Appendix — Coleman v. Montana

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INDEX TO APPENDIX

Page

First Coleman decision on appeal,

M. ,5979 P.2d732(July 10,1978)............. 1

Second Coleman decision on appeal,

M. ,605 P. 2d 1000(June20,1979).......... 36

Decision on Rehearing,

M. ,605 P. 2d 1051 (December 19,1979)... .. 123

March 21, 1980 Order Denying Sentence Review

I IS 2 ee 140

Information, Statev.Coleman...................... 143

Montana’s New Death Laws....................... 144

List of Prisoners Where Victim Killed................ 147

ee er yt es oc Fave sas oe a a 154

1. STATE V. COLEMAN, FIRST APPEAL

M » 579 P2d 732

No. 13296

The STATE of Montana, Plaintiff and Respondent,

v.

Dewey Eugene COLEMAN, Defendant and Appellant.

SUPREME COURT OF MONTANA

Decided April 26, 1978.

Filed April 26, 1978.

Rehearing Denied May 30, 1978.

HASWELL, Chief Justice. :

Defendant appeals from the final judgement of the District

Court, Rosebud County, following a jury trial. Defendant was

convicted of deliberate homicide, aggravated kidnapping, and

sexual intercourse without consent, inflicting bodily injury.

On July 4, 1974, Peggy Lee Harstad, 21 years of age, disap-

peared while driving alone from Harlowton to Rosebud, Mon-

tana. She was last seen alive around 9:00 p. m. that night at

Melstone, Montana. On July 5, 1974, her car was found within a

few miles of her home, near Rosebud. On July 7, 1974, a ranch

hand discovered a purse and other articles belonging to Peggy

Lee Harstad inside a culvert approximately ten miles west of her

abandoned car.

In the developing investigation, an elderly couple informed the

sheriff of Rosebud County that they had seen a black man and a

white man hitchhiking on July 4 between Roundup and Forsyth,

Montana at about the time of day Peggy Lee Harstad was driv-

ing between those towns. Subsequently, these two men were iden-

tified as the defendant, Dewey Eugene Coleman, a black man,

and Robert Dennis Nank, a white man.

On July 9, 1974, representatives of the Rosebud County

sheriff s office went to the Veteran's Administration Hospital in

Sheridan, Wyoming, where these men were, to question them

aD Nank admitted being in the area of Peggy Lee

s disappearan i iki

ate pe ce and hitchhiking through Forsyth on the

On August 6, 1974, the F.B.I. laboratory provided iti

comparison between a fingerprint lift silien ies the are ot

the Harstad vehicle and a sample fingerprint of Nank. The F.B.I

also reported a positive comparison between a fingerprint of

defendant and a lift taken from a paper found in Harstad’s purse

In an interview with F.B.I. agents on August 1, 1974, defendant

and Nank admitted seeing the Harstad vehicle abandoned on the

pre Poare: he was asked about his fingerprint in the purse,

= eae re that he found a purse along the road they were

Vacuumings were taken in the Harstad vehicl

sent to the F.B.I. laboratory for analysis. They Piast

September 13, 1974, that Negroid head hairs were found in the

loose hairs taken from the front seat. In addition, two Negroid

“e 2 were found in the vacuumings. “i

n August 29, 1974, the decomposed bod

Harstad was found on the north sank of the <a dhnng Manag

just west of Forsyth, Montana. A forensic pathologist, Dr John

Pfaff, identified the remains as Peggy Lee Harstad by ‘the use of

dental charts. Because of the state of decomposition of her re-

= _ Pfaff could not determine a cause of death.

ince their original questioning in Sheridan, i

defendant and Nank had moved yn Boise, co.

August. At the request of Rosebud County authorities, the Boise

aon a — these men under surveillance.

On October 16, 1974, the then Rosebud C

William Meisburger, and Undersheriff Giniar Wale Game

Boise, Idaho to further interrogate defendant and Nank. The.

next day, October 17, 1974, Meisburger and Makin went to see

the Boise police. They talked to Detective Brake of the Boise

police about bringing the defendant and Nank to the police sta-

tion for questioning. They informed him of all the evidence they

-3-

had connecting the defendant and Nank with the death of Peggy

Lee Harstad. Detective Brake, since he had been doing some of

the surveillance of the two men, knew about most of the evidence

except about her body being found. After discussing the case

with Meisburger and Makin, Detective Brake and a Detective

Crowell went to the apartment where these two men were living.

There the defendant and Nank were placed under arrest without a

warrant for deliberate homicide in the death of Peggy Lee

Harstad.

After their arrest and being placed in custody, arrest warrants

and complaints were issued by a justice of the peace for Rosebud ,

County. The warrants and complaint charged defendant and

Nank with deliberate homicide.

Upon their arrest, defendant and Nank were advised of their

rights. The defendant refused to waive his rights. Nank did waive

his rights and, after being in custody for a few hours, gave a full

confession. In his confession, he implicated himself and the defen-

dant. He confessed that they kidnapped, raped, and murdered

Peggy Lee Harstad. Nank consented to a search of their apart-

ment and car for the murder weapons he said were used in the

crime—namely, their motorcycle helmets and a rope. A search

warrant was obtained and the helmets and rope recovered.

On October 24, 1974, a motion for leave to file an Information

in the District Court, Rosebud County, was requested and

granted. The Information charged the defendant with three

counts: Count I, deliberate homicide; Count Il, aggravated kid-

napping; and Count III, sexual intercourse without consent, in-

flicting bodily injury. Defendant plead not guilty to all counts.

On January 30, 1975, defendant moved to suppress all confes-

sions, statements and evidence, illegally seized. A suppression

hearing was held. Following the disqualification of the trial judge

by the State and the assignment of the case to another judge, a

second suppression hearing was held and defendant’s motion

denied.

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

ing agreement with Robert Nank. Under the terms of the agree-

ment, Nank agreed to plead guilty to-deliberate homicide and

solicitation to commit s

mmit sexual i :

further agreed _Sexual intercourse without

dienalieal or to testify at defendant's trial in consent, and

© aggravated kidnapping charge return for the

defendant’ ;

made an nt’s then court :

oral offer of a conditional plea of ie pag a

eturn for

At trial Colem

a» an and Nank relat :

as to their involvement with Miss — Statements of fact

p g1 ’

v ’ ’ an h

the river and du

her te mped her into it. As

ead under water while Cilesias helttos eek ee

, s.

.

ed that they drove her car back toward For-

Nank then testifi

emoved some things from the

syth until it ran out of gas. They r

car and walked into Forsyth. Nank left Coleman in Forsyth,

hitchhiked with gas to the motorcycle, and returned to pick up

Coleman. They then went to the V. A. Hospital in Sheridan where

they stayed until going to Boise.

Defendant Coleman, on the other hand, testified that after the

motorcycle ran out of gas and they were refused a ride, Nank sug-

gested that because Coleman was black and there were few blacks

in that area, he should go get the gas alone. Coleman testified

that while he was sitting off the highway smoking, Nank got a

ride.

After several hours, Nank returned in a car and, according to

Coleman, Nank was wet, upset and acting strange. Coleman said

he was told to get their things off the motorcycle and get in the

car. When they both were in the car, Nank advised Coleman that

he had killed a girl. The car ran out of gas, and they started to

walk. Nank gave Coleman a purse to carry and later told him to

get rid of it. Coleman threw the purse into a culvert. They then

had breakfast in Forsyth, and Nank left Coleman while he went

to get the motorcycle. Coleman also testified that Nank threaten-

ed him if he ever disclosed any of these facts.

The trial ended on November 14, 1975. The jury returned guilty

verdicts on all three counts. On November 21, 1975, the court

sentenced defendant Coleman to 100 years on Count I (deliberate

homicide); to death by hanging on Count II (aggravated kidnapp-

ing); and to 40 years on Count III (sexual intercourse without

consent inflicting bodily injury). Defendant's motion for a new

trial was denied. A stay of execution has been granted pending

this appeal.

Defendant raises 41 specifications of error on appeal. We will

discuss these alleged errors within the broader context of the

issue to which they relate.

We will restate the issues in this m

1. Whether the death penalty, impo

tence for conviction on Count II is constitutional?

29. Whether defendant should have been sentenced for 40

years on his conviction under Count III?

anner:

sed as defendant’s sen-

3. Whether defendant’s motion

. " to suppress th : ,

tained after his arrest should have been ashen sale onal

4. Whether defendant's conditi

should have been accepted? itional offer to plead guilty

5. Whether defendant’s motion ismi

to dismiss the three count

RP have been granted and whether the -ated

on sho

wr uld have been amended after defendant's entry of a

6. Whether def ae :

been sustained? efendant’s second Jury challenge should have

7. Whether the sco

Pikes apy pe of the defendant's cross-examinati

the State’s witnesses was improperly limited? ination of

8. Whether Nank’s com

: ; petency as a witness sh

determined prior to his testimony? ould have been

Be Whether defendant’s motion to dismiss, at the close of the

tate s case, for lack of corroboration of Nank’s testimony shoul

have been granted? heaton

10. Whether some of the State’s w;

). ate’s witnesses were all

testify improperly to the prejudice of defendant? pairs

11. Whether the District Court properly instructed the jury?

12. Whether certain State’s ibi :

exhibits were admissi

whether defendant's exhibits were properly refused? issible and

13. Whether def , ;

bistsdiennade efendant’s motion for a new trial should-have

that Montana’s death

penalty statute, unde i

ae 18 unconstitutional on its face. ren

i: Pcs Rap riers rule is that a sentence of death cannot be

out if the jury that imposed or recommended it was

chosen by excluding prospective jurors for cause simply because

they voiced general objections to the death penalty. There is an

exception to the rule. It provides that if a prospective juror is ir-

revocably committed to voting against conviction because of the

possibility of a death penalty, he may be properly excluded for

cause and a sentence of death carried out. In this case, defendant

argues that Witherspoon makes his death sentence invalid as two

jurors were improperly excluded. We disagree.

[2] We hold that the two prospective jurors in this case were

properly excluded under the exception to the general rule of

Witherspoon. One juror stated that no matter how strong the

evidence of guilt was, he could not vote to convict if a death

penalty could be imposed. The other juror stated that she felt she

could not live with herself if she was on a jury that convicted a

person and that person received a death sentence as a result.

Thus, both of these jurors were irrevocably committed to voting

against a conviction because defendant could receive the death

penalty. Their being excused for cause because of their ir-

revocable commitment against the death penalty does not in-

validate defendant’s death sentence.

At the time of defendant’s trial, the death penalty statute in

Montana for aggravated kidnapping was section 94-5-304,

R.C.M. 1947. It read:

‘‘A court shall impose the sentence of death follow-

ing conviction of aggravated kidnapping if it finds

that the victim is dead as the result of the criminal

conduct.”’

Defendant was sentenced to death under this statute.

This statute was repealed by the 1977 session of the state

legislature. Section 16, Chapter 338, Laws of Montana 1977. The

new death penalty statutes are codified as sections 95-2206.6 to

95-2206.15, R.C.M. 1947. The constitutionality of Montana’s pre-

sent death penalty statutes is not involved in this case.

Section 94-5-304, R.C.M.1947, as it existed in 1975, is a man-

datory death penalty statute. In the light of recent U. S. Supreme

Court decisions, this statute is unconstitutional on its face, and

defendant’s death sentence thereunder cannot stand.

-8-

In 1976, the United States §

: d St upreme Court, for the fi i

= on the constitutionality of mandatory Bsesthagiy ne

statutes. Woodson v. North Carolina, (1976), 428 U.S. 280 96

ah Cy aa

sentence for all persons prea ater of fir e "eentvctongem

ee ~ statute unconstitutional, the “anos aati

* N orth Carolina’s mandatory death penal- .

hd statute for first-degree murder departs markedly

rom contemporary standards respecting the im-

position of the punishment of death and thus cannot

be applied consistently with the Eighth and Four-

teenth Amendments’ requirement that the State’s

power to punish ‘be exercised within the limits of

civilized standards.’ "’ Woodson v. North Carolina,

428 U.S. at 301, 96 S.Ct. at 2990, quoting from Trop

v. Dulles, (1958), 356 U.S

Pome gi ‘S. 86, 78 S.Ct. 590, 2

ec aE omayhceng the hhege States Supreme Court also held

eath penalty statutes unconstituti

Gere Sige ee Stitutional. Coker v.

, S. 584, 97 S.Ct. 2861, 53 L

peg ar toe 4 tyres (1977), 431 U.S. 633, 97S Pageeny

Ed. . In Coker the Court held unconstitutional ¢

Cc stitutional

ee —— requiring the imposition of the death iaihaee

pie a sist oe — aggravated circumstances

) 0 | sent. in /toberts the Court held unc itu-

promi A poecapeovn Statute requiring the imposition of iy 9

rege : Map

tates Ore AA cas officer. Concerning the Louisiana

ae 3 * s . .

* it is essential that the capital sentencing

decision allow for consideration of whatev

mitigating circumstances may be relevant to either

the particular offender or the particular offens :

Because the Louisiana statute does not allow co ‘

sideration of particularized mitigating factors, it is

unconstituti 4 Si

— ional. Roberts v. Louisiana, 97 U.S. at

CU i 18 20 LIRR RR AEWA. oe re tome nner, eee

Sei Etat tg Hie WW ELE i

[3] The same problems that existed in the statutes declared

unconstitutional in Woodson, Coker, and Roberts are present in

the statute under which defendant was sentenced in 1975. It isa

mandatory death penalty statute. Under this statute, if the court

finds, as it did in this case, that the victim of an aggravated kid-

napping died as a result of the crime, the convicted defendant

must be sentenced to die. There is no provision for the trial court

to consider any mitigating circumstances. It only allows the

court to determine the aggravating circumstance of death. This is

not constitutionally permissible.

To have a constitutionally valid death penalty, the United

States Supreme Court has established certain necessary pro-

cedures. See: Gregg v. Georgia, (1976), 428 U.S. 153, 96 S.Ct.

2909, 49 L.Ed.2d 859; Proffitt v. Florida, (1976), 428 U.S. 242, 96

S.Ct.2960, 49 L.Ed.2d 913; Jurek v. Texas, (1976), 428 U.S. 262,

96 S.Ct. 2950, 49 L.Ed.2d 929. None of those required procedures

are present in Montana's death penalty statute as it existed in

1974, nor were they provided otherwise in this case. Thus, defen-

dant’s death sentence cannot stand.

Issue 2. Defendant was sentenced to 40 years for Count ITI,

sexual intercourse without consent, inflicting bodily injury. This

sentence was imposed pursuant to section 94-5-503(3),

R.C.M.1947, which provides:

“Tf the victim is less than 16 years old and the of-

fender is 3 or more years older than the victim or if

the offender inflicts bodily injury upon anyone in

the course of committing sexual intercourse without

consent, he shall be imprisoned in the state prison

for any term of not less than 2 years or more than 40

years, except as provided in 95-2206.18.”

Defendant argues that there was insufficient evidence to support

the verdict that the defendant inflicted bodily injury upon Peggy

Lee Harstad in the course of committing sexual intercourse

without consent. Since that is so, defendant argues that his 40

year sentence is erroneous. We agree.

[4-6] The standard used to measure jury determinations is

well settled in this state. State v. Pascgo, (1977), Mont., 566 P.2d

-10-

802, 34 St.Rep. 657. The rule is that questions of fact must be

determined by the jury and given the required legal minimum of

evidence, this Court on review will not substitute its judgment

for that of the jury. State v. Merseal, (1974), 167 Mont. 409, 538

P.2d 1364. The evidence is examined to determine if there is

substantial evidence to support the conviction when viewed in

the light most favorable to the State. State v. Pascgo, supra;

State v. Merseal, supra; State v. Farnes, (1976), Mont., 558 P.2d

472, 33 St.Rep. 1270. Applying these standards here, we find in-

sufficient evidence to support the verdict that the defendant in-

flicted bodily injury in the course of committing sexual inter-

course.

The evidence shows that defendant did commit sexual inter-

course without consent. Nank testified that the defendant did so.

Negroid pubic hairs were found in the car. However, Nank did not

testify that defendant inflicted bodily injury upon Peggy Lee

Harstad while engaged in sexual intercourse. The pathologist,

Dr. Pfaff, specifically testified that he found no evidence of

physical injury to Peggy Lee Harstad during his examination of

the body.

The State argues that the evidence does show that Peggy Lee

Harstad was killed following her rape. This, they say, fits the re-

quirements of section 94-5-503(3), R.C.M. 1947, that bodily injury

was inflicted in the course of the rape. We are unconvinced. To

sustain a conviction for sexual intercourse without consent, in-

flicting bodily injury, there must be a showing of bodily injury as

that term is defined in the criminal code, section 94-2-101(5),

R.C.M.1947. That section reads:

‘i ‘Bodily injury’ means physical pain, illness, or any

impairment of physical condition and includes men-

tal illness or impairment.”

