l l , w h a t e v e r you d i d i n t h a t a u t o p s y

e x a m i n a t i o n , w h a t e v e r was a v a i l a b l e t o you, w h a t e v e r

p r o c e d u r e t h a t you u s e d , w h a t e v e r s c i e n t i f i c method

t h a t you employed, d i d you f i n d a n y i n j u r y t o t h e

head o r t o t h e f a c e ?

"Answer: I d i d n o t . " ( T r i a l T r a n s c r i p t Vol. 111,

pp. 572, 603, 605, 633.)

The o n l y r e m a i n i n g e v i d e n c e c l a i m e d f o r c o r r o b o r a t i o n

i s t h a t p u b i c h a i r s s i m i l a r t o Dewey Coleman's w e r e found i n

t h e Harstad vehicle.

The r e c o r d r e v e a l s t h a t h a i r s a m p l e s w e r e t a k e n from

t h e d e f e n d a n t and s u b j e c t e d t o m i c r o s c o p i c e x a m i n a t i o n .

Both head h a i r and p u b i c h a i r b e l o n g i n g t o d e f e n d a n t w e r e

a v a i l a b l e f o r t h a t examination. The v i c t i m ' s c a r was vacuumed

and numerous h a i r samples o b t a i n e d from t h a t vacuuming.

These samples were a l s o s c r u t i n i z e d m i c r o s c o p i c a l l y and

compared t o t h e h a i r samples of d e f e n d a n t .

I t s h o u l d be remembered t h a t d e f e n d a n t t e s t i f i e d he was

i n t h e v i c t i m ' s v e h i c l e a f t e r Nank r e t u r n e d d r i v i n g t h e

v e h i c l e . T h e r e f o r e , t h e e x i s t e n c e of d e f e n d a n t ' s h a i r i n t h e

c a r c o r r o b o r a t e s d e f e n d a n t a s w e l l a s Nank and d o e s n o t

provide independent corroborating evidence s u f f i c i e n t t o

s u s t a i n a c o n v i c t i o n . However, t h e S t a t e p l a c e s g r e a t r e l i a n c e

upon t h e f a c t t h a t d e f e n d a n t ' s p u b i c h a i r was a l l e g e d l y

found i n t h e v i c t i m ' s v e h i c l e . The r e c o r d does n o t s u p p o r t

the State ' s position.

I n an e f f o r t t o c o r r o b o r a t e t h e S t a t e ' s c a s e , t h e

prosecution c a l l e d an e x p e r t witness t o prove t h a t t h e h a i r

found i n t h e v i c t i m ' s v e h i c l e w a s c o n n e c t e d t o t h e d e f e n d a n t .

B e f o r e q u o t i n g e x c e r p t s from t h e e x p e r t ' s t e s t i m o n y , i t i s

i m p o r t a n t t o t a k e c o g n i z a n c e of t h e e v i d e n t i a r y r u l e h e r e

applicable. The o f f e r e d t e s t i m o n y must be based upon a

" r e a s o n a b l e d e g r e e of s c i e n t i f i c p r o b a b i l i t y " and i s i n a d -

m i s s i b l e i f t h e t e s t i m o n y i s based upon a mere " p o s s i b i l i t y " .

Moen v. Decker Coal Co. (1980), -Mont. -, 6 0 4 P.2d 765,

36 St.Rep. 2 2 2 0 ; Azure v . C i t y o f B i l l i n g s ( 1 9 7 9 ) , -Mont. - I

596 P.2d 460, 36 St.Rep. 968; F a r r i s v . C l a r k ( 1 9 7 1 ) , 158

Mont. 3 3 , 487 P.2d 1307; S t o r d a h l v . Rush Implement Company

( 1 9 6 6 ) , 148 Mont. 1 3 , 417 P . 2d 95.

The f o l l o w i n g e x c e r p t s a r e t a k e n from t h e S t a t e ' s

expert witness:

" Q u e s t i o n : Did you make a comparison of t h e Q-2

h a i r t h a t you have mentioned a s having come from

t h e a u t o m o b i l e , and t h e K - 2 a s you have mentioned

a s coming from t h e head of Dewey Coleman?

"Answer: Y e s , I did.

" Q u e s t i o n : And what w e r e your f i n d i n g s ?

"Answer: I found t h a t t h e r e were some s i m i l a r i t i e s

between t h e s e h a i r s , b u t a l s o t h e r e were some d i f -

f e r e n c e s between t h e s e h a i r s .

" Q u e s t i o n : A s a r e s u l t of t h a t , what was your f i n a l

conclusion?

"Answer: I r e a c h e d no c o n c l u s i o n a s t o whether o r

n o t t h e s e h a i r s c o u l d have come from t h e same s o u r c e .

"Question: . . . Did you compare t h e p u b i c h a i r s ,

t h e known p u b i c h a i r s from Dewey Coleman w i t h t h e

Q-29 h a i r s t h a t were removed from t h e d e b r i s from

Peggy H a r s t a d ' s v e h i c l e ?