There is no evidence showing that the defendant inflicted any

such injuries on Peggy Lee Harstad. Thus, the verdict of the jury

that defendant inflicted bodily injury in the course of committing

sexual intercourse without consent is not supported by any

evidence and cannot stand. Defendant should properly have been

sentenced under section 94-5-503(2), R.C.M.1947, for committing

sexual intercourse without consent.

APB ind nro .

32.

Issue 3. Prior to trial, defendant moved to have suppressed

the evidence seized in Idaho—the motorcycle helmets and the

rope. He argues that his arrest without a warrant was unlawful

because of a lack of probable cause to arrest. He contends that

the ‘State did not have probable cause to arrest him until after

Nank’s confession several hours after his arrest. He further

claims that Nank’s constitutional rights were violated because

Nank’s confession and consent to the search were involuntary.

The District Court refused to suppress the evidence. Defendant

maintains this was reversible error and raises the same

arguments on appeal that he did in the suppression hearing.

[7] We find there was probable cause to arrest defendant

without a warrant. The legality of an arrest is determined by the

law of the jurisdiction where the arrest was effected. Miller v.

United States, (1958), 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d

1332. In this case, since the arrest took place in Idaho, Idaho law

must be applied to determine the validity of the arrest. Detective

Brake arrested defendant and Nank in Boise without a warrant

for a deilberate homicide in Montana. Idaho's general arrest

statute, section 19-603(3), I.C., provides in pertinent part:

‘‘A peace officer may make an arrest in obedience to

a warrant delivered to him, or may, without a war-

rant, arrest a person:

‘tk ok &

‘3. When a felony has in fact been committed and

he has reasonable cause for believing the person ar-

rested to have committed it.’’

An examination of Idaho law discloses no case determining

whether a peace officer may arrest a person in Idaho for a crime

committed elsewhere, without a warrant, by the authority given

him in this statute.

Idaho, like Montana, has adopted the Uniform Criminal Ex-

tradition Act. There is a provision in that act for arrests without

a warrant of fugitives from another state, which defendant and

Nank are. This provision is section 19-4514, I.C., which reads as

follows:

-]2-

“Arrest without a warrant.—The arrest of a person

may be lawfully made also by an officer or a private

citizen without a warrant upon reasonable informa-

tion that the accused stands charged with a crime

punishable by death or imprisonment for a term ex-

ceeding one (1) year in the courts of another state;

but when so arrested the accused must be taken

before a judge or magistrate with all practicable

speed and complaint must be made against him

under oath setting forth the ground for the arrest as

in the last section; and thereafter his answer shall be

heard as if he had been arrested on a warrant.”’

The courts in Idaho have not had occasion to interpret this

statute. ”

Other jurisdictions have held that this provision of the

Uniform Criminal Extradition Act implies the necessity of some

prior court action in the state where the crime was committed,

but the act is not intended to repudiate the common law rule that

an arrest may be made on probabie cause to believe the arrested

person had committed a crime in another state irrespective of

lack of complaint or warrant in their state. Desjarlais v. State

(1976), 73 Wis.2d 480, 243 N.W.2d 453.

‘In some jurisdictions an officer has no authority to

arrest without a warrant a fugitive from justice

from another state, even on telegraphic or personal

request of the officers of the demanding state. In

other jurisdictions an arrest may be made by an of-

ficer without a warrant, at least under certain cir-

cumstances, as where the fugitive has committed a

felony * *.’’ 35 C.J.S. Extradition, § 12b.

There are matters left wholly to the individual states. Burton v.

New York Cent. R. R. Co., (1917), 245 U.S. 315, 38 S.Ct. 108, 62

L.Ed. 314. Thus, the inquiry must be whether or not Idaho

recognizes the common law rule.

[8] In our view Idaho law recognizes the common law rule that

an arrest may be made without a warrant where the arresting of-

ficer has probable cause to believe the person arrested has com-

-13-

mitted a crime in another state. Defendant's arrest was legal in

this case as Detective Brake had probable cause to believe defen-

dant had committed a felony in Montana. Under Idaho law, pro-

bable cause exists where there is such a state of facts as would

lead a man of ordinary care and and prudence to believe or enter-

tain an honest and strong suspicion that such person has commit-

ted a crime. State v. Polson, (1959), 81 Idaho 147, 339, P.2d 510;

State v. Loyd, (1967), 92 Idaho 20, 435 P.2d 797. Here, Detective

Brake knew Peggy Lee Harstad had disappered on the night of

July 4, 1974. He knew defendant and Nank had been seen

together in the area of her disappearance on that night. He knew

their fingerprints had been identified on her car and purse. He

knew Negroid head hairs and pubic hairs were found in her car

and that defendant was a Negro. This constituted probable cause

to arrest them.

Next we must look to see if the search of the apartment and car,

where the helmets and rope were recovered, was lawful. We note

that this search was not the product of defendant’s and Nank’s

arrest. It was based on Nank’s consent to the search. Defendant

questions whether Nank’s consent was freely given. However,

defendant cannot assert any violations of Nank’s constitutional

rights.

[8] The rule in Montana is that a defendant does not have

standing to challenge violations of constitutional rights of a co-

defendant or third party by law enforcement authorities. State v.

Braden, (1973), 163 Mont. 124, 515 P.2d 692. This rule is based on

Alderman v. United States, (1969), 394 U.S. 165, 89 S.Ct. 961, 22

L.Ed.2d 176. Therefore, we hold defendant cannot claim any

violation of Nank’s Fourth Amendment rights and his consent to

the search made it a lawful search.

There was no error in the District Court’s denial of defendant's

motion to suppress.

Issue 4. Defendant claims the State refused to plea bargain

with him or to accept his conditional plea of guilty because he is a

black man. He claims it was because of his race that the State in-

sisted upon having a full trial in this case, where, upon convic-

tion, a death sentence could be imposed. He argues it is reversible

error for the State not to plea bargain or to accept his offer to

-14-

plead guilty. How this would be so, defendant has not made clear

to us.

[12,13] We recognize that a defendant may plead guilty while

maintaining his innocence, especially to avoid a death sentence.

Brady v. United States, (1970), 397 U.S. 742, 90 S.Ct. 1463, 25

L.Ed.2d 747; North Carolina v. Alford, (1970), 400 U.S. 25, 91

S.Ct. 160, 27 L.Ed.2d 162. However, these cases deal with at-

tempts to withdraw a guilty plea after it has been entered and

deal with the voluntariness of the original plea of guilty. These

cases do not require the trial court or the prosecution to accept a

guilty plea. The acceptance of a guilty plea to a charged offense is

within the discretion of the trial court.

[14] Accordingly, we find no error in the State’s refusal to plea

bargain with defendant or in the District Court’s refusal to ac-

cept his conditional plea of guilty while maintaining his in-

nocence.

Issue 5. Defendant contends the District Court erred in deny-

ing his motion to dismiss the Information for failure to state

facts sufficient to constitute an offense. His argument is that sec-

tion 95-1503, R.C. M.1947, relating to the form of a charge, re-

quires that the charge to be in ordinary and concise language, and

in such a manner that the defendant would know what was in-

tended. He alleges that the Information in this case did not meet

this requirement. Defendant premises his argument on the

State’s attempt to amend the Information after entry of defen-

dant’s plea. He alleges that the State, in attempting to amend the

Information, admitted the Information was defective. The trial

court refused to allow the Information to be amended. However,

the court itself amended Count II, the aggravated kidnapping

charge, to add the words: “resulting in the death of Peggy Lee

Harstad.”

[15, 16] We fail to see how the State’s attempt to amend the

Information aids the defendant in claiming the Information is

not sufficient. The State by amending the Information was try-

ing to make it a better Information. They were not claiming it

was insufficient as it existed. An Information need only be suffi-

cient to apprise the accused of the nature of the crime charged. It

need not be perfect.

“It is frequently stated, as a general rule, either

with reference to statutory misdemeanors, or to

statutory offenses generally, that a charge is suffi-

cient which follows the language of the statute

creating the offense; and it has been held that, if ac-

cused insists on greater particularity, it is incum-

bent on him to show that from the obvious intention

of the legislature or known principles of law the par-

ticular case forms an exception to the general rule.’’

42 C.J.S. Indictments and Informations, § 139c.

[17] Montana follows this general rule. An Information that

properly charges an offense in the language of the statute

describing the offense is sufficient. State v. Randall, (1960), 137

Mont. 534, 353 P.2d 1054; State v. Shannon, (1933), 95 Mont.

280, 26 P.2d 360; State v. Haley, (1957), 132 Mont. 366, 318 P.2d

1084; State v. Duncan, (1957), 130 Mont. 562, 305 P.2d 761; State

ex rel. Glantz v. District Court, (1969), 154 Mont. 132, 461 P.2d

193.

[18] We hold that the Information filed in this case was suffi-

cient. Each count followed the language of the statutes for

deliberate homicide, section 94-5-102, R.C.M.1947, aggravated

kidnapping, section 94-5-303, R.C.M.1947, and sexual intercourse

without consent, section 94-5-503, R.C.M.1947.

As for the amendment by the court to Count II, contrary to

defendant’s contention, we find that it was a proper amendment.

Section 95-1505, R.C.M.1947, as it existed in 1975, allowed an In-

formation to be amended as to form after entry of plea but not as

to substance. Defendant argues that the amendment to Count II

was one of substance. He claims that prior to this amendment, he

was not subject to the death penalty. We disagree.

[19, 20] We recognize that any amendment to an Information

which charges a crime different in penalty is a matter of

substance and impermissible. State v. Fisher, (1927), 79 Mont.

46, 254 P. 872; State v. Knight, (1963), 143 Mont. 27, 387 P.2d 22.

Here, however, the amendment was one of form. Defendant knew

from the very beginning the death penalty was going to be

sought. Prior to the amendment to Count II, the death penalty,

-16-

upon a conviction, could have been sought under either Count I or

Count II. The amendment simply limited it to Count II. Further-

more, the record indicates that defendant was not surprised the

death penalty was being sought. He objected to the amendment

in the lower court, but he did not ask for any continuance as a

result of it. He clearly knew prior to the amendment that the

State was seeking the death penalty.

In any event, no legal prejudice resulted from the amendment

of Count II in the light of our holding that Montana’s death

penalty statute as it existed in 1975 is unconstitutional.

Issue 6. On October 20, 1975, defendant filed a challenge to

the jury panel claiming that it was not drawn and summoned in

accordance with the jury selection statutes. The challenge was

made in conformity with section 95-1908, R.C.M.1947, which

states how a jury challenge is to be made. After a full hearing on

the challenge, the District Court dismissed the jury panel.

The court then ordered a new panel of 60 jurors be drawn and

summoned to appear for trial on October 23, 1975. Defendant

raised a second jury challenge to this panel. He again argues that

the panel was not drawn and summoned in accordance with the

statutes. The court denied the challenge. Defendant, on appeal,

claims his second jury challenge should have been granted. We

disagree.

Basically, defendant raises three arguments concerning why

the jury panel that tried him was improperly drawn and summon-

ed. First, he says that there were more numbers in the jury box

than names on the jury list. There were 55,763 numbers in the

box and 44,765 on the list. When a number was drawn higher

than 44,765, it was returned to the box. Defendant claims that

having more numbers in the jury box than names on the jury list

fails to substantially comply with the jury selection statutes and

constitutes reversible error.

[21,22] Section 93-1402, R.C.M.1947, requires that each name

on the jury list be assigned a number. Section 93-1404,

R.C.M.1947, requires that the numbers be placed in the jury box

in such a manner that they cannot be distinguished from each

other. Neither of these statutes require that there be only as

many numbers in the jury box as names on the jury list except

Bibel rer +.

-17-

there was more than one number for each juror. Therefore, we

hold that having more numbers in the jury box than names on the

jury list does not destroy the validity of the panel drawn. The

purpose of these statutes is to insure that there be no unfairness

in the selection of the jury. State ex rel. Henningsen v. District

Court, (1959), 136 Mont. 354, 348 P.2d 143; In re Jury Box Cap-

sules, (1967), 150 Mont. 583, 447 P.2d 687. We find no unfairness

here in the drawing of the jury panel. .

[23, 24] Second, defendant complains that the 200 jurors

drawn were notified by telephone by the District Court clerk to

see if they would be available for the trial on October 23, 1975.

Sixty-one of those called replied they would be available. Defen-

dant claims that, in effect, the District Court clerk excused 139

jurors, and that, under the law, the District Court clerk may not

excuse jurors from jury duty. Further, defendant claims that the

jurors were allowed to excuse themselves for slight or trivial

cause in violation of the statute on being excused from jury duty.

Section 93-1512, R.C.M.1947, authorizes the District Court

judge to draw and summon additional jurors for a trial when it is

necessary to do so. This section further provides that the addi-

tional jurors may be notified by telephone by the clerk of court.

In this case, after dismissing the first jury panel, additional

jurors were needed. The District Court judge drew 200 numbers

out of the jury box to get a 60 member jury panel. He authorized

the clerk to orally notify the jurors. The clerk, as section 93-1512,

R.C.M.1947, authorizes, notified the jurors by telephone. Thus,

defendant’s claim that notifying the jurors by telephone was im-

proper is without merit.

Section 93-1305, R.C.M.1947, does deal with the grounds for

being excused from jury duty. It provides that a juror may not be

excused for slight or trivial cause. On the record that is before us,

there is no showing that the clerk excused any of the jurors call-

ed. We note that the district judge had ordered the clerk to have a

panel of 60 jurors for the trial on October 23, 1975, which he did.

Further, the rule in Montana is that the failure of a juror to ap-

pear, if properly notified, will not invalidate a subsequent trial, as

a defendant has no right to select a particular juror, but has only

-18-

a right to reject a juror. State v. Moran, (1$63), 142 Mont. 423,

384 P.2d 777. Applying that rule to this case, we hold that defen-

dant’s trial should not be invalidated because 60 out of 200 jurors

aa which was the size of the panel ordered by the District

ourt.

Finally, defendant argues that the speed used in selecting the

jury denied him his right to a fair and impartial jury panel. He

argues that the jury panel did not represent a cross-section of the

community as most of the jurors came from the west side of Bill-

ings, Montana.

[25, 26] The rule is that a defendant has a right to a fair and

impartial jury selected from the proper place and drawn and sum-

moned according to law. The systematic and intentional exclu-

sion of a class of persons or a purposeful and deliberate design to

secure the jury from a limited area instead of the entire county

deprives a defendant of fundamental constitutional rights. State

v. Hay, (1948), 120 Mont. 573, 194 P.2d 232. In Hay this Court

found that the defendant failed to establish that he had been

deprived of his right to have a jury taken from a cross-section of

the county by showing that all members of the jury panel were

residents of the county seat, in the absence of a showing that it

was the result of deliberate design. In this case, there was no

showing of deliberate design to get a jury panel from only the

west side of Billings.

We hold that the jury was selected in substantial compliance

with the law and that defendant’s claim that he was denied a fair

and impartial jury must fail.

Issue 7. Defendant claims error in improperly restricting his

cross-examination of some of the State’s witnesses. At the time

of trial section 93-1901-7, R.C.M.1947, governed the scope of per-

missible cross-examination as to any testimony elicited on direct

examination or facts connected therewith and all other facts con-

nected with the witness’s testimony which tends to enlighten the

jury on the question in controversy. State Highway Commission

v. Bennett, (1973), 162 Mont. 386, 513 P.2d 5.

[27] We have examined the District Court’s rulings concern-

ing cross-examination of State’s witnesses Ash, Schiffer and

Nank, and find no error. The questions asked were either

/

argumentative, immaterial or otherwise answered.

[28] Defendant also claims error in connection with his at-

tempted cross-examination of State’s expert witness Hippard

from the F.B.I. laboratory concerning identification of the hairs

taken from the Harstad vehicle and comparison of these hairs

with defendant Coleman’s hair. The District Court properly

disallowed cross-examination of Hippard concerning his ability

to identify hair from pictures as the witness testified that he

could not look at a picture of a hair and identify it.

[29] Hippard testified on direct examination that the only way

of identifying and comparing hair was by a comparison

microscope which was the method he used. Although defendant

offered to submit hair samples to Hippard, he did not specifically

state how this would be done or offer to furnish a comparison

microscope. The District Court did tell defendant to proceed with

his cross-examination and that they were then through with the

witness unless defendant himself called him on direct, which

defendant did not do. The matter of permitting experiments,

tests and demonstrations is one addressed to the sound discre-

tion of the court. State v. London, (1957), 131 Mont. 410, 310

P.2d 571; State v. Keller, (1952), 126 Mont. 142, 246 P.2d 817;

State v. Thompson, (1974), 164 Mont. 415, 524 P.2d 1115. We

find no abuse of that discretion here under the offer of the defen-

dant and the District Court’s rulings.

Issue 8. Defendant assigns error in the District Court’s denial

ef defendant’s challenge to Nank’s mental competency as 4

witness.

{30-32} A Montana statute provides that those of unsound

mind cannot be witnesses. Section 93-701-3(1), R.C.M.1947. It is

the function of the trial judge to determine the competency of a

witness to testify. State v. Newman, (1923), 66 Mont. 180, 213 P.

805. There is no presumption that a witness is incompetent and

the burden is on the party asserting the incompetency to prove it:

State v. Newman, supra. This defendant did not do.

{33} Furthermore, if a witness is sufficiently competent to

understand and appreciate the nature and obligation of an oath

and can correctly narrate the facts involved in the case, he may

testify and the state of his mentality goes only to the weight of

-20-

his testimony and not to its admissibility. Martin v. Hover,

(1921), 60 Mont. 302, 199 P. 694.

We find no error by the District Court on the issue.

Issue 9. At the close of the State’s case, defendant moved to

dismiss the Information, or, in the alternative, for a judgment of

acquittal for lack of corroboration of Nank’s testimony. Cor-

roboration of the testimony of one. responsible or legally accoun-

table for the same offense is necessary to sustain a conviction.

‘Section 95-3012, R.C.M.1947. This statute requires corroboration

by evidence which tends to connect the defendant with the com-

mission of the offense, without the testimony of the person legal-

ly accountable or responsible. Defendant argues that there was

not sufficient corroboration of Nank’s testimony to sustain

defendant's conviction. We disagree.

[34] The rule on corroboration is stated in State v. Cobb,

(1926), 76 Mont. 89, 245 P. 265. In that case, we held that the cor-

roborating evidence may be supplied by the defendant or his

witnesses; it may be circumstantial evidence; it need not be suffi-

cient to sustain a conviction or establish a prima facie case of

guilt; and it need not be sufficient to connect the defendant with

the crime but must tend to connect him with the crime. In State

v. Keckonen, (1938), 107 Mont. 253, 84 P.2d 341, we held that

where the alleged corroborative evidence is equally consonant

with a reasonable explanation pointing toward innocent conduct

on the part of defendant, then such evidence does not tend to con-

nect him with the commission of the offense and is in the realm of

speculation, not corroboration. Where the claimed corroboration

shows no more than an opportunity to commit a crime and simply

nb NEI =r hy is not sufficient corroboration to justify a

conviction upon the testimony of an accomplice. ;

(1933), 95 Mont. 317, 26 P.2d 341. onesie

(35] Applying those rules to this case, we hold there was suffi-

cient corroboration of Nank’s testimony to sustain defendant’s

conviction. The corroborating evidence is: The crack in defen-

dant’s motorcycle helmet; a hair of Peggy Lee Harstad being on

the rope belonging to these men; the fingerprints on her car and

in her purse; the Negroid pubic hairs similar to defendant's and

the Negroid head hair found in her car; and, the evidence that

defendant and Nank were seen together on the same road and at

approximately the same time that Peggy Lee Harstad disap-

peared. This evidence tends to connect defendant with the com-

mission of the offenses charged. It is evidence of more than mere

opportunity or suspicion that defendant committed these of-

fenses. This evidence does not establish any reasonable explana-

tion pointing toward innocent conduct. We find no error in the

District Court’s denial of defendant’s motion.

Issue 10. On appeal, as at the trial, defendant raises objec-

tions to certain questions and answers elicited from the State’s

witnesses. He argues that these are cumulative errors requiring

reversal. We do not agree.

[36] His first objection is to Nank’s being allowed, on direct

examination, to testify that he had told the same story concern-

ing the crime to the police and the F.B.I. prior to the trial. Defen-

dant claims that this testimony was used to buttress and fortify

Nank’s testimony before his testimony was challenged.

Basically, the questions to Nank were to find out if Nank was

testifying to the truth. This Court has held in the past that the

State may ask such questions on direct examination. State v. Col-

lett, (1946), 118 Mont. 473, 167 P.2d 584. In Collett, this Court

said the District Court did not commit prejudicial error in allow-

ing the witness to answer a question as to whether he was testify-

ing to the truth. The rationale is that while the answer is in the

nature of a self-serving declaration, it is only a reaffirmation of

what the witness promises to do when he takes the oath. We

believe this approach is sound and will follow it here. We hold the

questions and answers as to Nank’s prior statements do not con-

stitute prejudicial error.

(37, 38] Defendant then objects to an F.B.I. agent being allow-

ed to testify about defendant’s attitude in his interview with

defendant at Sheridan, Wyoming. Specifically, the agent testified

that defendant was evasive during questioning.

We agree that this was improper opinion evidence. However,

technical errors or defects will not provide a basis for reversal in a

criminal prosecution. State v. Gallagher, (1968), 151 Mont. 501,

445 P.2d 45. We hold that the admission of this testimony was

only a technical error and is not a basis for reversal.

-29.-

[39] Next, defendant argues that a F.B.I. fingerprint expert

was allowed to testify on re-direct examination beyond the scope

of cross-examination. The questions to which the defendant ob-

jected concerned the date on which the F.B.I. laboratory received

certain fingerprint cards. The record reveals there was some con-

fusion as to the dates various fingerprint cards were received.

Under those circumstances, the District Court did not abuse its

discretion in allowing the State to clarify the issue on re-direct.

[40] Finally, defendant objects to witness Makin testifying as

to where he was told certain hairs came from. Defendant claims

this was hearsay. An earlier witness, Ash, who was the declarant,

testified as to where he found the hairs.

Here, Undersheriff Makin was testifying to establish the chain

of evidence. He had received the hairs from Officer Ash, who told

Makin he obtained the hairs from the abondoned Harstad vehicle.

Thus, the declaration of Ash was a part of the chain of evidence.

We find no cumulative error in the testimony of the State’s

witnesses sufficient to warrant reversal.

Issue 11. Defendant objects to certain instructions which

were given to the jury and offered instructions that were refused.

We find the jury was properly instructed.

[41] Defendant’s first objection is to Instruction 22. This in-

struction was that if the jury found defendant committed a

homicide and no circumstances of mitigation, excuse or justifica-

tion appears, they may infer that the homicide was committed

knowingly and purposely. This instruction was based on section

95-3004(2), R.C.M. 1947. The instruction follows the statute.

Defendant argues that instruction as a statutory presumption is

unconstitutional, citing Leary v. United States, ( 1969), 395 U.S.

6, 89 S.Ct. 1532, 23 L.Ed.2d 57. This case provides that to have a

valid criminal statutory presumption, the presumed fact must

more likely than not flow from the proved fact on which it

depends.

We find this instruction and statute are constitutionally valid.

The jury was instructed that they ‘‘may”’ find knowledge or pur-

pose when there are no circumstances of mitigation, excuse, or

justification. They are not required to find this. Thus, it is not a

-23-

conclusive presumption. The instruction and statute do not

violate the Leary requirement because a finding of knowledge or

purpose would more likely than not flow from the proved fact

that a homicide was committed by defendant and where there

were no circumstances of mitigation, justification, or excuse.

[42] Defendant objects to Instruction 26, which gave the

statutory definition of ‘‘knowingly”’, and further objects that his

offered Instruction 16, which dealt with criminal intent and

premeditation, was not given. Instruction 26 was the statutory

definition of ‘knowingly’ as contained in section 94-2-101(27),

R.C.M.1947. The portion of the statute and instruction defendant

objects to is: ‘When knowledge of the existence of a particular

fact is an element of an offense, such knowledge is established if a

person is aware of a high probability of its existence.”’ Defendant

argues that this definition does not comply with the traditional

requirements of criminal intent. That is why, according to defen-

dant, his offered Instruction 16 should have been given as it ex-

plained the criminal intent and premeditation necessary for a con-

viction of deliberate homicide.

We believe there was no error in the court's giving of Instruc-

tion 26 and refusing to give defendant's Instruction 16. We have

considered the necessity of instructing the jury on criminal intent

and premeditation before. State v. Sharbono, (1977), Mont., 563

P.2d 61, 34 St.Rep. 196. In that case, we found no error in the

District Court's refusal to give an instruction identical to defen-

dant’s offered Instruction 16. There, we held that the legislature

had changed the requirements of mens rea. This Court said, in

discussing the question of criminal intent:

‘Upon the whole it is the person who means to do

the thing that constitutes a crime, knows he is doing

it, and knows that there is a substantial and un-

justifiable risk in doing it, whose conduct warrants

condemnation of the kind from which conviction

results.’’ Sharbono, 563 P.2d at 72.

Therefore, we find the court properly instructed the jury as to the

‘‘knowledge”’ required for a conviction in Instruction 26 and pro-

perly refused defendant’s Instruction 16.

[43] Defendant objects that his offered Instruction 10 was not

given. This instruction deals with the burden of proof. Jf comes

from State v. Halk, (1914), 49 Mont. 173, 141 P. 149.

The Court adequately instructed the jury concerning the

burden of proof in Instruction 4. Thus, there is no error in refus-

ing defendant’s offered Instruction 10.

[44] Next defendant complains that his proposed Instruction

14 on reasonable doubt was not given. We believe the court

rightfully refused this instruction since the jury was adequately

instructed on reasonable doubt in the court’s Instructions 5, 6, 7,

and 10. Defendant’s proposed instruction would have only been

redundant, and therefore, was unnecessary.

[45] Defendant contends that his offered Instruction 34

should have been given. This instruction dealt with the jury not

having to decide in conformity with the greater number of

witnesses if their testimony does not produce conviction in their

minds. Defendant argues that with the number of witnesses the

State produced, he was entitled to this instruction. We disagree.

We must point out that the instruction defendant proposed

was adequately covered in the court’s Instruction 2. This instruc-

tion read in part:

‘You are not bound to decide in conformity with the

declarations of any number of witnesses, not pro-

ducing conviction in your minds, against a less

number or against a presumption or other evidence

satisfying your minds. The direct evidence of one

witness who is entitled to full credit is sufficient for

the proof of any fact in this case.’’

This is a standard Montana Jury Instruction Guide instruction

which correctly states the law. The District Court was correct in

refusing defendant’s offered Instruction 34 covering the same

subject.

[46] Next, defendant alleges that his offered Instruction 35A

should have been given. This instruction was on the lesser includ-

ed offense of mitigated deliberate homicide.

Where there is no evidence of mitigation that would fit within

the statutory definition of mitigated deliberate homicide, section

94-5-103, R.C.M.1947, the trial court should properly refuse to in-

struct on such crime. State v. Baugh, (1977), Mont., 571 P.2d 779,

34 St.Rep. 1315. In viewing the record here, we find no evidence

of mitigation. This instruction was properly refused.

[47] Defendant also objects to Instruction 40. This instruction

told the jury that sentencing was vested in the court and the jury

was not to consider the possible punishment defendant could

receive in reaching a verdict. Defendant’s objection is that in this

instruction, and in voir dire of the jury, the jury was led to believe

that the judge had discretion in imposing the death penalty.

This instruction simply told the jury sentencing was up to the

judge. The instruction does not state that the judge can mitigate

punishment. It only says that he has the power to impose punish-

ment, which is correct. It is where the jury is instructed as to the

various possibilities of sentence that prejudice to the defendant

exists. State v. Zuidema, (1971), 157 Mont. 367, 485 P.2d 952.

This is not the case here. The instruction was proper.

[48] Finally, defendant objects to the special verdict form

used on Count II. The jury was specifically asked to find if Peggy

Lee Harstad died as a result of the aggravated kidnapping. The

jury found that she did. Defendant argues that Montana law does

not provide for specific factual findings by the jury.

The jury was given general verdicts asking for a finding of guil-

ty or not guilty on each count. The jury was to make the addi-

tional finding that the element necessary for the imposition of the

death penalty was present. Under those circumstances, this addi-

tional factual finding does not fall into the vice of a special ver-

dict. It does not require a fact determination which could be used

to undermine the general verdict. Thus, the verdict forms were

permissible.

In any event, our holding on Montana’s death penalty statutes

renders this specification of error nonprejudicial.

Issue 12. Defendant objects to some exhibits which were ad-

mitted into evidence and some of his own which were refused ad-

mission.

His first objection is to State’s Exhibit 20. This was a picture

of the area in which Peggy Lee Harstad’s body was found. In the

picture, her decomposed body can be seen. Defendant argues that

this picture was prejudicial because it is a gruesome photograph.

He claims that any relevancy of this photograph is outweighed

by its prejudicial effect.

[49] This Court has held that photographs which help the jury

understand the case are admissible, but photographs that are

calculated to arouse the sympathies or prejudices of the jury are

properly excluded. State v. Bischert, (1957), 131 Mont. 152, 308

P.2d 969. This Court went on to say in that case, that

photographs may not be used if intended to inflame the minds of

the jury rather than enlighten them as to the facts. We affirm the

rule of the Bischert case, but reject its application to this case.

[50] In Bischert, the photograph was extremely distasteful

and did not make a significant contribution to the development of

the facts in that case. This is not the case here. We have examin-

ed the photograph and find that it is hazy, indistinct, and of poor

quality. Any gruesome character that the photograph might

otherwise possess is lost in its developrint and reproduction.

The photograph is relevant in that it shows the jury the area in

which the body was found; and it corroborates Nank’s testimony

as to her being fully clothed and as to where the body was. Under

the circumstances here, the photograph’s probative value

outweighs its prejudicial effect.

Defendant objects to the admission of two other photographs,

namely State’s Exhibits 41 and 43. There were pictures of the

apartment building and the parking lot in Boise, where defendant

and Nank were arrested. Defendant argues that these

photographs were irrelevant and cumulative evidence.

[51, 52] As a general rule, photographs, when relevant to

describe a person, place or thing, are admissible for the purpose

of explaining and applying the evidence and assisting the court

and jury in understanding the case. Fulton v. Chouteau County

Farmers’ Co., (1934), 98 Mont. 48, 37 P.2d 1025. The photographs

of the apartment building and parking lot helped to describe the

place where the defendant and Nank were arrested. These

photographs showed where the helmets and rope were recovered.

These photographs assisted the jury in understanding the arrest

and search in Boise. They were properly admitted.

[53] Defendant also objects to the admission of Nank’s motor-

cycle helmet into evidence. His complaint is that the chain of

evidence was not established prior to the admission of the helmet

and further complains that he was not allowed to voir dire Nank

prior to its admission. Defendant states there was a problem with

the chain of evidence in that this helmet was labeled as belonging

to defendant and not Nank.

Since Nank, prior to the admission of the helmet, positively

identified it as his, we find the chain of evidence established prior

to its admission. The mismarked label is of no consequence as the

label was not admitted into evidence. We recognize that defen-

dant might have been allowed to voir dire Nank prior to the ad-

mission into evidence of the helmet but such was not required.

There is no indication that such a voir dire would have produced a

different result. At most, only a procedural error not affecting the

merits was involved, and not a prejudicial error requiring rever-

sal. State v. Heiser, (1965), 146 Mont. 413, 407 P.2d 370.

[54] Defendant further claims error in admitting in evidence

the waiver of rights form given to defendant in Boise, which he

refused to sign. Defendant claims this exhibit was irrelevant and

should have been excluded as cumulative evidence.

We can find no error in the admission of this exhibit. This ex-

hibit aided in the jury in understanding the events of this case

that occurred in Boise, Idaho. It supported the testimony of the

Boise detectives as to the date of the arrest, the time of the ar-

rest, and that defendant was informed of his constitutional

rights. The exhibit was properly admitted.

[55] Defendant objects that his Exhibits V, W, X and Y were

refused. These exhibits were pictures of the State’s fingerprint

photos. They were enlargements and an overlay of them was

made. By use of the overlay, defendant wanted to show any dif-

ferences in the fingerprints.

Our review of the record indicates that defendant did not lay a

founcation, prior to moving for the admission of his exhibits,

showing that fingerprints could be compared in the manner

defendant was attempting to compare them. What defendant

wanted to do was to show the jury by actual measurement the

difference in the distance between the ridges between a known

* -28-

print of defendant and the print found in Peggy Lee Harstad’s

purse. A fingerprint cannot be compared in this manner. The

same fingerprint will produce differing results with respect to a

measurement between the ridges depending upon the pressure

applied in making the print and the manner in which the print

was left upon the surface. Fingerprints are compared by deter-

mining if the same ridge characteristics are present in a known

print and unknown print. These ridge characteristics will not

vary between the different ways in which an impression is made

on a surface.

[56] The rule is that the determination of whether a proper

foundation has been laid in order to introduce exhibits into

evidence rests with the lower court and its determination will not

be overturned unless there is a clear abuse of discretion. State v.

Olsen, (1968), 152 Mont. 1, 445 P.2d 926. Here the District Court

properly excluded the exhibits because no proper foundation was

laid for their admission.

[57] Finally, defendant claims that the court erred in refusing

his Exhibit T showing some calculations as to the height of the

water level in the Yellowstone River on July 4, 1974.