"Answer: Y e s , I did.

" Q u e s t i o n : And what w e r e your f i n d i n g s ?

"Answer: I found t h a t t h e - - t h e two b l a c k Negroid

p u b i c h a i r s i n t h e vacuumings from t h e v e h i c l e ,

which m i c r o s c o p i c a l l y match t h e h a i r s which w e r e

s u b m i t t e d t o m e a s b e i n g from t h e p u b i c a r e a of

M r . Coleman.

" Q u e s t i o n : W i l l you e x p l a i n t h a t f u r t h e r p l e a s e ?

"Answer: W e l l , t h e f a c t t h a t t h e h a i r s w e r e micro-

s c o p i c a l l y a l i k e allowed m e t o conclude t h a t they

c o u l d -----same s o u r c e . The two p u b i c

have come from t h e

- - t h e two b l a c k Negroid p u b i c h a i r s from t h e va-

c u u m i n g ~o f t h e v i c t i m ' s v e h i c l e c o u l d --

have come

from t h e p u b i c - -of M r . Coleman.

-- area -

" Q u e s t i o n : You d o n ' t s a y i t d o e s come from t h e same

s o u r c e , --- p o s s i b l e -a t i t c o u l d have

you s a y i t ' s th -

--- s o u r c e , r i g h t ?

come from t h a t

"Answer: T h a t ' s c o r r e c t . " ( T r i a l T r a n s c r i p t Vol.

V I I I , pp.

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

added. )

Under w e l l e s t a b l i s h e d law i n Montana, t h i s t e s t i m o n y

was t o o s p e c u l a t i v e t o be r e c e i v e d i n e v i d e n c e , and once

r e c e i v e d , c o u l d n o t be r e l i e d upon a s s u f f i c i e n t l y c o r r o b o r -

a t i v e t o sustain a conviction.

T h i s C o u r t ' s d e c i s i o n i n S t a t e v . Coleman, s u p r a ,

wherein t h e C o u r t i d e n t i f i e d t h e c o r r o b o r a t i v e e v i d e n c e ,

a l s o r e l i e d upon t e s t i m o n y t h a t t h e v i c t i m ' s h a i r was found

embedded i n t h e y e l l o w nylon r o p e . Though t h e e x i s t e n c e of

s u c h h a i r would o n l y c o r r o b o r a t e t h a t t h e r o p e was used i n

k i l l i n g t h e v i c t i m , and would n o t c o r r o b o r a t e Nank's t e s t i m o n y

t h a t Coleman was p r e s e n t , t h e e v i d e n c e i t s e l f was i n s u f f i c i e n t .

The same e x p e r t w i t n e s s s o u g h t t o r e l a t e h a i r found on t h e

r o p e w i t h t h e h a i r of t h e v i c t i m . He t e s t i f i e d t h a t t h e r e

was brown Caucasian h a i r embedded i n t h e f r a y e d e n d s of t h e

rope. He a g a i n t e s t i f i e d t h a t t h e h a i r found i n t h e r o p e

c o u l d --

have been t h e h a i r of Peggy H a r s t a d .

- Under t h e r u l e

above e n u n c i a t e d such t e s t i m o n y c o u l d n o t be r e l i e d upon f o r

corroboration. Additionally, t h i s expert witness t e s t i f i e d

t h a t he c o u l d n o t d e t e r m i n e t h e s e x of t h e p e r s o n from whom

t h e h a i r came. Nank a l s o had brown C a u c a s i a n h a i r .

Interestingly, t h i s same h a i r e x p e r t , t e s t i f i e d t h a t he

had examined h a i r t a k e n from t h e b l a n k e t l a t e r d e t e r m i n e d t o

be a b l a n k e t which Peggy H a r s t a d had i n h e r c a r when s h e

l e f t home. Brown C a u c a s i a n h a i r was found on t h e b l a n k e t .

Nank had t e s t i f i e d t h a t he and Coleman were on t h e b l a n k e t

smoking c i g a r e t t e s a f t e r t h e y had k i l l e d Peggy H a r s t a d .

Coleman t e s t i f i e d t h a t he knew n o t h i n g a b o u t t h e b l a n k e t and

had had no p h y s i c a l c o n t a c t w i t h i t . The e x a m i n a t i o n r e v e a l e d

no Negroid h a i r upon t h e b l a n k e t .

There simply was no c o r r o b o r a t i o n s u f f i c i e n t t o l e n d

c r e d e n c e t o t h e t e s t i m o n y of Nank. The t r i a l c o u r t r e a l i z e d

this. A t t h e time t h e prosecution r e s t e d , and t h e d e f e n s e

moved f o r a d i r e c t e d v e r d i c t , t h e t r i a l c o u r t i n d i c a t e d t h a t

t h e r e w a s no c o r r o b o r a t i o n b u t s t a t e d he would a l l o w t h e

Supreme C o u r t t o r u l e on t h e q u e s t i o n .