This exhibit was to aid defendant's argument that Peggy Lee

Harstad was not drowned in the river as Nank testified she was.

Defendant was trying to prove that the river, on July 4, 1974,

was too deep, in the area where the body was found, for Nank and

defendant to be holding her under the water. This exhibit was not

admissible because of a lack of a proper foundation. Our review of

the transcript reveals that the witnesses who prepared this ex-

hibit were never shown to have the qualifications to prepare such

an exhibit; it was not made clear how they arrived at the calcula-

tions they made of the height, flow, and volume of the river: and,

it was not established that their calculations of the height of the

river on July 4, 1974, were competent. Under such circumstances,

there was no error in denying this exhibit admission in evidence.

[58] Issue 13. Following his conviction, defendant moved for a

new trial. One of the grounds defendant raised was that after

both sides had rested their case, defendant was contacted by a

witness who knew of defendant’s good conduct and character.

Defendant argues that this newly discovered evidence is grounds

for a new trial under section 95-2101, R.C.M.1947.

ET,

-29- J

“It is well-settled that a new trial will not be

granted upon the ground of newly discovered

evidence where it appears that such new evidence

can have no other effect than to discredit the

testimony of a witness at the original trial. It is only

when it is shown by competent and satisfactory

evidence that appellant would not have been con-

victed, but for this evidence, that a new trial will be

granted for newly discovered evidence. (Citations

omitted.)’’ State v. Schleining, (1965), 146 Mont. ;,

17, 403 P.2d 625.

In this case, defendant’s newly discovered evidence would only

go to discredit Nank’s testimony and defendant has not shown

that this evidence would make the difference between his being or

not being convicted in a new trial. Under those circumstances, we

will follow the general rule in finding no error in the denial of

defendant's motion for a new trial.

We have examined the subsidiary contentions of defendant and

find that none would change our holdings in this case or merit

special discussion in this opinion.

The judgement of conviction on all three counts is affirmed.

The sentences imposed for Counts II and III are vacated. The

ro . remanded to the District Court for resentencing on Counts

and III.

DALY, J. and L. C. GULBRANDSON,* District Judge, con-

cur.

HARRISON, Justice, concurring in part and dissenting in

part.

I concur in the opinion but dissent as to the majority's disposi-

tion of Issue 2. The majority finds no substantial evidence to sup-

port the jury’s determination that defendant inflicted bodily in-

jury in the course of committing sexual intercourse without con-

sent. Section 94-5-503(3), R.C.M.1947, provides:

‘* * * if the offender inflicts bodily injury upon

anyone in the course of committing sexual inter-

course without consent, he shall be imprisoned in

-30-

the state prison for any term of not less than 2 years

or more than 40 years, except as provided in

95-2206.18.”

The majority freely admits ‘‘the evidence shows that defendant

did commit sexual intercourse without consent”’ and the jury so

found. Nor is there any quarrel that there is substantial evidence

showing that defendant participated in the killing of Peggy Lee

Harstad. These facts were proven to the jury despite the fact, as

the majority notes, the pathologist could find no evidence of

physical injury to her badly decomposed body. While the majori-

ty is unclear in what respect the State’s proof was lacking, the

State must have failed to prove either that (1) defendant inflicted

‘bodily injury’’ on the victim, or (2) the bodily injury was in-

flicted in the course of the commission of the rape.

Undoubtedly, there is substantial evidence that defendant in-

flicted bodily injury on the victim. As noted above, the evidence

indicates defendant participated in causing her death. Certainly

death is ‘‘bodily injury”’ within the meaning of the statute. That

death is ‘‘impairment of physical condition’”’ is so obvious that it

deserves little comment. Section 94-2-101(5), R.C.M.1947. To

hold otherwise would lead to absurd results. For example, a per-

son who breaks the arm of the victim in the course of committing

a rape can receive a 40 year sentence for the rape, but a rapist

who kills the victim can receive no more than a 20 year sentence

for the rape. I cannot believe the legislature intended that a

rapist receive a lighter sentence because he did more harm to the

victim than is required by the definition of “bodily injury.”’.

If death is, indeed, bodily injury, the only remaining require-

ment is that the death be inflicted ‘in the course of committing

sexual intercourse without consent”’. This phrase is explained in

section 94-5-503(4), R.C.M.1947:

‘An act ‘in the course of committing sexual inter-

course without consent’ shall include an attempt to

commit the offense or flight after the attempt or

commission.’’ (Emphasis added.)

Clearly there is substantial evidence to show the victim was

killed in the ‘‘flight after” the commission of the rape. According

to Nank’s testimony, she was raped in her car, and then beaten

and drowned nearby. Had she lived, she would have been able to

identify defendant and Nank as the perpetrators. The jury cer-

tainly would have been reasonable to infer that she was killed in

an attempt to cover up the commission of the rape. The majority

completely ignores the ‘‘flight after’ language of the statute.

In the summary, I find substantial evidence to support the

jury’s verdict that defendant inflicted “‘bodily injury” upon the

victim ‘“‘in the course of committing sexual intercourse without

consent’. Her death supplied all the “‘bodily injury’’ required.

Her death was inflicted in the course of committing the rape

because it was an integral part of the flight after the commission

of the offense. This is precisely the type of conduct the statute

was intended to punish to the most severe extent.

I would affirm the imposition of the 40 year sentence.

SHEA, Justice, dissenting:

I agree with the majority opinion holding section 94-5-304,

R.C.M.1947, to be unconstitutional. Clearly, the United States

Supreme Court has prohibited mandatory death penalties

because there is no allowance for consideration of mitigation.

However, I would go yet another step and reverse the conviction

because the second jury panel was not chosen in substantial com-

pliance with the applicable statutes of calling in a new jury array.

In fact, there was a complete failure to follow sections 93-1501

and 93-1509, R.C.M.1947.

The majority proceeds with this issue as though the District

Court was only calling in additional jurors to complement the

jury panel already legally in existence. The law invol¥ed is con-

tained in Title 93, Chapter 15, entitled ‘“‘JURORS—DRAWING

AND SUMMONING FOR COURTS OF RECORD.” Section

93-1512, R.C.M.1947, upon which the majority relies, is but one

of the statutes covering the selection of juries. That section pro-

vides:

“Obtaining additional jurors when necessary.

Whenever it appears to a district judge that addi-

tional jurors will be needed for any term or trial the

-32-

judge shall draw as many numbers from the jury

box [No. 1] as are necessary to secure the required

number of additional jurors. Before drawing the

numbers, the judge shall by appropriate order

designate the number of jurors needed, and when

the judge believes that securing the additional

jurors from all of the county would cause un-

necessary delay or expenses, [then] he may order the

jurors selected from only a designated portion of the

county, which portion shall never be less than the

corporate limits of the county seat. If, in the selec-

tion of the additional jurors, a number is drawn and

the jury list shows the person represented by the

number to be a resident of an area outside the area

designated by the court order, then that number

shall be returned to the jury box and a new number

drawn. When the required number of names have

been selected, the judge may order the prospective

jurors notified by telephone by the clerk of the court

= Bsa aig ei them summoned by the sheriff

either by certified mail or by per ice.”’ -

aa ee y personal service.”’ (Em

This statute allows additional jurors to be summoned b

telephone (as one of the means of summoning a juror) where the

Jury array, then legally in existence, is not sufficient in number to

complete the work of the court during the term of court. It does

not apply where the legal existence of a jury array has been suc-

cessfully challenged and it therefore becomes necessary to sum-

recognizes that this happened by stating:

“* * * On October 20, 1975, defendant filed a

challenge to the jury panel claiming that it was not

drawn and summoned in accordance with the jury

selection statutes. The challenge was made in con-

formity with section 95-1908, R.C.M.1947, which

nl MN a

a ne AE NY

|

|

|

-33-

states how a jury challenge is to be made. After a

full hearing on the challenge, the District Court

dismissed the jury panel.” (Emphasis added.)

Clearly, upon this dismissal, the jury panel was no longer legal-

ly in existence. If any more cases were to be tried during that jury

term, an entire new jury panel had to be summoned. In such case

sections 93-1501 and 93-1509, R.C.M.1947, come into play. Sec-

tion 93-1501, ““Summoning of trial jury’’, provides:

‘‘At least once each year in each county, when a civil

or criminal case has been at issue and ready for trial

for more than six (6) months and the plaintiff or

defendant in such case has requested a jury trial or

whenever the business of a district court requires

the attendance of a trial jury for the trial of civil or

criminal cases, and no jury is in attendance, the

court must make an order directing a trial jury to be

drawn and summoned to attend before said court.

Such order must specify the number of jurors to be

drawn, and the time at which the jurors are required

to attend, which time may be at the same term in

which the jurors are drawn, or at the next suc-

ceeding term, in the discretion of the court. And the

court may direct that such causes, either criminal or

civil, in which a jury may have been demanded, be

continued and fixed for trial when a jury shall be in

attendance.” (Emphasis added.)

Thereafter, the statutes providing for the mechanics of selecting

a jury panel (sections 93-1503 et seq.) are followed until the re-

quisite number of jurors is chosen from the jury list and jury box-

es. After this is done, the jurors are then summoned in the man-

ner as provided in section 93-1509, which provides:

“The sheriff, as soon as he receives a list or lists of

jurors drawn, shall summon the persons named

therein to attend the court at the time mentioned in

the order, by a written notice by certified mail to

that effect addressed to them to the post office ad-

dress named in the jury list and deposited in the

-34-

post office with the postage thereon prepaid, except

in cases where the district judge expressly directs

that such service shall be made by giving personal

notice, and shall return the list to the court at the

opening of the regular session thereof, or at such

session or time as the jurors may be ordered to at-

tend, specifying the names of those who are sum-

moned, and the manner in which each person was

notified.’’ (Emphasis added.)

There can be no question that sections 93-1501 and 93-1509

must be followed in circumstances where a jury panel is not

already legally in existence. Section 93-1512 applies only where

for some reason there are not sufficient numbers on the original

panel to complete the business of the court for the particular term

involved. Here, the District Court entirely ignored sections

93-1501 and 93-1509 and the majority has approved this bypass.

The procedure actually used by the District Court is fraught with

dangers and is hardly ihe procedure to be approved for summon-

ing an entire jury panel when a man is on trial for his life.

Here, a District Court, after dismissing an entire jury panel for

procedural irregularities in the summoning process, commits an

error equally as grave in allowing the clerk of court to obtain six-

ty willing jurors by calling them on the telephone.

We have no idea of the actual number of jurors called before

sixty of them agreed to sit. We do not know the exact procedure

used by the clerk in calling the jurors. Did he go down the list

alphabetically and continue calling until he obtained the required

number of jurors? Did he call jurors in areas of Yellowstone Coun-

ty where, from previous experience, he determined it would be

most likely to get an affirmative response? Did he in fact call

most of the jurors first who lived on the west side of Billings,

commonly known to be the area where “‘successful people live?

What did the clerk of court tell each person when he called? What

excuses did the potential jurors give for not appearing? Did the

clerk tell the jurors what excuses would be permissible? We will

never know the answers to these questions. Of one thing,

however, I am certain. If it so happened that the sixty jurors

ultimately serving were a true cross-section of the residents of

Yellowstone County, it was an accident. It did not occur because

the District Court scrupulously followed the law. Under these cir-

cumstances, it is a travesty to allow the conviction to stand.

In State v. Fitzpatrick, (1977), Mont., 569 P.2d 383, 388, 34

St.Rep. 736, 740, this Court stated:

‘This Court has long held the accused in a criminal

prosecution is constitutionally guaranteed a trial by

an impartial jury selected and drawn in accordance

with the law. State ex rel. Henningsen v. District

Court, supra; State v. Hay, 120 Mont. 573, 194 P.2d

232; Dupont v. McAdow, 6 Mont. 226, 9 P. 925. Any

material deviation or departure in procuring a jury

has been held to constitute a denial of fundamental

constitutional rights. State v. Porter, supra [125

Mont. 503, 242 P.2d 984]; State v. Groom, 49 Mont.

354, 141 P. 858; State v. Tighe, 27 Mont. 327, 71 P.

3; reversed on other grounds 35 Mont. 512, 90 P.

981.’ (Emphasis added.)

In the present case there was not only a material departure in

procuring a jury, there was a total failure to follow the applicable

law. Clearly, the defendant has been denied a fundamental con-

stitutional right.

For the foregoing reason I would reverse defendant’s convic-

tion and order a new trial.

-36-

2. STATE V. COLEMAN, SECOND APPEAL

and on Petition granted for rehearing

M » 605 P2d 1000

STATE of Montana, Plaintiff and Respondent,

v.

Dewey Eugene COLEMAN, Defendant and Appellant.

No. 14448.

Supreme Court of Montana.

Decided June 20, 1979

Filed June 20, 1979

On Rehearing Dec. 19, 1979.

SHEEHY, Justice.

[1] This matter comes before the Montana Supreme Court

from the District Court, Sixteenth Judicial District, Rosebud

County, under the automatic review provisions of sections

95-2206.12 through 95-2206.15, R.C.M.1947, now sections

46-18-307 through 46-18-310 MCA. In felony convictions not in-

volving the imposition of the death penalty, it is the function of

this Court to review the record and determine if any errors have

been committed resulting in the imposition of an illegal sentence,

while it is the function of the Sentence Review Division to deter-

mine if a legal sentence is appropriate in the circumstances. State

v. McKenzie (1978), Mont., 581 P.2d 1205, 1229, 35 St.Rep. 759

State uv. Simtob (1969), 154 Mont. 286, 462 P.2d 873, 874; sec-

tions 46-18-901 to 905 MCA. However, when the death penalty

has been imposed, the Legislature has directed this Court,

because of the nature of the penalty irivolved, to undertake ex-

peditiously both functions. Sections 46-18-307, —308 MCA;

Minutes of State Senate Judiciary Committee, J anuary 28, 1977.

We recognize that in McKenzie the Sentence Review Division

was allowed to conduct a review of the death penalty imposed,

however, the defendant in McKenzie was sentenced under

statutes different from those involved in this appeal. 581 P.2d at

1227. Because the review conducted by this Court statutorily

stands in place of any recourse to the Sentence Review Division,

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

upon this cause, excepting any action upon a petition for rehear-

ing.

Defendant, Dewey Eugene Coleman has been sentenced to

death for the crime of aggravated kidnapping under a judgment

and order entered by the District Court, July 10, 1978.

The facts on which Dewey Eugene Coleman was found guilty

by a jury on November 14, 1976, are set out in his earlier appeal

to this Court, which we decided April 26, 1978. State v. Coleman

(1978), Mont., 579 P.2d 732, 35 St.Rep. 560. We need not repeat

those incidents here. .

Defendant had been convicted of the crimes of deliberate

homicide, aggravated kidnapping, and sexual intercourse

without consent, violations of section 94-5-102, 94-5-303, and

94-5-503, R.C.M.1947, now sections 45-5-102, 45-5-303, 45-5-503

MCA. By our decision in the Coleman appeal, we remanded the

case to the District Court for resentencing on count II, ag-

gravated kidnapping, and count III, sexual intercourse without

consent. The judgment of conviction on Count I, deliberate

homicide and the sentence thereupon imposed, were affirmed.

The District Court on remand set a sentencing hearing ‘‘in ac-

cordance with section 95-2206.06 through 95-2206.11, R.C.M., as

amended” for June 14, 1978. At that hearing, the court denied a

motion of defendant to quash and ordered the presentence report

be filed. Neither party presented any witnesses or other evidence.

Thereafter the court set July 10, 1978 as the date for sentenc-

ing. On that date, the District Court handed counsel for defen-

dant and the State, a copy of its written findings, judggment and

order. After argument was presented, the District Court then

signed and filed its findings; judgment and order.

The District Court found and concluded that the aggravating

circumstances set forth in section 95-2206.8(7), R.C.M.1947, ex-

isted because the offense of aggravated kidnapgping had been

-38-

committed by defendant and it had resulted in the death of the

victim, Miss Peggy Harstad; that none of the mitigating cir-

cumstances listed in section 95-2206.9, were sufficiently substan-

tial to call for leniency in this case; and that the only mitigating

circumstance technically present was that the defendant had no

record history of prior criminal activity.

By reason of his findings and conclusions, the District Court

ordered that the defendant Dewey Eugene Coleman be hanged

between the hours of 6:00 a. m. and 6:00 p. m. on the 31st day

following the completion of the automatic review of his case by

this Court, said execution to be supervised by the sheriff of

Yellowstone County. The District Court further ordered that

defendant be sentenced to a term of 20 years for the crime of sex-

ual intercourse without consent, and that such sentence be served

consecutively to his sentence of 100 years for deliberate

homicide, which had previously been assessed against the defen-

dant and which was not disturbed on his appeal.

As a result of his trial in November 1975, defendant was then

sentenced by the District Court to 100 years on count I,

deliberate homicide; to death by hanging on count II, aggravated

kidnapping; and to 40 years on count III, sexual intercourse

without consent inflicting bodily injury. One of the questions

decided by this Court on the first Coleman appeal was that his

sentence of death by hanging was invalid under the statutes then

in effect.

At the time of defendant’s trial, the death penalty statute in

Montana for aggravated kidnapping was section 94-5-304,

R.C.M.1947. It read:

‘‘A court shall impose the sentence of death follow-

ing conviction of aggravated kidnapping if it finds

the victim is dead as the result of the criminal con-

duct.”

Defendant was sentenced tc death under this statute.

Section 94-5-304 which had been enacted in 1973 (Ch. 513,

Laws of Montana (1973)) and amended in 1974 (Ch. 126, Laws of

Montana (1974)) was repealed by the 1977 session of the State

Legislature (Ch. 338, Laws of Montana (1977)). In the same enact-

ment new death penalty statutes were codified in sections

95-2206.6 through 95-2206.15, R.C.M.1947, now sections

46-18-301 through 46-18-310 MCA.

In the first Coleman appeal, we held that because former sec-

tion 94-5-304, mandatorily imposed the death penalty, it was con-

stitutionally impermissible under United States Supreme Court

decisions in Woodson v. North Carolina (1976), 428 U.S. 280, 96

S.Ct. 2978, 49 L.Ed.2d 944; Coker uv. Georgia (1977), 433 U.S.

584, 97 S.Ct. 2861, 53 L.Ed.2d 982; and Roberts v. Louisiana

(1977), 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637. This Court

thereupon held that the death penalty assessed against defen-

dant on November 21, 1975, must be set aside and, for reasons

not important here, that the 40 year sentence on the count of sex-

ual intercourse without consent must also be set aside. We

remanded the case to District Court for resentencing on the

counts of aggravated kidnapping and sexual intercourse without

consent, without instructions to the District Court as to which

law was applicable with respect to the resentencing of the defen-

dant.

When the cause was received by the District Court on remand,

the District Court determined that it would apply the new senten-

cing statutes that included the death penalty. The District Court

then used the 1977 statute to assess the death penalty against

defendant.

Defendant raises 19 specifications of error in this appeal. We

will discuss these alleged errors within the broader context of the

issue to which they relate. We frame the issues presented in this

review in the following manner:

1. Did defendant’s conviction on the count of deliberate

homicide and the count of aggravated kidnapping constitute dou-

ble jeopardy?

2. Were the present Montana capital punishment provisions,

sections 95-2206.6 through 95-2206.15, R.C.M.1947, now sec-

tions 46-18-301 through 46-18-310 MCA applicable in resentenc-

ing defendant?

3. Do Montana’s capital punishment provisions violate con-

stitutional standards?

4. Was defendant denied a fair opportunity to present argu-

ment and evidence with respect to sentencing?

5. Is defendant’s sentence of death disproportionate to his

crime with respect to sentences imposed in similar cases, or was

it the product of passion, prejudice or other arbitrary factors?

6. If the capital punishment provisions are valid and ap-

plicable, must this Court, in its review of the sentence, reconsider

issues raised and disposed of in defendant’s first appeal?

[2-4] We first address the issue raised by defendant that his

conviction of aggravated kidnapping, in light of his conviction of

deliberate homicide based upon the felony of kidnapping, has

placed him twice in jeopardy. Defendant contends the ag-

gravated kidnapping conviction is barred by the Fifth Amend-

ment to the United States Constitution and the 1972 Montana

Constitution, Art. II, § 25. Defendant also argues this conviction

is barred statutorily by section 95-1711, R.C.M.1947, now section

46-11-501, -502 MCA.

The Fifth Amendment to the Federal Constitution states no

person shall ‘‘be subject for the same offense to be twice put in

jeopardy . . .’’ The 1972 Montana Constitution Art. II, § 25,

states ‘‘No person shall be again put in jeopardy for the same of-

fense.’’ Defendant has been subjected to but one trial, however,

these double jeopardy provisions also protect offenders from

multiple punishment for the same offense. Ex Parte Lange (1873),

85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872; Matter of Ratzlaff

(1977), Mont., 564 P.2d 1312, 1316, 34 St. Rep. 470.

Defendant has contended his conviction on the count of

deliberate homicide is upon the same set of facts as his conviction

on the count of aggravated kidnapping, thus he has been exposed

to double jeopardy. We determine the prohibition against double

jeopardy has not been violated in this case.

Count I of the information charging defendant reads as follows:

-4]-

‘Count I: That the defendant purposely and know-

ingly caused. the death of another human being, to-

wit: Peggy Lee Harstad, while engaged in the com-

mission of the following felonies:

‘Kidnapping and Sexual Intercourse Without Con-

sent, involving the use of physical force and violence

against the said Peggy Lee Harstad.”’

Count II of the information reads as follows:

“Count II: That the defendant knowingly and pur-

posely and without lawful authority restrained

another person, to-wit: Peggy Lee Harstad, by

holding her in a place of isolation and by using

physical force to facilitate the Commission of a

felony, to-wit: Sexual Intercourse Without Consent

and for the purpose of inflicting bodily injury on and

terrorizing the said victim, Peggy Lee Harstad,

resulting in the death of Peggy Lee Harstad.”’

The established test for determining whether two offenses are

sufficiently distinguishable to permit the imposition of

cumulative punishment was stated in Blockburger v. United

States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306:

‘The applicable rule is that, where the same act or

transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to deter-

mine whether there are two offenses or only one is

whether each provision requires proof of an addi-

tional fact which the other does not . . .” (Em-

phasis added.)

As the United States Supreme Court noted in Brown v. Ohio

(1977), 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187, this test

emphasizes the elements of the two crimes. Rejecting a defen-

dant’s claim of double jeopardy, this Court stated in State v.

Davis (1978), Mont., 577 P.2d 375, 35 St.Rep. 381, *‘ ‘A single act

may be an offense against two statutes; and if each statute re-

quires proof of an additional fact which the other does not, an ac-

quittal or conviction under either statute does not exempt the

-42-

defendant from prosecution and punishment under the other.’ ”’

577 P.2d at 377. (Quoting from Morey v. Commonwealth (1871),

108 Mass. 433). Thus, our inquiry in the present appeal is

directed to the elements of proof necessary to establish each

count of the information.

To establish count I of the information the prosecution had to

prove the defendant (1) purposely and knowingly (2) caused the

death of another human being (3) while committing the felonies of

kidnapping and (4) sexual intercourse without consent. To

establish count II of the information the prosecution had to prove

the defendant (1) knowingly and purposely (2) without lawful

authority (3) restrained another person by holding her in a place

of isolation and by using physical force (4) to facilitate the com-

mission of sexual intercourse without consent and (5) for the pur-

pose of inflicting bodily injury on and terrorizing the victim.

Both counts required proof of a ‘purposely and knowingly”’ men-

tal state, proof of kidnapping and proof of sexual intercourse

without consent. However, count I, in addition, required proof of

the death of the victim which count II did not; and count II re-

quired proof of a purpose to inflict bodily injury and terrorize the

victim which count I did not. The offenses of deliberate homicide

(former section 94-5-102, R.C.M.1947, now section 45-5-102

MCA) and aggravated kidnapping (former section 94-5-302,

R.C.M.1947, now section 45-5-302 MCA) are separate and

distinct offenses in our codes and each requires proof of elements

the other does not. Therefore, defendant may be convicted and

sentenced for both count I and count II of the information

without violating the double jeopardy prohibition even though

the counts arose from the same conduct or episode. Brown, 432

U.S. at 166, 97 S.Ct. 2221; United States v. Eagle (8th Cir. 1978),

586 F.2d 1193, 1196 (defendant’s conviction of assault with a

deadly weapon and assault resulting in serious bodily injury each

arising from same shooting incident affirmed); Kowalski v. Par-

ratt (8th Cir. 1976), 533 F.2d 1071, 1073-74 cert. den. 429 U.S.

844, 97 S.Ct. 125, 50 L.Ed.2d 115 (conviction of robbery and us-

ing a firearm in commission of same robbery affirmed); Smith v.

Gaffney (10th Cir. 1972), 462 F.2d 663, 665-666 (conviction of

burglary and larceny based upon same transaction affirmed);

Davis, 577 P.2d at 377.

Arguments made by defendant in this appeal were also made

by the defendant in Williams v. Oklahoma (1959), 358 U.S. 576,

79 S.Ct. 421, 3 L.Ed.2d 516. There the defendant had kidnapped

and murdered his victim. He pled guilty to the murder charge and

received a life sentence. Defendant was then charged with kid-

napping, pled guilty and received the death penalty after the

sentencing court considered the homicide as an aggravating cir-

cumstance. Defendant challenged the death sentence on the

grounds it constituted a second punishment for the same crime.

The United States Supreme Court rejected defendant's claims

stating Oklahoma law clearly made kidnapping and homicide

separate and distinct offenses; therefore there was no merit in the

argument that the “‘lesser crime’’ of kidnapping “‘merged”’ into

the ‘‘greater crime’ of murder so as to bar any sentence, or at

least a greater sentence than was imposed for the homicide. 358

U.S. at 587, 79 S.Ct. 421. The Court also stated:

[T]he Due Process Clause of the Fourteenth

Amendment does not, nor does anything in the Con-

stitution, require a State to fix or impose any par-

ticular penalty for any crime it may define or to im-

pose the same or ‘proportionate’ sentences for

separate and independent crimes. Therefore we can-

not say that the sentence to death for the kidnapp-

ing, which was within the range of punishments

authorized for that crime by the law of the State,

denied to petitioner due process of law or any other

constitutional right."’ 358 U.S. at 586, 79 S.Ct. at

427. (Emphasis added.)

We conclude defendant’s conviction of both count I, deliberate

homicide, and count II, aggravated kidnapping, did not tran-

sgress any constitutional inhibitions, federal or state, against

double jeopardy.

Defendant has also argued his aggravated kidnapping convic-

tion is barred by the operation of section 95-1711(2), R.C.M.1947,

now section 46-11-502 MCA. Defendant argues the aggravated

kidnapping count is an “included offense” in the count of

deliberate homicide and he therefore may not be, under section

-44-

95-1711(2)(a), now section 46-11-502(1) MCA, convicted of that

count. Section 95-1711(1)(b), R.C.M.1947, now section 46-11-501

(2)(a) MCA, defines ‘‘included offense’ in pertinent part as an of-

fense ‘‘established by proof of the same or less than all the facts

required to establish the commission of the offense charged.”’ An

accused many not be convicted of more than one offense it one of-

fense is included in the other. Section 95-1711(2)(a), R.C.M.1947,

now section 46-11-502(1) MCA. However, as the discussion above

makes clear, to establish deliberate homicide and to establish ag-

gravated kidnapping require proof of distinct and separate

elements. In such a case the statutory provisions recited do not

bar the conviction for aggravated kidnapping, State v. Perry

(1979), Mont. 590 P.2d 1129, 1131, 36 St.Rep. 291, and defen-

dant’s double jeopardy claim fails on this point as well.

[5-12] The next issue with which we are confronted is whether

ex post facto provisions in the federal and state constitutions or

the statutorily codified rule of construction against retroactivity

(section 12-201), R.C.M.1947, now section 1-2-109 MCA) prevent

application of the sentencing statutes enacted in 1977 to this

defendant. As was indicated in the recitation of facts, defendant

committed the crime with which he was charged in 1974,

however, upon resentencing after our remand, the District Court"

applied the statutes enacted in 1977. Defendant argues this

violates the constitutional prohibition against ex post facto laws

as well as the statutory provision against retroactivity. Defen-

dant further argues he is entitled to be sentenced under the law in

effect at the time the crime was committed. Because this Court

has declared the provision mandating the death penalty which

was effective at that time to be unconstitutional, defendant con-

tends the maximum sentence he may receive is 100 years in

prison.

In considering this issue, it must be initially determined what

would cause the application of the 1977 statutes to an act com-

mitted in 1974 to run afoul of the ex post facto prohibition and

the statutory rule of construction against retroactivity.

Therefore what makes a statute ex post facto or “retroactive”

becomes the keystone consideration. Simply because a statute

operates on events antecedent to its effective date does not make

-45-

the statute ex post facto, Calder v. Bull (1798), 3 U.S. (3 Dall.)

386, 390, 1 L.Ed. 648 nor does such operation make a law pro-

hibitively retroactive. Cox v. Hart (1922), 260 U.S. 427 , 435, 43

S.Ct. 154, 67 L.Ed. 332. Thus the effect the statute will have

must determine its validity with respect to ex post facto or

retroactive inhibitions.

The constitutional prohibition against ex post facto laws has

its roots in the desire on the part of the framers of the United

States Constitution to prevent the sovereign authority from mak-

ing acts criminal which were innocent when committed as had

been done by the British crown. Calder, 3 U.S. at 388-389. The

Court in Calder noted the advocates of such laws were stimulated

by ambition, or personal resentment and vindictive malice and

“to prevent such, and similar acts of violence and _in-

justice - . . the federal and state legislatures were pro-

hibited from passing any . . . ex post facto law.”’ Calder.

The constitutional inhibition of ex post facto laws was thus in-

tended ‘‘to secure substantial personal rights against arbitrary

and oppressive legislative action.” Malloy v. South Carolina

(1915), 237 U.S. 180, 183, 35 S.Ct. 507, 59 L.Ed. 905; Beazell v.

Ohio (1925), 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216.

Summarizing more than a century of definitions Justice Stone

writing for a unanimous court in Beazell stated that:

‘‘[A]ny statute which punishes as a crime an act

previously committed, which was innocent when

done, which makes more burdensome the punish-

ment for a crime, after its commission, or which

deprives one charged with crime of any defense

available according to law at the time when the act

was committed, is prohibited as ex post facto. The

constitutional prohibition and the judicial inter-

pretation of it rest upon the notion that laws,

whatever their form, which purport to make inno-

cent acts criminal after the event, or to aggravate an

offense, are harsh and oppressive, and that the

criminal quality attributable to an act, either by the

legal definition of the offense or by the nature or

-46-

amount of punishment imposed for its commission,

should not be altered by legislative enactment, after

the fact, to the disadvantage of the accused.”’ 269

U.S. at 169-170, 46 S.Ct. at 68-69. (Emphasis ad-

ded.)

Clearly the important question in determining whether a subse-

quent statute and its application transgress this inhibition is

whether some substantial right of the accused is materially af-

fected. However, the Supreme Court has iterated the proposition

that changes in procedure not affecting materially the rights of a

defendant do not come within the constitutional prohibition.

For example, the State of Utah altered its rule governing the

qualifications of witnesses, allowing felons to testify, after the ac-

cused committed the act but before his trial. The Court in Hopt v. °

Territory of Utah (1884), 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262,

dismissed the ex post facto claim based on this charge even

though the change had deterimental effect stating:

‘|, [Al]lterations which do not increase the

punishment, nor change the ingredients of the of-

fense or the ultimate facts necessary to establish

guilt, but—leaving untouched the nature of the

crime and the amount or degree of proof essential to

conviction—only removes restrictions upon the

competency of certain classes of persons as

witnesses, relate to modes of procedures only, in

which no one can be said to have a vested right, and

which the state, upon grounds of public policy, may

regulate at pleasure.’’ 110 U.S. at 590, 4 S.Ct. at

210. (Emphasis added.)

Although the Court in Thompson v. State of Utah (1898), 170

U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061, found the change from re-

quiring a panel of 12 jurors to requiring a panel of 8, to have

substantially affected the accused’s rights and therefore be ex

post facto, it stated no one had a vested right in mere modes of

procedure. 170 U.S. at 352, 18 S.Ct. 620. Furthermore, ‘‘statutes

regulating procedure, if they leave untouched all the substantial

-47-

protections with which existing law surrounds the person accus-

ed of crime, are not within the constitutional inhibition of ex post

facto laws.’ 170 U.S. at 352, 18 S.Ct. at 623. In Dobbert v.

Florida (1977), 432 U.S. 282, 92 S.Ct. 2290, 53 L.Ed.2d 344, the

' Supreme Court held that the trial and sentencing of the accused

under statutes not in effect at the time of his crime did not violate

ex post facto prohibitions. The Court ruled the changes were

merely procedural, were less cnerous than the law that had been

previously declared unconstitutional, and did not change the

quantum of punishment attached to the crime. 432 U.S. at 292,

294, 92 S.Ct. 2290.