A f t e r t h e d e f e n s e made a motion f o r d i r e c t e d v e r d i c t

because t h e r e w a s n o t s u f f i c i e n t corroboration f o r an accomplice's

t e s t i m o n y , t h e p r o s e c u t i o n r e s i s t e d and t h e f o l l o w i n g d i s c u s -

s i o n was had:

"THE COURT: Well, I t r e a t t h i s a s a r e a l s e r i o u s

motion.

"MR. OVERFELT: I n what r e g a r d ?

"THE COURT: Well, I am n o t going t o g r a n t t h e

motion, b u t I s a y i t h a s some m e r i t .

"MR. OVERFELT: I f r a n k l y d o n ' t t h i n k i t h a s any.

W c o u l d have g o t t e n t o t h e J u r y on c i r c u m s t a n t i a l

e

e v i d e n c e a l o n e , Your Honor, and I ' m c o n f i d e n t of

that.

"THE COURT: Well, a l l you have shown i s t h e oppor-

t u n i t y f o r t h i s b l a c k boy t o do i t . You have shown

p l e n t y of o p p o r t u n i t y . " ( T r i a l T r a n s c r i p t Vol.

I X , pp. 2106-2107.)

A s previously noted, c o r r o b o r a t i v e t e s t i m o n y showing

o n l y o p p o r t u n i t y i s i n s u f f i c i e n t t o a l l o w t h e c a s e t o go t o

t h e jury. Though t h e t r i a l c o u r t found, a s I have found,

t h a t t h e r e was no c o r r o b o r a t i o n , he n e v e r t h e l e s s a l l o w e d t h e

c a s e t o go t o t h e j u r y s o t h a t t h e Supreme C o u r t would have

a n o p p o r t u n i t y t o r e v i e w t h e complete r e c o r d and make a

determination.

I am g r e a t l y b o t h e r e d by t h i s c a s e . The o n l y e v i d e n c e

t h a t t h e d e f e n d a n t i s g u i l t y of t h e c r i m e s charged comes

from a n accomplice who was a s e l f - p r o c l a i m e d l i a r and who

had e v e r y r e a s o n t o p e r j u r e h i m s e l f . This accomplice,

though he had a h i s t o r y of v i o l e n c e and s e x u a l d e v i a t i o n ,

was g i v e n a n o n c a p i t a l s e n t e n c e . The d e f e n d a n t , whose g u i l t

was n o t proven by competent e v i d e n c e , had no p r e v i o u s f e l o n y

r e c o r d and y e t was s e n t e n c e d t o d e a t h .

The d e a t h s e n t e n c e i n Montana i s governed by t h r e e

s t a t u t e s which a r e h e r e i n a f t e r q u o t e d i n t h e i r e n t i r e t y :

" A g g r a v a t i n g c i r c u m s t a n c e s . Aggravating circum-

s t a n c e s a r e any of t h e f o l l o w i n g :

" ( 1 ) The o f f e n s e was d e l i b e r a t e homicide and was

committed by a p e r s o n s e r v i n g a s e n t e n c e of i m -

prisonment i n t h e s t a t e prison.

" ( 2 ) The o f f e n s e was d e l i b e r a t e homicide and was

committed by a d e f e n d a n t who had been p r e v i o u s l y

c o n v i c t e d of a n o t h e r d e l i b e r a t e homicide.

" ( 3 ) The o f f e n s e was d e l i b e r a t e homicide and was

committed by means of t o r t u r e .

" ( 4 ) The o f f e n s e was d e l i b e r a t e homicide and was

committed by a p e r s o n l y i n g i n w a i t o r ambush.

" ( 5 ) The o f f e n s e was d e l i b e r a t e homicide and was

committed as a p a r t of a scheme o r o p e r a t i o n which,

i f completed, would r e s u l t i n t h e d e a t h of more

t h a n one p e r s o n .

" ( 6 ) The o f f e n s e w a s d e l i b e r a t e homicide a s d e f i n e d

i n s u b s e c t i o n (1)( a ) of 45-5-102, and t h e v i c t i m

was a p e a c e o f f i c e r k i l l e d w h i l e p e r f o r m i n g h i s

duty.

" ( 7 ) The o f f e n s e was a g g r a v a t e d k i d n a p p i n g which

r e s u l t e d i n t h e d e a t h o f t h e v i c t i m . " ( S e c t i o n 46-18-

304, MCA.)

" ~ i t i g a t i n g ircumstances.

c Mitigating circumstances

a r e any of t h e f o l l o w i n g :

" ( 1 ) The d e f e n d a n t h a s no s i g n i f i c a n t h i s t o r y of p r i o r

criminal activity.

" ( 2 ) The o f f e n s e was comrnited w h i l e t h e d e f e n d a n t

was under t h e i n f l u e n c e of extreme m e n t a l o r emo-

t i o n a l disturbance.

I' ( 3 ) The d e f e n d a n t a c t e d under e x t r e m e d u r e s s o r

under t h e s u b s t a n t i a l domination of a n o t h e r p e r s o n .

" ( 4 ) The c a p a c i t y of t h e d e f e n d a n t t o a p p r e c i a t e

t h e c r i m i n a l i t y of h i s c o n d u c t o r t o conform h i s

c o n d u c t t o t h e r e q u i r e m e n t s of law was s u b s t a n t i a l l y

impaired.

" ( 5 ) The v i c t i m was a p a r t i c i p a n t i n t h e d e f e n d a n t ' s

conduct o r consented t o t h e a c t .

" ( 6 ) The d e f e n d a n t was an accomplice i n an o f f e n s e

committed by a n o t h e r p e r s o n , and h i s p a r t i c i p a t i o n

was r e l a t i v e l y minor.

" ( 7 ) The d e f e n d a n t , a t t h e t i m e of t h e commission

of t h e c r i m e , was less t h a n 18 y e a r s of a g e .

" ( 8 ) Any o t h e r f a c t e x i s t s i n m i t i g a t i o n of t h e

p e n a l t y . " ( S e c t i o n 46-18-304, MCA.)

" E f f e c t - a g g r a v a t i n g - m i t i g a t i n g circum-

of and

stances. I n d e t e r m i n i n g whether t o impose a sen-

t e n c e of d e a t h o r imprisonment, t h e c o u r t s h a l l

t a k e i n t o a c c o u n t t h e a g g r a v a t i n g and m i t i g a t i n g

c i r c u m s t a n c e s enumerated i n 46-18-303 and 46-18-

304 and s h a l l impose a s e n t e n c e of d e a t h i f i t

f i n d s one o r more of t h e a g g r a v a t i n g c i r c u m s t a n c e s

and f i n d s t h a t t h e r e a r e no m i t i g a t i n g circum-

stances sufficiently substantial t o c a l l for

leniency. I f t h e c o u r t d o e s n o t impose a s e n t e n c e

o f d e a t h and one of t h e a g g r a v a t i n g c i r c u m s t a n c e s

l i s t e d i n 46-18-303 e x i s t s , t h e c o u r t may impose

a s e n t e n c e o f imprisonment f o r l i f e o r f o r any

t e r m a u t h o r i z e d by t h e s t a t u t e d e f i n i n g t h e o f -

f e n s e . " ( S e c t i o n 46-18-305, MCA.)

Under t h e above q u o t e d s t a t u t e s t h e d e a t h p e n a l t y i s

imposed i f t h e r e i s a n a g g r a v a t i n g c i r c u m s t a n c e and m i t i g a t i n g

c i r c u m s t a n c e s do n o t c a l l f o r l e n i e n c y . The f i r s t s i x

s u b s e c t i o n s of s e c t i o n 46-18-303, MCA, are inapplicable t o

t h i s defendant. The o n l y a g g r a v a t i n g c i r c u m s t a n c e t o be

found under t h e s t a t u t e , i f i n d e e d one e x i s t e d , would be

rooted i n subsection ( 7 ) . There i s a b s o l u t e l y no c o r r o b o r a t i n g

e v i d e n c e t o show t h a t t h i s d e f e n d a n t was i n v o l v e d i n a g g r a v a t e d

kidnapping r e s u l t i n g i n t h e d e a t h of t h e v i c t i m . Even i f

one were t o a c c e p t t h e " h a i r t e s t i m o n y " o f f e r e d by t h e

e x p e r t , i t would o n l y c o r r o b o r a t e t h a t d e f e n d a n t committed

t h e a c t of s e x u a l i n t e r c o u r s e . T h i s a c t c o u l d n o t have

r e s u l t e d i n t h e d e a t h of t h e v i c t i m . There i s no t e s t i m o n y

c o r r o b o r a t i n g Nank ' s t e s t i m o n y t h a t t h e d e f e n d a n t p a r t i c i p a t e d

i n a n a c t which r e s u l t e d i n t h e d e a t h of t h e v i c t i m .

A v e r y s t r o n g m i t i g a t i n g c i r c u m s t a n c e e x i s t s under 46-

18-304, MCA. T h i s d e f e n d a n t h a s no f e l o n y r e c o r d . Furthermore,

under s u b s e c t i o n ( 8 ) of t h e s t a t u t e , any f a c t e x i s t i n g i n

m i t i g a t i o n , must be c o n s i d e r e d by t h e c o u r t . The q u e s t i o n a b l e

g u i l t o f t h e d e f e n d a n t i s c e r t a i n l y such a m i t i g a t i n g f a c t o r .