The inhibition upon ex post facto laws then, does not give an

accused a right to be tried, in all respects, by the law in force

when the crime charged was committed providing he has not

been deprived of any substantial right or immunity he possessed

at the time of the commission of the offense charged. Dobbert,

432 U.S. at 293-294, 92 S.Ct. 2290; Malloy, 237 U.S. at 183, 35

S.Ct. 507; Gibson v. Mississippi (1896), 162 U.S. 565, 590, 16

S.Ct. 904, 40 L.Ed. 1075. However, the Court has made clear a

change which is labeled procedural will not except it from ex post

facto prohibitions if it invades or modifies rights of a party

charged with a crime. Kring v. Missouri (1883), 107 U.S. 221, 232,

2 S.Ct. 443, 27 L.Ed. 506. (The change in Kring made evidence

that was conclusive of innocence not a factor at all, and in effect

increased the punishment for the offense.) Just what changes in

““procedure’”’ will be held to be of sufficient moment:

, to transgress the constitutional prohibi-

tion cannot be embraced within a formula or stated

in a general proposition. The distinction is one of

degree. But the constitutional provision was intend-

ed to secure substantial personal rights against ar-

bitrary and oppressive legislation . . .and not to

limit the legislative control of remedies and modes

of procedure which do not effect matters of

substance.”’ (Citations omitted.) Beazell, 269 U.S. at

171, 46 S.Ct. at 69.

-48-

The Supreme Court has also stated a statute which, when view-

ed in the light of reason and common sense, mitigates the rigor of

the law in force at the time a crime was committed cannot be

regarded as ex post facto with reference to that crime. Rooney v.

North Dakota (1905), 196 U.S. 319, 325, 25 S.Ct. 264, 49 L.Ed.

494; Calder, 3 U.S. at 390.

Section 12-201, R.C.M.1947, now section 1-2-109 MCA, states

that no law is “retroactive’’ unless expressly so declared.

However, this is but a rule of construction and what is ‘‘retroac-

tive’ so as to warrant application of the rule has been defined

judicially by this and other courts. A statute is not ‘‘retroactive”’

merely because it draws upon antecedent facts for its operations.

Cox v. Hart, 260 U.S. at 157, 43 S.Ct. 154. A statute is “‘retroac-

tive”’ in a legal sense ‘‘which takes away or impairs vested rights

acquired under existing laws or creates a new obligation, imposes

a new duty or attaches a new disability in respect to transactions

already past.’’ City of Harlem v. State Highway Commission

(1967), 149 Mont. 281, 425 P.2d 718, 720; Dunham v. Southside

National Bank (1976), 169 Mont. 466, 548 P.2d 1383, 1386; Butte

& Superior Mining Co. v. McIntyre (1924), 71 Mont. 254, 229 P.

730; Sturges v. Carter (1885), 114 U.S. 511, 5 S.Ct. 1014, 29 L.Ed.

240.

In 1973, the legislature enacted section 94-5-303, R.C.M.1947,

now section 45-5-303 MCA, and section 94-5-304, R.C.M.1947.

Ch. 513, Laws of Montana (1973). The former section set forth the

elements of the crime of aggravated kidnapping and stated ‘‘a

person convicted of aggravated kidnapping shall be punished by

death as provided in section 94-5-304 or [imprisonment] . . .”

(Emphasis added.) Section 94-5-304, as it then read, imposed th

death penalty if the victim dies as a result of the criminal conduct

“unless there are mitigating circumstances.’’ The quoted

language was deleted by the 1974 amendment to section

94-5-304, making the death penalty mandatory in those cir-

cumstances specified. Ch. 126, Laws of Montana (1974). Section

94-5-304 was repealed in 1977 by Ch. 338, Laws of Montana

(1977) which enacted the current scheme for imposition of the

death penalty; that is, providing for a separate sentencing hear-

ing; consideration of mitigating or aggravating circumstances,

written findings. and conclusions, and expedited review of the

sentence. It is important to note that the original enactment of

section 94-5-303(2), now section 45-5-303(2) MCA, effective when

the crime involved here was committed, was never altered by the

amendments and has always provided the crime of aggravated

kidnapping shall be punished by death or imprisonment. The

amendments have related only to the procedure the court must

follow in imposing the sentence.

The 1974 amendment, effective when the crime was committed,

mandated a death penalty if the victim dies as a result of the

criminal conduct. The 1977 amendments ameliorated this, allow-

ing an exercise of judicial discretion within certain limits and re-

quiring consideration of mitigating circumstances. Clearly, the

latter amendments lessened the rigor of the 1974 amendments

and are less onerous than the 1974 law. As such they, on their

face, cannot be considered ex post facto. Calver v. Bull, 3 U.S. at

390; Rooney v. North Dakota, 196 U.S. at 325, 25 S.Ct. 264; Dob-

bert vu. Florida, 432 U.S. at 292-294, 92 S.Ct. 2290. Because the

accused has no vested right in modes of procedure not materially

affecting his rights, and because the changes in the law on their

face do not impose new obligations or duties or disabilities in

respect to transactions already past, the changes are also not on

their face retroactive. City of Harlem, 425 P.2d at 720; McIntyre,

229 P. at 733. In fact, had there been no declaration of un-

constitutionality in the first Coleman decision, the District Court

may well have been obligated to apply the 1977 statutes as their

changes benefited the accused. Marks v. United States (1977),

430 U.S. 188, 197, 97 S.Ct. 990, 51 L.Ed.2d 260.

Because this Court did declare the 1974 amendment mandating

the death penalty unconstitutional, the ex post facto and

“retroactive” arguments are raised by defendant. Thus, the

crucial question becomes what is the effect of that declaration. It

must be emphasized the decision in Coleman, declared un-

constitutional only section 94-5-304 as amended in 1974. The

preceding section 94-5-303, enumerating the elements of the

crime and the potential punishment was not addressed by the

decision and has remained viable since its enactment in 1973.

:

i

|

;

€

There exists a rule of statutory construction that a statute

declared unconstitutional is considered void ab initio and has no

effect. This proposition is best typified by the following state-

ment of Justice Field in Norton v. Shelby (1886), 118 U.S. 425,

442, 6 S.Ct. 1121, 30 L.Ed. 178: ‘‘An unconstitutional act is not a

law; it confers no rights; it imposes no duties; it affords no protec-

tion; it creates no office; it is, in legal contemplation, as ia-

operative as though it had never been passed.’* The aim of such a

rule of construction is to hold the exercise of legislative power in

excess of constitutional limits to be of no effect. Field, The Effect

of an Unconstitutional Statute (1935), pp. 8-12. The author of the

cited treatise, however, indicated the absoluteness of such a doc-

trine was breaking down and applauded such development. Field,

p. 12. Indeed, the United States Supreme Court, which first an-

nounced the doctrine, has indicated the rule is not absolute and

has further indicated its recession from that rule.

In Chicot County Drainage District v. Baxter State Bank

(1940), 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329, where the

validity of a judicial decree based upon a statute subsequently

declared unconstitutional was questionea, the Court indicated

the broad statement that appeared in Norton must be taken with

qualifications and in a later decision, the Supreme Court stated:

“ . . the effect of a given constitutional ruling

on prior conduct ‘is subject to no set ‘‘principle of

absolute retroactive invalidity’’ but depends upon a

consideration of ‘‘particular relations . . and par-

ticular conduct . . . of rights claimed to have

become vested, of status, of prior determinations

deemed to have finality;’’ and “‘of public policy in

the light of the nature both of the statute and its

previous application.” ’ . However appealing

the logic of Norton may have been in the abstract,

its abandonment reflected our recognition that

statutory or even judge-made rules of law are hard

facts on which people must rely in making decisions

and shaping their conduct.’’ Lemon v. Kurtzman

(1973), 411 U.S. 192, 198-199, 93 S.Ct. 1463, 36

-51-

L.Ed2d 151. (Emphasis added.) (quoting from

Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct.

1731, 14 L.Ed.2d 601 and Chicot County Drainage

Dist., supra.)

Both Chicot County and Lemon are civil cases but the case which

announced the rule, Norton v. Shelby was also a civil action. This

Court in Ex Parte Anderson (1951), 125 Mont. 331, 238 P.2d 910,

913, stated ‘‘an unconstitutional law is void, and is as no law. An

offense created by it is not a crime.’’ The Court then invalidated

an entire criminal statute because it had been preempted by

federal action in the same area. In the first Coleman appeal, the

statute declared unconstitutional did not define the crime, rather

related only to the procedure of imposing sentence. Our action in

declaring the prior statute unconstitutional did not affect the

substantial elements of crime. Moreover, the statement relied

upon by the Anderson Court, found in Ex Parte Siebold (1879),

100 U.S. 371, 376, 25 L.Ed. 717, was dicta in Siebold as the

Supreme Court did not find the statute there in question to be un-

constitutional.

There are ‘“‘hard facts’’ present in this appeal which this Court

must consider in making its determination. A fundamental con-

cept of our constitutional liberty is that the ex post facto clause is

based upon the principle that persons have the right to fair warn-

ing of conduct which will give rise to criminal penalties. Marks v.

United States, 430 U.S. at 191, 97 S.Ct. 990. The substantive por-

tion of the aggravated kidnapping statute, enumerating the

elements of the crime and declaring the quantum of punishment,

has not been altered since its enactment in 1973. The changes

made by the 1977 statutes from the 1974 law ameliorated a man-

datory death penalty to one imposed only after certain procedural

steps were taken. Those procedural steps were followed in the

resentencing of Dewey Coleman. At the time the crime was com-

mitted the statutes were clear that the penalty of death was a

very probable consequence for the commission of the crime.

The defendant has cited this Court to cases from this and other

jurisdictions and urged us to follow their precedent and hold the

statutes in question here may not be applied to defendant.

However, those cases can be distinguished. In State v. Rodgers

-52-

(1978), 270 S.C. 285, 242 S.E.2d 215, the defendants were tried,

convicted and sentenced under death penalty statutes enacted in

1974. Those statutes were later ruled unconstitutional. The State

then petitioned to have the defendants resentenced under

statutes promulgated in 1977 which were very likely constitu-

tional. Those statutes provided for procedural safeguards at all

phases of the criminal adjudication process from pretrial to

sentencing. The South Carolina Supreme Court denied the

State’s petition because the defendants therein did not receive all

the procedural safeguards mandated by the 1977 enactments.

242 S.E.2d at 218. In the present cause the safeguards enacted in

1977 related only to the sentencing phase of the criminal ad-

judication process and the defendant here did receive those pro-

tections. In People v. Teron (1979), 23 Cal.3d 103, 151 Cal. Rptr.

633, 588 P.2d 773, the California Supreme Court refused to apply

sentencing provisions enacted in 1977 to a crime committed in

1975. The statutes in effect in 1975 had been declared un-

constitutional. 151 Cal.Rptr. at 640, 588 P.2d at 780. Factually

the Teron case is distinguishable from the one here, because the

declaration of unconstitutionality occured in 1976 while defen-

dant was not charged with the crime until April 1977 and the

1977 statutes did not become effective until August 1977.

Therefore, when the defendant was charged with his crime there

existed in fact no constitutional death penalty statutes in Califor-

nia. 151 Cal. Rptr. at 640, 588 P.2d at 780. Here Coleman commit-

ted the crime in 1974, was tried, convicted and sentenced in 1975,

the legislature repealed the 1974 act in 1977, and this Court

declared the 1974 law unconstitutional in 1978. Unlike Teron,

Coleman was tried, and convicted under constitutional statutes,

but sentenced under a statute later declared unconstitutional.

State v. Lindquist (1979), 99 Idaho 766, 589, P.2d 101, is the

strongest authority for Coleman’s “‘retroactive’’ argument. There

the defendant committed his crime in 1975, was tried, convicted

and sentenced in 1976. The laws were amended in 1977 and when

the Idaho court considered the appeal, after declaring the laws in

effect in 1975 and 1976 to be unconstitutional, it was faced with

the question whether the 1977 laws could be applied on resentenc-

ing. The Court held they could not, on the basis they were retroac-

tive. 589 P.2d at 103. However, the majority opinion devotes no

eae Sheed inte cetera bse anes Eke 6

-53-

discussion to what constitutes a retroactive law, assuming ap-

parently that because the application of the 1977 laws would

relate to events antecedent to their effective date, they are

retroactive. 589 P.2d at 103, 104. Clearly such a discussion is

necessary for, as the above disclosure indicates, not all statutes

relating to events antecedent to the effective date of the statutes

are retroactive. The dissent of Justice Donaldson in Lindquist

discusses this point. 589 P.2d at 112, 113. Thus the Lindquist

opinion loses some of its authoritative impact for this lack.

Finally, in State v. Gone (1978), Mont., 587 P.2d 1291, 35

St.Rep. 1540, this Court held that, based upon the facts there pre-

sent, the application of laws enacted after the crime was commit-

ted would violate ex post facto prohibitions. 587 P.2d at 1297. In

Gone, a later statute permitted the sentencing court to impose a

sentence without the possibility of parole, a discretion not

granted under laws in effect when the crime was committed.

Clearly this later enactment allowed the punishment for the of-

fense to be aggravated beyond that available when the offense

was committed and was obviously ex post facto. However, here

the later enactments do not aggravate the punishment for the

crime, but only change the procedure for imposing the sentence.

The punishment for the crime according to section 94-5-303(2),

R.C.M.1947, now section 45-5-303(2) MCA, has always been

death or imprisonment.

The changes made by the 1977 enactments affected only the

manner in which the penalty indicated by statute was to be deter-

mined and imposed. They did not deprive Coleman of any defense

previously available nor affect the criminal quality of the act

charged. Nor did they change the legal definition of the offense or

the punishment to be meted out. They did not make an act

criminal which was innocent when done; they did not increase the

penalty for the crime. The quantum and kird of proof required to

establish guilt, and all questions which may be considered by the

court and jury in determining guilt or innocence, remained the

same. No substantial right or immunity possessed by Coleman at

the time of the commission of the offense was taken away by the

1977 enactments. Indeed they eased the rigor of the law as it ex-

isted at the time the offense was committed.

Te ee ee Oe ee Mm et em MST

ee

so far as mere modes of procedure are con-

cerned, a party has no more right, in a criminal than

a civil action, to insist that his case shall be disposed

of under the law in force when the act to be in-

vestigated is charged to have taken place. Remedies

must always be under the control of the legislature,

and it would create endless confusion in legal pro-

ceedings if every case was to be conducted only in

accordance with the rules of practice in existence

when its facts arose. The legislature may prescribe

altogether different modes of procedure in its discre-

tion, though it cannot lawfully . . . dispense

with any of those substantial protections with

which the existing law surrounds the person accus-

ed of the crime. ’’’ Thompson v. State of Utah, 170

U.S. at 351, 352, 18 S.Ct. at 623 (quoting with ap-

proval from Cooley on Constitutional Limitations);

re a v. Ward (1958), 50 Cal.2d 702, 328 P.2d 777,

The statutes in question also did not impair vested rights, or

create new duties, obligations, or disabilities with respect to tran-

sactions already past.

Only if we were to adhere rigidly to the rule of construction an-

nounced in Norton v. Shelby, supra, that a statute declared un-

constitutional is treated as never having had an operational ef-

fect, could the 1977 statutes be read to interfere with the

substantial rights of Dewey Coleman. Yet the absolute applica-

tion of this rule has been abandoned by the Court which pro-

mulgated it, the United States Supreme Court. To follow the rule

here, as this Court must in order to find an ex post facto violation

or “retroactive’’ effect, would be impliedly stating Dewey Col-

eman at the time he committed his crime had the omniscience

that four years hence the statute prescribing the procedure for

imposing the penalty for the crime would be declared unconstitu-

tional and that at the time the crime was committed no valid pro-

cedure existed. Clearly such a conclusion stretches reason to the

breaking point.

eso tater ceare teat

We therefore hold that the District Court properly applied the

1977 statutes relating to the imposition of the death penalty to

this defendant.

[13-16] Having decided no ex post facto violations nor tran-

sgressions of the rule against retroactive statutes have occurred,

and the 1977 statutes are applicable here, we reach defendant’s

arguments that these statutes are unconstitutional. At the

outset, we note the Supreme Court has held the punishment of

death does not invariably violate the constitutional prohibition

against cruel and unusual punishment. Gregg v. Georgia (1976),

428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859. Furthermore,

the Gregg court indicated that in the abstract, a penalty is not ex-

cessive if it does not involve the wanton and unnecessary inflic-

tion of pain and is not grossly out of proportion to the severity of

the crime. 428 U.S. at 173, 96 S.Ct. 2909. Finally, the court stated

it must presume the validity of a punishment selected by a

democratically elected legislature. 428 U.S. at 175, 96 S.Ct. 2909.

As we stated in State v. McKenzie (1978), Mont., 581 P.2d

1205, 1228, 35 St.Rep. 759, the United States Supreme Court in

its decisions of Gregg; Proffitt v. Florida (1976), 428 U.S. 242, 96

S.Ct. 2960, 49 L.Ed.2d 913; and Jurek v. Texas (1976), 428 U.S.