W e have s e e n t h a t t h e r e i s n o t c o r r o b o r a t i v e t e s t i m o n y

t o s u p p o r t Nank's v e r s i o n of t h i s m a t t e r . I would l i k e t o

examine Nankl s t e s t i m o n y i t s e l f t o show t h e t o t a l u n r e l i a b i l i t y

of t h a t t e s t i m o n y . The purpose of such e x a m i n a t i o n i s t o

show t h e weakness of t h e S t a t e 1s c a s e , t h e l i k e l i h o o d t h a t

t h e d e f e n d a n t i s i n n o c e n t , and t h e f a c t t h a t t h e d e a t h

p e n a l t y s h o u l d n e v e r be imposed i n such a c i r c u m s t a n c e .

Though t h e j u r y c o n v i c t e d Coleman, t h e t r i a l judge

s h o u l d c o n s i d e r t h e c e r t a i n t y of Coleman's g u i l t b e f o r e

imposing t h e d e a t h p e n a l t y . There was no c o n f e s s i o n from

t h e defendant. There w e r e no d i s i n t e r e s t e d w i t n e s s e s d i r e c t l y

c o n n e c t i n g Coleman t o t h e commission of t h e o f f e n s e s c h a r g e d .

A s previously discussed, t h e r e was no i n d e p e n d e n t c o r r o b o r a t i n g

e v i d e n c e o f any k i n d . I f Nank's t e s t i m o n y l a c k e d c r e d i b i l i t y ,

t h e e v i d e n c e of Coleman's i n v o l v e m e n t becomes e v e n more

speculative. The f o l l o w i n g e x c e r p t s from t h e r e c o r d b e a r

upon Nank' s v e r a c i t y :

"Answer: She d r o v e t h e p i c k u p t h r o u g h t h e d r i v e -

way and o v e r down w i t h i n maybe f i v e f e e t of t h e

bike. I then tipped t h e motorcycle r i g h t s i d e

up and I p r o c e e d e d t o f i l l t h e g a s t a n k up. I

l i e d t o her. T h i s i s g o i n g back t o t h e c r i m e and

I was a l w a y s t r y i n g t o make up s t o r i e s . You know.

" Q u e s t i o n : Did you t e l l them t h e same t h i n g t h a t

you have t o l d t h e j u r y h e r e i n t h e l a s t two d a y s ?

"Answer: No, I l i e d t o M r . Brake.

" Q u e s t i o n : I n what r e s p e c t d i d you l i e t o M r .

Brake?

"Answer: I l i e d . I t o l d M r . Brake t h a t Dewey t i e d

Peggy Hars t a d up and I t o l d him t h a t Dewey un-

d r e s s e d her i n s t e a d of m e .

" Q u e s t i o n : So t h a t any s t a t e m e n t i n a n y r e c o r d t h a t

you t o o k LSD 25 o r 30 t i m e s would b e a l i e ?

"Answer: I t was i n a l i e i n s o much t h a t maybe a t

t h a t t i m e I was g o i n g t o t r y t o u s e t h a t a s a n

e x c u s e t o b e a d m i t t e d f o r my c r i m e i n t o a s t a t e

h o s p i t a l i n s t e a d o f g o i n g t o p r i s o n , and s o t h a t

i s maybe t h e r e a s o n t h a t I made t h a t s t a t e m e n t , and

I d i d l i e because I heard of c a s e s l i k e t h i s b e f o r e ,

s o I may have l i e d , y e s .

" Q u e s t i o n : So now you d i d t e l l somebody t h a t you

had u s e d LSD 25 o r 30 t i m e s , b u t e v e n though you

l i e d a b o u t i t , you t h o u g h t you m i g h t b e a b l e t o

g e t o f f o r g e t i n t o a s t a t e h o s p i t a l o r something,

is that right?

" T h a t would b e t h e p u r p o s e o f i t , y e s .

" Q u e s t i o n : W e l l , d i d you g i v e them a n y examples

o f a n y a g g r e s s i v e b e h a v i o r on your p a r t ?

"Answer: I d o n ' t know, I d i d a l o t of l y i n g s o

I c a n n o t s t a t e n o t h i n g t r u t h f u l l y a b o u t what I

s a i d t h e r e and g e t a c o r r e c t a n s w e r . . . ."

( T r i a l T r a n s c r i p t Vol. V , pp. 1056, 1057, 1102,

1103, 1 1 3 0 . )

Nank's t e s t i m o n y on t h e s t a n d was a l s o c o n t r a r y t o t h e

t e s t i m o n y of Law enforcement o f f i c e r s . Nank t e s t i f i e d t h a t he

was t e l l i n g t h e t r u t h and t h e law e n f o r c e m e n t o f f i c e r s were

lying. One of t h e law e n f o r c e m e n t o f f i c e r s who o r i g i n a l l y

i n t e r r o g a t e d Nank f o l l o w i n g h i s a r r e s t i n B o i s e , I d a h o ,

s t a t e d t h a t Nank t o l d him he became u p s e t w i t h Peggy H a r s t a d

b e c a u s e s h e s a i d something t o h u r t h i s ego. Nank, d u r i n g

t h e Coleman t r i a l , a c c u s e d t h e law e n f o r c e m e n t o f f i c e r of

lying about t h i s matter. The f o l l o w i n g e x c e r p t i s t a k e n

from t h e t r a n s c r i p t :

" Q u e s t i o n : And do you r e c a l l t h a t he s a i d , ' I b e t

you t h a t s h e p r o b a b l y s a i d something t o you t h a t

e i t h e r h u r t your ego, made you v e r y mad, ex-

t r e m e l y u p s e t ' , o r something l i k e t h a t , and d i d

you d r o p your head and n o t make any comment t o

t h a t question?

"Answer: I d i d n o t make any comment b e c a u s e I

knew t h a t h e was t r y i n g t o make m e make some k i n d

of a statement.

" Q u e s t i o n : And t h e n he s a i d , 'Did s h e s a y some-

t h i n g t o i n f u r i a t e you o r h u r t your e g o ' , o r t h i s

t y p e of t h i n g , and you s a i d , 'Yes, Y e s , s h e d i d . '

"Answer: No, I n e v e r d i d s a y t h a t . M r . Brake l i e d

and I a l s o t o l d Judge M a r t i n when I w a s i n a n e a r -

I.ier c o u r t hearing before about t h a t .

"Question: M r . Brake l i e d ?

"Answer: M r . Brake d i d l i e . " ( T r i a l T r a n s c r i p t Vol.

V, p. 1 0 9 1 , 1092.)

Law e n f o r c e m e n t o f f i c e r Brake had a l s o t e s t i f i e d t h a t a t

t h e t i m e Nank and Coleman w e r e a r r e s t e d i n t h e i r a p a r t m e n t

i n B o i s e , t h a t Nank t o l d t h e p o l i c e t o " ~ e your a s s o u t of

t

here". Nank, d u r i n g t h e Coleman t r i a l , a g a i n a c c u s e d t h e

law e n f o r c e m e n t o f f i c e r s of l y i n g . The f o l l o w i n g e x c e r p t i s

t a k e n from t h e r e c o r d .

" Q u e s t i o n : And d i d you when you were a r r e s t e d t e l l

t h e B o i s e p o l i c e , t o ' G e t your a s s o u t of h e r e ' ?

"Answer: No. M r . Brake l i e d a b o u t t h a t , and I a l s o

t r i e d t o e x p l a i n t h a t t o Judge M a r t i n i n an e a r l i e r

c o u r t h e a r i n g t h a t I s a i d t h a t M r . Brake l i e d .

T h a t ' s one t h i n g , I have never--I have n e v e r

I I

a ' , '

..

c a l l e d a policeman a name. He l i e d a b o u t t h a t

t o o . " ( T r i a l T r a n s c r i p t Vol. V , p. 1227.)

Again, o f f i c e r Brake t e s t i f i e d t h a t h e r e a d t h e c o n s t i -

t u t i o n a l r i g h t s t o Nank a t t h e t i m e of h i s a r r e s t . Nank,

w h i l e t e s t i f y i n g d u r i n g t h e Coleman c a s e , d i s p u t e d t h i s .

Nank t e s t i f i e d :

" Q u e s t i o n : Did he v e r b a l l y - - d i d M r . Brake v e r b a l l y

a d v i s e you o f your r i g h t s a s soon a s you were

p l a c e d under a r r e s t ?

"Answer: Not a t t h a t time. Not a t t h a t p a r t i c u l a r

t i m e , no.

" Q u e s t i o n : You h e a r d M r . Brake s a y t h a t he d i d ad-

v i s e you of your r i g h t s , and t h a t ' s a l i e a c c o r d i n g

t o you?

"Answer: H e d i d n o t a t t h a t t i m e when w e were a r -

r e s t e d v e r b a l l y a d v i s e u s of o u r r i g h t s a t t h a t

t i m e , no, h e d i d n o t .

" Q u e s t i o n : You h e a r d him t e s t i f y t h a t h e d i d ?

"Answer: He d i d n o t do i t .

" Q u e s t i o n : Well t h e n , he l i e d ?

"Answer: H e l i e d . " ( T r i a l T r a n s c r i p t Vol. V ,

p. 1227.)

Nank's t e s t i m o n y i t s e l f was r i d d l e d w i t h i n c o n s i s t e n c y .

Though t h e r e c o r d i s r e p l e t e w i t h examples, t h e f o l l o w i n g i s

illustrative. When t e s t i f y i n g a b o u t who u n d r e s s e d t h e

v i c t i m , Nank gave t h e f o l l o w i n g t e s t i m o n y :

" Q u e s t i o n : You took h e r s h o e s o f f d i d n ' t you?