262, 96 S.Ct. 2950, 49 L.Ed.2d 929, seems to have established

three general criteria which are requisite to a valid scheme for im-

posing the death penalty. First, there must be at least one

statutory aggravating circumstance before a death sentence may

be considered. Second, the defendant must be afforded the oppor-

tunity to bring before the sentencing body at a separate sentenc-

ing hearing any mitigating circumstances relating to the in-

dividual defendant. Third, there must be available prompt

judicial review of the sentencing decision by a court of statewide

jurisdiction, providing a means to promote the even-handed, ra-

tional and consistent imposition of death sentences under the

law. A refinement of the second criterion was added by the deci-

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

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

from considering any aspect of the defendant's record or

character as a mitigating factor. 438 U.S. at 589, 98 S:Ct. at

-56-

Bes _ eee at ne The death penalty must also not be im-

hah Ae ; ; mi aR

tors. Coleman, 679 P.2d at T4142 nn mitigating fac:

Sections 95-2206.6 and 95-2206.7, R.C.M. 1947, now sections

46-18-301 and -302 MCA provide for a separate sentencing hear-

ing in death penalty cases at which the sentencing court may con-

sider any evidence relevant td the sentence and at which the

owe may argue against the penalty. Sections 95-2206.8

ough 2206.10, R.C.M.1947, now sections 46-18-303 through

-305 MCA enumerate aggravating and mitigating factors to be

considered and direct the sentencing court to consider one

against the other. Section 95-2206.11, R.C.M.1947, now section

46-18-306 MCA provides for written findings supporting the

determination of the court in cases where a death penalty is im-

posed. Sections 95-2206.12 through -2206.15, R.C.M.1947. now

sections 46-18-307 through -310 MCA provide for an expedited

review of the death penalty sentence and set forth standards b

ee er Court must review the sentence. ij

efendant argues sections 95-2206.8-2206. -

R.C.M.1947, now sections 46-18-303, -304, -305 cA. do = fh

for the proper consideration of mitigating circumstances and in

effect impose a mandatory death penalty should one of the

statutory aggravating circumstances be found. Defendant’s con-

ception of the operation of these provisions is much too restricted

and we do not agree that they in effect mandate a death nalt

whenever an aggravating circumstance is found. vind

; Section 95-2206.10, R.C.M.1947, now section 46-18-305 MCA

instructs the sentencing court to take into account the a

oe and mitigating circumstances enumerated in pass Mid

pst ay and -2206.9 and to impose a sentence of death ‘“‘if it

mie e or more of the aggravating circumstances and finds

nat there are no mitigating circumstances sufficiently substan-

tial to call for leniency.”’ (Emphasis added.) é

. bes United States Supreme Court has held the Eighth and

ourteenth Amendments require consideration of the character

and record of the individual offender and the circumstances of th

particular offense in a determination whether to impose the death

penalty. Woodson v. North Caroline (1976), 428 U.S. at 303-305

en ne a eee Le nee

ah i ea Aor

ee eS een Eee

96 S.Ct. 2978. In Jurek, the Court had before it a statutory

scheme that explicitly mentioned only aggravating cir-

cumstances, yet the Court found the scheme constitutional in

light of the Texas Appeals Court’s construction of the scheme re-

quring consideration of mitigating factors. 428 U.S. at 272-273,

96 S.Ct. 2978. Clearly Montana’s statutes go farther than those

approved in Jurek by explicitly requiring consideration of

mitigating circumstances, thus making subjective the sentencing

determination as required by Woodson. We do not read sections

95-2206.8 through 95-2206.10, R.C.M.1947, now sections

46-18-303 through 46-18-305 MCA as mandating the death penal-

ty upon the finding of an aggravating circumstance, but rather as

requiring consideration of whatever mitigating circumstances ex-

ist to determine if they outweigh the aggravating circumstances

found to be present.

Defendant argues that Montana’s death penalty statutes

would be subject to reversal by the U.S. Supreme Court because

of that court’s decision in Lockett v. Ohio, supra, and its vacation

and remand in light of Lockett in Jordan v. Arizona (1978), 438

U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157. An examination of

these cases leads us to the opposite conclusion. Basically Lockett

held a sentencing entity should not be precluded from consider-

ing any aspect of a defendant’s character or record as a

mitigating factor. The Ohio statutes enumerated three

mitigating factors and required their consideration in language

identical to Montana's statute. See Jordan v. Arizona (1976), 114

Ariz. 452, 561 P.2d 1224. However, the Arizona enumeration, like

the Ohio enumeration is on its face exclusive, thus warranting the

vacation of the death penalty and remand in light of Lockett.

Montana’s statute does not suffer from this defect. Although it

enumerates mitigating factors, section 95-2206.9(1) through (7),

R.C.M.1947, now section 46-18-304(1) through (7) MCA, it also

clearly indicates the sentencing body should consider any other

fact existing in mitigation of the penalty. Section 95-2206.9(8),

R.C.M.1947, now section 46-18-304(8) MCA. This inclusive factor

was not present in either the Ohio or Arizona scheme.

Defendant also contends because he received the death penalty

for aggravated kidnapping but only a life sentence for deliberate

-58-

homicide, the death penalty imposed constitutes the cruel and

unusual punishment prohibited by the Eighth Amendment. We

do not agree. As was made clear in Williams there is no constitu-

tional requirement for the same or proportionate sentences when

the crimes are separate and independent. 358 U.S. at 586, 79

S.Ct. 421. We have indicated above the crimes of deliberate

homicide and aggravated kidnapping are separate and indepen-

dent crimes and defendant’s conviction of each violated no double

jeopardy protections. Furthermore, the Supreme Court in Gregg,

made clear ‘‘when a life has been taken by an offender [it cannot

be said] the punishment [of death] is invariably disproportionate

to the crime.”’ 428 U.S. at 187, 96 S.Ct. at 2932. The decision of

the Court in Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861

53 L.Ed.2d 982, is relevant only to crimes for which the penalty

has been imposed which did not result in the loss of a life. Such is

not the case here.

We have considered defendant’s contentions with respect to

jury participation in the sentencing procedure and with respect

to statutory requirements of a finding of guilty beyond a

reasonable doubt in a case where death is a possible penalty and

determine these contentions do not alter our conclusion as to the

constitutionality of sections 95-2206.6 through 95-2206.15

R.C.M.1947, now sections 46-18-301 through -310 MCA.

This Court therefore concludes that Montana’s statutory

scheme for imposing the death penalty meets the standards

established by the Gregg, Jurek, Proffitt and Woodson decisions.

We further conclude the penalty is not cruel and unusual simply

because Montana's criminal statutes allow its imposition in this

case for the crime of aggravated kidnapping but not for the

crime, as committed here, of deliberate homicide.

[17] We turn now to defendant's contention that his counsel

was not permitted to present arguments against imposition of

the death penalty, contrary to the mandate of section 95-2206.7

now section 46-18-302 MCA, which states in pertinent part: ‘‘The

state and the defendant or his counsel shall be permitted to pre-

sent argument for or against sentence of death.” Defendant

maintains because it appears from the record that the District

Court had already determined the sentence prior to the July 10,

eet eee ee

1978 date set for pronouncing sentence, defendant was denied the

opportunity to present any arguments against the death penalty.

This contention is without merit. The District Court issued an

order dated June 2, 1978, clearly indicating a sentencing hearing

was to be held on June 14, 1978, in accordance with sections

95-2206.6 through 95-2206.11, R.C.M.1947, now sections

46-18-301 through -306 MCA. Those sections indicate what a

sentencing court must consider in imposing the death penalty, in-

cluding specifically that defendant or his counsel be allowed to

present argument against the death penalty.

Therefore by the June 2, 1978 order, the defendant and his

counsel were on notice of the proposed content of that hearing.

However, at the sentencing hearing, defendant did not present

any evidence of mitigating circumstances other than the

presentence report. No statement against the death penalty was

made other than to suggest certain procedures to test its con-

stitutional validity before it was in fact imposed. Defendant had

his opportunity to speak and did not avail himself of it. Finally,

the District Court order of July 31, 1978, denying defendant’s

petition for rehearing indicates the defendant also did not take

advantage of the District Court’s offer to accept proposed fin-

dings and conclusions from the parties with respect to the

sentence. Thus defendant and his counsel had at least two oppor-

tunities to submit argument to the Court regarding the death

penalty prior to the July 10, 1978 hearing, but did not do so.

[18-28] We have determined thus far that defendant’s convic-

tion for aggravated kidnapping violated no constitutional pro-

hibitions against double jeopardy, that the 1977 provisions for

imposition of the death penalty are applicable to this defendant

and furthermore are constitutional, and that this defendant was

given an opportunity to present arguments against the death

penalty. We come now to that part of this appeal which con-

stitutes a review of the sentence received by defendant. In con-

ducting this review, we will consider defendant’s arguments

regarding the proportionality of the penalty received in relation

to other factors.

The decision in Gregg compels this Court to determine

‘‘whether the punishment of death is disproportionate in relation

-60-

to the crime for which it is imposed.”’ Gregg, 428 U.S. at 187, 96

S.Ct. at 2931. In undertaking such a consideration, we are

directed by section 95-2206.15, R.C.M.1947, now section

46-18-310 MCA to consider whether the sentence was imposed as

a result of passion, prejudice or other arbitrary factors; whether

evidence supports the sentencing court’s findings regarding ag-

gravating and mitigating circumstances; and whether the

sentence is excessive or disproportionate to the penalty imposed

in similar cases, considering both the crime and defendant. We

make such an assessment based upon our independent review of

the trial record and transcript, and of the record and transcript of

the sentencing hearing. In so doing, we are not usurping the posi-

tion of the District Court as the primary sentencing entity in

Montana’s system of criminal jurisprudence (see section 95-2212,

R.C.M.1947, now section 46-18-103 MCA); rather we mean to in-

sure that a penalty as unique in its severity and as irrevocable as

the death penalty is not wantonly and freakishly, or arbitrarily

and capriciously imposed. See, Furman uv. Georgia (1972), 408

U.S. 238, 309-310, 92 S.Ct. 2726, 33 L.Ed.2d 346 (Stewart, J.,

concurring)’ Gregg, 428 U.S. at 188-189, 96 S.Ct. 2909.

Defendant has argued the sentence imposed here was a result

of passion, prejudice or other arbitrary factors. We have con-

sidered defendant’s arguments in this regard and determined

that two warrant discussion. Defendant argues the sentences

given to Robert Dennis Nank, defendant’s accomplice in this

crime, when compared to his own reflect the prejudice inherent in

the sentencing. Nank, a white man, pled guilty to the offenses of

deliberate homicide and solicitation to commit sexual intercourse

without consent and received 100 year and 40 year sentences

respectively. Defendant argues because he is black, his sentence

of death for crimes arising from the same incident as those of

Nank’s reflects obvious prejudice. We do not agree. Nank and

this defendant received similar sentences for similar crimes

namely, 100 years for deliberate homicide and 40 and 20 years

respectively for the charges stemming from the act of sexual in-

tercourse without consent. However, defendant was also found

guilty of aggravated kidnapping, a charge finally dropped

against Nank. It is for this crime the death penalty was imposed.

a

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-61-

Defendant is correct in his assertion the prosecution refused to

accept his guilty plea to the same charges to which Nank had pled

guilty. Defendant offered to plead guilty to the same charges to

which Nank had pled guilty, however he insisted such plea must

indicate he was innocent. The prosecution refused to accept this

offer anci we have previously held the refusal of a conditional of-

fer not to be erroneous. State v. Coleman, 579 P.2d at 744-745.

We do not find prejudice in defendant’s sentencing simply

because of the sentences his accomplice received.

Defendant has also argued his race was a factor operating to

his prejudice with respect to the imposition of the death penalty.

However, defendant points to no evidence of this prejudice other

than the fact of the sentence and the fact of his race. Defendant

has speculated as to various possible factors evidencing such pre-

judice, but speculation is not sufficient to establish this claim.

We have examined the sentence and determine it was not impos-

ed as a result of passion, prejudice or other arbitrary factors, or

because of his race.

Defendant contends there was evidence of mitigating factors

present and the District Court did not give proper consideration

to evidence when making its findings, conclusions, and when

rendering judgment. The District Court is required by section

95-2206.10, R.C.M.1947, now section 46-18-305 MCA to consider

and compare aggravating and mitigating circumstances and can

impose the death penalty only if there exists at least one ag-

gravating circumstance and no mitige*‘ng circumstances of suffi-

cient substantiality to call for leniency. Section 95-2206.10,

R.C.M.1947, now section 46-18-305 MCA. This Court is required

upon review of the sentence to determine whether there is

evidence to support the District Court’s findings and conclusions

regarding aggravating and mitigating circumstances. Defendant

admits the District Court properly found and concluded that the

aggravating factor found in section 95-2206.8(7), R.C.M.1947,

now section 46-18-303(7), MCA (death of the victim of ag-

gravated kidnapping) was present. What we now determine is

whether the District Court was correct in its conclusion that

there was no evidence of mitigating factors sufficiently substan-

tial to call for leniency.

Le

Defendant presented no evidence of mitigating circumstances

at the sentencing hearing, though his counsel acknowledged the

existence of the presentence investigation report. That report in-

dicated the defendant had no record of criminal activity and had

been an accepted member of the community where he lived prior

to July 4, 1974, the date of the commission of this crime. The

evidence in this case supporting the finding of the aggravating

circumstance established that the defendant had been a

deliberate, voluntary participant in the kidnapping and subse-

quent rape and murder of the victim. The evidence further

established that the death of the victim occurred after a sexual

assault, not in a moment of passion, but over a period of time

with the defendant first bludgeoning, then attempting to

strangle, then finally drowning the victim in an effort to effec-

tuate a deliberate decision to kill Peggy Harstad. Against the

record of this brutal crime, we cannot say that the defendant’s

lack of prior criminal activity of record is a factor sufficiently

substantial to call for leniency. Moreover, the District Court did

consider the mitigating circumstance of defendant’s lack of a

criminal record but concluded this circumstance was offset by

evidence that defendant had committed a burglary on the same

day the kidnap, rape and homicide occurred. Defendant has

argued accomplice Nank's testimony, the source of this evidence,

was uncorroborated as to this fact. However, Nank was suffi-

ciently corroborated on other aspects of his testimony and we

have so held. Coleman, 579 P.2d at 748. Where an accomplice has

been corroborated as to part of his testimony and that testimony

has been accepted as truthful, it is proper for the court to infer

the accomplice spoke the truth as to all his testimony. State v.

Phillips (1953), 127 Mont. 381, 264 P.2d 1009, 1016; Territory v.

Corbett (1877), 3 Mont. 50; Roberts v. State (Okl.Crim. 1977), 571

P.2d 129, cert. den. 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 316;

People v. Blau (1956), 140 Cal. App.2d 193, 294 P.2d 1047; State

v. Gross (1948), 31 Wash.2d 202, 196 P.2d 297; 23 C.J S. Criminal

Law, § 812(2). See also, State v. Jones (1933), 95 Mont. 317, 26

P.2d 341. We therefore determine the District Court was correct

in its conclusion.

one emer we eS

We now must compare this sentence to those imposed in

similar cases to determine whether it was excessive or dispropor-

tionate to those other sentences. Section 95-2206.15,

R.C.M.1947, now section 46-18-310 MCA. As this is the first time

this Court has reviewed a sentence for death under the new

statutory scheme, we are obligated to define the scope of our

review when considering similar cases.

It is clear from the decision in Gregg that the purpose of ap-

pellate review in a capital sentencing system is to serve as ‘“‘A

check against the random or arbitrary imposition of the death

penalty.”” 428 U.S. at 206, 96 S.Ct. at 2940. (Emphasis added.)

This review eliminates the possibility a death sentence will be im-

posed by the action of an ‘‘aberrant’’ sentencing entity. Gregg,

supra. The Georgia Supreme Court, construing language iden-

tical to that in our own statutes, has stated in considering similar

cases:

this court is not required to determine that

less than a death sentence was never imposed in a

case with some similar characteristics. On the con-

trary, we view it to be our duty under the similarity

standard to assure that no death sentence is affirm-

ed unless in similar cases throughout the state the

death penalty has been imposed generally and not

‘wantonly and freakishly’ imposed as stated by

Justice Stewart in his concurring opinion in /Fur-

man, supra].’’ Moore v. State (1975), 233 Ga. 861,

213 S.E.2d 829, 832 (cited with approval in Gregg,

428 U.S. at 205, 96 S.Ct. 2909). (Emphasis added.)

The emphasis in both Gregg and Moore is on the imposition of

the penalty, not upon the subsequent outcome of any appeal from

that imposition. See also, Jarrell v. State (1975), 234 Ga. 410, 216

S.E.2d 258; Gregg v. State (1974), 233 Ga. 117, 210 S.E.2d 659.