"Answer: Y e s , I did.

" Q u e s t i o n : You u n d r e s s e d h e r ?

"Answer: Dewey d i d . " ( T r i a l T r a n s c r i p t Vol. V ,

p. 1189.)

The f o l l o w i n g t e s t i m o n y i s t a k e n from page 1210, Vol.

V, of t h e t r i a l t r a n s c r i p t .

" Q u e s t i o n : And d i d you u n d r e s s h e r ?

"Answer: Yes I d i d .

" Q u e s t i o n : And d i d you d r e s s h e r up a g a i n ?

"Answer: Y e s I d i d . "

And from p a g e 1223 and 1224, Vol. V , of t h e t r i a l

t r a n s c r i p t s , t h e following testimony i s taken:

" Q u e s t i o n : Do I u n d e r s t a n d t h a t Dewey n e v e r t o o k

her clothes o f f ?

"Answer: Dewey d i d n o t t a k e h e r c l o t h e s o f f .

" Q u e s t i o n : Do I u n d e r s t a n d t h a t you t o o k h e r c l o t h e s

off?

"Answer: I d i d t a k e h e r c l o t h e s o f f .

" Q u e s t i o n : And t h a t i n c l u d e d h e r p a n t s ?

"Answer: She had o n - - w e l l , some k i n d o f m o r e l e s s

t r o u s e r s o r whatever.

" Q u e s t i o n : Did t h a t i n c l u d e u n d e r p a n t s ?

"Answer: I d o n o t remember i f s h e was w e a r i n g underwear a t

t h a t t i m e o r not.

" Q u e s t i o n : Did you p u t h e r c l o t h e s back on?

"Answer: I p u t h e r b l u e j e a n s back on. I think

w i t h what s h e was w e a r i n g , I p u t them back o n ,

yes.

" Q u e s t i o n : So t h a t you w e r e t h e o n l y o n e t h a t

dressed o r undressed h e r , i s t h a t c o r r e c t ?

"Answer: Y e s , that's correct."

I n t h e f i r s t s t a t e m e n t Nank g a v e t o l a w e n f o r c e m e n t

o f f i c i a l s h e s a i d Coleman u n d r e s s e d t h e v i c t i m . On t h e

s t a n d Nank t e s t i f i e d t h a t Coleman u n d r e s s e d t h e v i c t i m and

t h e n changed t h e t e s t i m o n y and t e s t i f i e d t h a t he was t h e

o n l y o n e who had u n d r e s s e d t h e v i c t i m . H i s testimony, to

s a y t h e l e a s t , was i n c r e d i b l e .

Nank had a h i s t o r y o f v i o l e n c e b e g i n n i n g w i t h h i s

childhood. Though t h e r e c o r d s show t h a t h e a t t a c k e d h i s

mother w i t h a b u t c h e r k n i f e , h e t e s t i f i e d t h a t i t was h i s

m o t h e r who a t t a c k e d him w i t h t h e k n i f e . Nank r e l a t e d t h e

f o l l o w i n g t e s t i m o n y d u r i n g t h e c o u r s e o f Coleman's t r i a l :

" Q u e s t i o n : Now you s t a t e d t h a t y o u r m o t h e r , M r s .

Nank--Mary, was t h a t h e r f i r s t name?

"Answer: Margaret.

" Q u e s t i o n : M a r g a r e t . A t one t i m e when you were 18

y e a r s of a g e , h e l d a b u t c h e r k n i f e a t your t h r o a t

and chased you around t h e house w i t h a poker b e a t i n g

you upon t h e head and s h o u l d e r s and t h e n t e a r i n g t h e

f r o n t of h e r d r e s s and going o u t i n t h e s t r e e t and

t e l l i n g o t h e r p e o p l e t h a t you had a t t a c k e d h e r sex-

u a l l y ; d i d s h e do t h a t ?

"Answer: NO, you s t a t e d t h a t wrong, s i r .

"Question: W e l l , d i d she hold a butcher k n i f e a t

your t h r o a t ?

"Answer: Y e s , she did.

" Q u e s t i o n : And d i d s h e c h a s e you around t h e house

w i t h a poker?

"Answer: Y e s , she did.

" Q u e s t i o n : Did s h e h i t you a b o u t t h e head and

s h o u l d e r s w i t h a poker?

"Answer: Yes, s h e d i d .

" Q u e s t i o n : Did s h e t e a r t h e f r o n t of h e r d r e s s ?

"Answer: The f r o n t of h e r b l o u s e .

" Q u e s t i o n : And d i d s h e t e l l o t h e r p e o p l e t h a t you

had a t t a c k e d h e r s e x u a l l y ?

"Answer: No, s h e d i d n o t .

" Q u e s t i o n : She d i d n o t ?

"Answer: She d i d n o t r u n o u t i n t h e s t r e e t and

h o l l e r a t p e o p l e , no, s h e d i d n o t .

" Q u e s t i o n : Did s h e t e l l o t h e r p e o p l e t h a t you

had a t t a c k e d h e r s e x u a l l y ?

"Answer: I t h i n k s h e m i g h t have t o l d a d o c t o r .

I do n o t know." ( T r i a l T r a n s c r i p t Vol. V , pp.

1074, 1075.)

Though t h e r e c o r d s show t h a t Nank had a t t a c k e d h i s

mother w i t h a b u t c h e r k n i f e and i n d i c a t e t h a t he may have

a t t a c k e d h e r s e x u a l l y , he took t h e w i t n e s s s t a n d i n t h e

Coleman c a s e and s a i d t h a t h i s mother i n f a c t had been t h e

a g g r e s s o r and h e t h e v i c t i m .

Nank had been i n s t i t u t i o n a l i z e d i n m e n t a l h o s p i t a l s on

four previous occasions. H e had a h i s t o r y of v i o l e n c e

i n c l u d i n g v i o l e n c e a g a i n s t b o t h h i s mother and h i s s i s t e r .

H e had a f e l o n y r e c o r d .

On t h e o t h e r hand, Coleman had no h i s t o r y of v i o l e n c e

and no f e l o n y r e c o r d . Coleman was a homosexual.

A psychologist t e s t i f i e d with r e s p e c t t o a r a p i s t ' s

typical characteristics. T h i s t e s t i m o n y showed t h a t Nank

f i t t h e p a t t e r n b u t Coleman d i d n o t . In f a c t , t h i s witness

t e s t i f i e d t h a t t h e i n c i d e n t s of homosexuals b e i n g i n v o l v e d

i n r a p e was " p r a c t i c a l l y z e r o " .

I n m n i n e t e e n y e a r s a t t h e bench and b a r I have seldom

y

been s o d e e p l y d i s t u r b e d by t h e i n j u s t i c e of a r e s u l t . A

d e f e n d a n t i s h e r e s e n t e n c e d t o d i e where t h e r e i s p r a c t i c a l l y

no c r e d i b l e e v i d e n c e c o n n e c t i n g t h e d e f e n d a n t t o t h e commission

of t h e c r i m e . There a r e s t r o n g r e a s o n s t o b e l i e v e t h a t t h e

d e f e n d a n t d i d n o t commit t h e c r i m e f o r which t h e d e a t h

p e n a l t y was imposed. And y e t t h i s C o u r t i s a u t h o r i z i n g t h e

i m p o s i t i o n of t h a t i r r e v o c a b l e s a n c t i o n . I implore t h e

f e d e r a l c o u r t s t o examine t h i s r e c o r d , and upon f i n d i n g i t

t o be a s wanting as I do, t o i n t e r v e n e and p r e v e n t t h i s

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 post-

conviction 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 considera-

tion 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 Z Z - - 5 2 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. - further emphasize

I

--order

that this - - word-for-word adoption - - the proposed

is a of -

findings and conclusions - - presented - - State.

of law by the 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 - (1978), 177 Mont. 1, 39 to 43,

I

579 P.2d 732, 754 to 756, and Coleman - (1979), - Mont

I1 . 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 - 579 P.2d 732, the

I,

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 - and

I,

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

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

at

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. - - reasoning

The same

must apply to rules that diminish the reliability

of the guiltdetermination." (Emphasis added.)

7-

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), 3 3 3 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 felony-

murder 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 - these choices

of

are unsupported - substantial evidence.

by Under count 111,

sexual intercourse without consent, the jury was given two

choices as to proof of the issue of "without consent." One

- those choices - unsupported by substantial evidence.

of is -

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 charae - or more different offenses

- .-

. .

J.

two - -

-

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 -

-- - ~ - - court."

of the

(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 - - verdict

in the . . ."

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 state-

ment 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 agree-

ment, 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 felony-

murder, 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 affirmed; 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 respon-

sibility 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

- - - - - - - of

that all - - you must agree on the verdicts.

Verdict forms will be provided for your con-

venience.

"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 - - other felony which involves

or any

t h e- r e a t of physical force - violence

-- m or

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 - - threat - physical

use or of

-

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 felony-

murder 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, -- important, was

and most

-- unanimous - - - - - of these statutory theories

the jury on at least one

- criminal responsibility when it returned its guilty verdict?

of --

.. 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, - for the

and

purpose of inflicting bodily injury on -

and

terrorizing the said victim, Peggy Lee Harstad,

resulting - - death - Peggy Lee Harstad."

in the of

(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- - - following purposes:

- any of the

"(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 con-

vict if Coleman, in restraining the woman, had the purpose

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

or

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

or to

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

- - victim without --

of the 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, - an aggravated assault upon the

or

-

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

or -

authority - 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 - felony

any

(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 con-

sideration 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 - terrorize her.

to 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 incon-

sistent 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, o

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