Indeed, Georgia has indicated it will consider cases where the

penalty has been imposed by the jury but vacated on appeal for

reasons not material to the sentence. Stanley v. State (1977), 240

Ga. 341, 241 S.E.2d 173, 180. Therefore, we conclude in fulfilling

our duty to compare ‘‘similar cases’’ we may include for com-

-64-

‘son similar cases where the sentence has been imposed by the

District Court, even though the sentence has been vacated on ed

peal. Of course, such vacation must not have been predica “

upon the sentencing court’s acting in a manner contrary to the

standards set forth in section 95-2206.15, R.C.M.1947, now oa

tion 46-18-310 MCA, nor have resulted in a complete Ore tie

the cause. Furthermore, based upon Gregg, 428 U.S. at 204- 206,

96 S.Ct. 2909, and Proffitt, 428 U.S. at 258-259, 96 S.Ct. 2960, we

determine we need not examine every similar case whether ap-

pealed or not, rather we need only examine those cases where

after conviction the death penalty could have been or was impos-

ed that have reached our attention through the appellate process.

Because it is extremely rare that a defendant would acquiesce in a

death sentence, we believe this procedure will insure we have :

more than adequate representation of ‘‘similar cases.’’ We ne

thus consider cases where the defendant has been charged se

kidnapping and murder of the victim of the kidnapping an

where the defendant has been charged with aggravated kidnapp-

ing where the victim has been killed. ee rec Om

A complicating factor in our review of similar cases 18 ab

last hanging of a criminal defendant in Montana occurr _

1943. In the following quarter of a century, although severa

heinous murders occurred, the death penalty was assessed only a

few times by District Courts. During that period the sentencing

entity had unfettered and unguided discretion with respect to —

position of the death penalty. Judicial and legislative attitu

have changes, however, and in the last six to eight years, os

penalty revisions have been enacted been te" pT TRIM 2

aps by the growing incidence of suc ;

freehand of ah kidnapping has been a part of

our statutory law only since 1973. Any review of cases —

than this decade is virtually meaningless because the deat

penalty was not involved unless one goes far back into our state

history. There are cases, dA pe not large in number, to

ich we can look for a meanin comparison.

“ithe defendants in State v. Rhodes (1974), 164 Mont. 455, 524

P.2d 1095, were charged with and convicted of first-degree

murder, kidnapping and robbery. The defendants had escaped

Ne oad ae De aT ants

ee ee ee

-65-

from jail in Idaho, kidnapped Donald Kalberg in Montana, who

was later found shot to death near Forsyth, Montana, and were

later apprehended in Tennessee after kidnapping one other per-

son. The evidence was clear that the defendants had committed

the kidnapping and the ‘‘vicious, wanton, cold-blooded murder of

Donald Kalberg.’”’ 524 P.2d at 1097. The District Court sentenced

the defendants to death for the murder charge, and to the max-

imum penalty allowable for kidnapping, 10 years imprisonment.

The sentence of the court for the murder charge was vacated by

this Court as a result of the decision in Furman. It was not

vacated for actions by the District Court contrary to the stan-

dards contained in section 95-2206.15, R.C.M.1947, now section

46-18-310 MCA, nor were the charges dismissed by this Court.

524 P.2d at 1098.

The defendant in State v. McKenzie (1978), Mont., 581 P.2d

1205, 35 St.Rep. 759, was ...arged with deliberate homicide and

aggravated kidnapping as a result of the bludgeoning death of

Lana Harding. The District Court imposed the death penalty for

both offenses and this Court affirmed following remand from the

United States Supreme Court. 581 P.2d at 1235. The victim was

found draped over a grain drill, partially nude, with a rope tied

around her neck, and severely beaten about the head and body.

581 P.2d at 1210. Death had been caused by the severe blows.

These are the convictions that we can construe as “similar

cases’’. We note that it is only since 1973 that the death penalty

could be imposed for aggravated kidnapping where the victim

had been killed. In the case of McKenzie, where that cir-

cumstance has occurred, the penalty has been invoked. We also

note Montana is a sparsely populated state and crimes of such

violent nature do not occur as frequently here as they do in more

densely populated states. We conclude the penalty of death im-

posed against this defendant for the aggravated kidnapping of

Peggy Harstad which resulted in her death, was not excessive or

disproportionate to the penalty imposed in similar cases in this

state.

Defendant has argued that his sentence is disproportionate and

excessive when compered to the sentences received by his ac-

complice, Robert Dennis Nank. We have already distinguished

~~

-66-

the situations of thesextwo persons above. Nank was sentenced

only for deliberate homicide and solicitation to commit sexual in-

tercourse without consent, the charge of aggravating kidnapping

having been dismissed in return for his guilty plea and testimony

at defendant’s trial. Therefore, defendant's sentence of death for

aggravated kidnapping is not excessive or disproportionate age

compared to the sentences received by Robert Dennis Nank.

niency in one case does not invalidate the death penalty in others.

Gregg, 428 U.S. at 199, 224-226, 96 S.Ct. 2909.

[29] We come to the final issue in this appeal: whether upon

review of the sentence imposed, this Court must reconsider issues

regarding the merits of the cause raised and disposed of in the

first Coleman appeal. We conclude we do not. Our examination of

the record to review the imposition of the death penalty under the

provisions of sections 95-2206.12 to 95-2206.15, R.C.M.1947, now

sections 46-18-307 to -310 MCA, is not to reconsider determina-

tions of merits already made, but to determine whether in light of

such determinations the sentence has been equitably imposed.

Our prior determination of an issue constitutes a final adjudica-

tion of that issue. Belgrade State Bank v. Swainson (1978),

Mont., 578 P.2d 1166, 35 St.Rep. 113 (per curiam).

Defendant has argued the first Coleman decision as to certain

issues was conditioned upon finding the death penalty invalid,

thus a finding now that the penalty was validly imposed

necessitates a reconsideration of those issues. An examination of

the first Coleman opinion reveals the holdings of this Court which

defendant alleges were dependent upon finding the death penalty

constitutionally invalid, were made clearly without such

dependency. Coleman, 579 P.2d at 745, 749, 752.

Judgement of the District Court is affirmed, except that the

cause is remanded to the District Court for the purpose of reset-

ting the execution date of the defendant, Dewey Eugene Col-

eman; said execution to be supervised by the sheriff of the county

where he was tried. Section 46-19-103(3) MCA. If defendant or

defendant’s counsel should wish, he may submit a list of any

other similar Montana cases that he may request us to review for

comparative purposes, within the time provided for and as a part

of any petition for rehearing in this cause.

HASWELL, C. J.,and HARRISON and DALY, JJ., concur.

SHEA, J., dissenting.

SHEA, Justice, dissenting:

I would refuse to allow the death penalty to be imposed. In its

first decision, this Court clearly indicated that the death penalty

was not to be considered at the resentencing. This Court,

moreover, has reached unfairly into application of retroactive

statutes to permit the death penalty to again be imposed. Finally,

assuming arguendo that the sentencing court could properly app-

ly the 1977 death penalty statutes to the 1974 crimes, it did not

properly apply the law, nor did this Court properly perform its

mandatory review duties under the 1977 statutes.

After defendant had entered his pleas of not guilty to count I

(deliberate homicide), count II (aggravated kidnapping), and

count III (sexual intercourse without consent), the court, of its

own motion amended the aggravated kidnapping charge by ad-

ding the following language: ‘‘the alleged actions of the defendant

resulted in the death of Peggy Lee Harstad.’’ Defendant objected

to such amendment, but to no avail.

The case was then tried and submitted to the jury on all three

counts, and the jury was given general verdict forms on each

count. But the trial court, because of its own amendment of count

II, also submitted a special verdict or special interrogatory to the

jury asking it if the aggravated kidnapping ‘‘resulted in the

death of Peggy Lee Harstad.” The jury, in addition to returning

guilty verdicts on all three counts, answered the special inter-

rogatory in the affirmative that the aggravated kidnapping

‘resulted in the death. of Peggy Lee Harstad.’’ Defendant also

had objected to the submission of the special interrogatory to the

jury.

In the first Coleman appeal, this Court ruled against the defen-

dant on both issues. As to the trial court’s amendment of count

II, after defendant’s plea, and over defendant’s objection, this

Court held that the amendment was one of form rather than

substance because defendant was at all times aware that the

State was seeking the death penalty. (Coleman, 579 P.2d at 732).

However, this Court then stated the crux of its holding in relation

to the amended information:

RPTL ILO LO

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“In any event, no legal prejudice resulted from the

amendment of Count II in the light of our holding

that Montana’s death penalty statute as it existed

in 1975 is unconstitutional.’’ 579 P.2d at 746.

This language clearly indicates that this Court did not believe

that upon the case being remanded to the District Court for

resentencing that the death penalty would be reimposed by ap-

plying the 1977 statutes to the 1974 crimes.

Moreover, the language of this Court’s opinion in the first Col-

eman appeal concerning the submission of the special inter-

rogatory to the jury leads to the same conclusion. This Court

ruled that the submission of the special interrogatory to the jury

did not undermine the general verdicts also submitted to the

jury. 579 P.2d at 751. But again, the crux of this Court's holding

on this issue, is stated as follows:

“In any event, our holding on Montana’s death

penalty statutes renders this specification of error

nonprejudicial.”’ 579 P.2d at 751.

These holdings on the questions of the amended information

and submission of the special interrogatory to the jury, are a

clear indication that this Court did not believe that defendant

would be subject to the death penalty under his resentencing.

These holdings, moreover, are a clear directive to the District

Court that capital punishment was to be eliminated from its con-

sideration. But, of course, it was the desire of the District Court

to inflict the death penalty if there was any way possible, and

therefore it chose to interpret this decision otherwise.

In its findings, conclusions, judgment, and order of death,

dated July 14, 1978, the District Court summarized what it con-

sidered to be the essence of this Court’s holding in overturning

the first death sentence. (I note parenthetically, that its summary

was a foregone conclusion, for on June 2, 1978, the same day as

the remittitur of this Court arrived at the District Court, it set

out an order to counsel for both sides that sentencing could be

carried out pursuant to the 1977 death penalty statutes.) In any

event its legal position is revealing:

sl

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-69-

ce

The Court limited its decision on overturn-

ing the death penalty to the absence of procedural

requirements allowing the trial court to consider

any mitigating circumstances in its imposition of a

penalty under the unconstitutional death penalty

statute.

. The statute as amended was declared un-

constitutional in this case, but the Supreme Court in

remanding for resentencing did not specifically

declare if the trial court could or could not impose

the death penalty. Coleman argues that since the

mandatory statute was declared unconstitutional,

Coleman cannot be sentenced to death under laws

enacted after his conviction. (Emphasis added.)

‘The Supreme Court at page 11 of its opinion indicates that if the

death penalty had been imposed under proper procedural

safeguards, the sentence would have been upheld. The Court

states:

‘ “To have a constitutionally valid death penalty,

the United States Supreme Court has established

certain necessary procedures. (Citations.) None of

these required procedures are present in Montana's

death penalty statute as it existed in 1975, nor were

they provided otherwise in this case. (Emphasis ad-

ded.) Thus defendant’s death sentence cannot

stand.’ (Emphasis is the trial court’s.)

“The emphasized language strongly suggests that if

the sentencing court had observed procedural re-

quirements declared by recent U.S. Supreme Court

decisions, the death penalty would have been upheld

notwithstanding that Montana’s mandatory law

was unconstitutional. (Emphasis added.)

“The later enactment of section 95-2206.6, et. seq.,

spelling out the procedure, should not operate to

take away the court’s power to impose the death

penalty under proper procedural safeguards. The

death penalty is an operative fact under the Mon-

De ET SE OT ee ee ey

PET LISLE MGR AIL, ET LID

-70-

tana Constitution and section 95-5-503,

R.C.M.1947, and are not to be ignored because a pro-

cedurally effective statute is abrogated and other

statutes are substituted therefor. As argued by the

State from the Dobbert case, the circumstance that

the defendant is afforded greater procedural protec-

tion by the trial court’s utilization of sections

95-2206.6, et seq., does not fall within the prohibi-

tion of ex post facto laws.

“In summary, the trial court in now pronouncing

sentence is in a position to utilize the interim

developments in sentencing procedure as reflected

in recent U.S. Supreme Court decisions and the

Montana statutes enacted in response thereto.”

The court then listed its findings and conclusions and entered

its order sentencing defendant to death for the second time.

The sentencing court obviously milked the majority decision as

much as it could in order to arrive at a decision that would allow a

reconsideration of the death penalty. True, this Court did not ex-

plicitly direct the District Court to eliminate the death penalty

from its consideration. But a fair reading of our decision on the

questions of the amended information and the special jury inter-

rogatory leads to that conclusion. =

The sentencing court concludes its original death penalty

would have been approved if only it had the foresight to allow the

defendant to present mitigating circumstances at a presentence

hearing. Not only is this a misreading of the opinion by the

District Court, but it is clear that such procedure would not have

been approved. For the statutes themselves must provide for the

presentencing hearing permitting evidence of aggravation and

mitigation. As I covered the statutory requirements in my dis-

sent in State v. McKenzie (1978), Mont., 581 P.2d 1205,

1266-1277, 35 St.Rep. 759, it would serve no useful purpose to

again set forth these requirements as mandated by the United

States Supreme Court. It is sufficient to say that the District

Court is sadly mistaken.

It is equally clear that the trial court was interested only in ap-

plying Dobbert to the facts of this case and that it did not con-

a Si nba a i

sider either the ex post facto provision in the Montana Constitu-

tion, or the statutory directive of section 12-201, R.C.M.1947,

which prohibits ey retroactive application of a statute unless it

is specifically provided for in the statute. I must admit, however,

that I am even more amazed by the majority’s application of

these laws to the facts of this case. It is a clear demonstration of

what can happen when the law is not allowed to get in she way of

the result.

It is unfortunate indeed that the majority has chosen to join

lock step with the United States Supreme Court, and not only in

interpreting the United States Constitution. The only reference

the majority makes to the ex post facto provision of our own Con-

stitution is where it sets forth the issue raised by the defendant:

“The next issue with which we are confronted is

whether ex post facto provisions in the federal and

state constitutions or the statutorily codified rule of

construction against retroactivity (section 12-201,

R.C.M.1947, now section 1-2-109 MCA) prevent ap-

plication of the sentencing statutes enacted in 1977

to this defendant .”’ (State v. Coleman, Mont.,

605 P.2d 1010, 1979).

The statement of the issue in this way constitutes a forewarning

that all issues are going to be decided by one standard—the stan-

dard set forth by the United States Supreme Court in Dobbert v.

Florida (1977), 422 U.S. 282, 92 S.Ct. 2290, 53 L.Ed.2d 344. Why

this Court consistently refuses to give more substantive meaning

and protection to our own constitution provisions as opposed to

that given by the United States Constitution, I cannot unders-

tand. The United States Supreme Court is not the sole repository

of all wisdom. Nor can it be the final authority on the interpreta-

tion of the Montana Constitution.

Though we must accord all people every right to which they are

entitled under the United States Constitution, there is nothing

which prevents us from according them even more fundamental

protection under our own Constitution. Article II, Section 31,

1972 Montana Constitution provides:

——————— Ke t—~—

SSS S- _

-72-

‘No ex post facto law nor any law impairing the

obligations of contracts, or making any irrevocable

grant of special privileges, franchises, or im-

munities, shall be passed by the legislature. (Em-

phasis added.)

Under this provision, I would hold that no law passed me

legislature after the commission of the crime, 2 on WA

denominated substantive or merely procedural or ame eon i '

can be applied to permit a sentence of death, if the statutes ~

plicable at the time of the commission of the pogmrns y ae

stitutionally deficient, and hence would not permit t . pel

tion of the death penalty. The frailties of mankind (an ju 3 “

must be included in this reference) are such that a man’s li

should not be subject to the ee ae conga inherent in in

i roactive application of the law. a ;

ag ip yey oa Pe we declared the tna calling

for mandatory execution in the event of a conviction of the era

of aggravated kidnapping leading to the victim’s death, ye ro

constitutional. 579 P.2d at 741-742. Under the statutes t oe .

isting, defendant could not constitutionally be oer :

death. For this reason, I would declare that the 1977 deat pena

ty statutes (however they be pagum penalise saerebie! ei

cedural, ameliorative, or whatever) could not sag ae page y ,

applied to defendant. Nas We ha — court had no authori

in sentence defendant to death. Ba llbee

ese ‘beloes that there is any excuse of the majority s

failure to give the defendant the benefit of a doubt in epg tee

section 12-201, R.C.M.1947, (now section 1-2-109 MCA). Tha

section falls within the chapter containing the rules of construc-

tion which are to apply to all statutes in the State of Montana.

Section 12-201 provides:

“No law contained in any of the codes or other

statutes in Montana is retroactive unless expressly

so declared."’ (Emphasis added.)

The only reasonable interpretation of this statute is that the 1977

fendant only if the

death penalty statutes can apply to the de

caidas expressly declared that these statutes were to have

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retroactive effect. Not only is there a total lack of express

declaration that the 1977 death penalty statutes are to be

retroactively applied, but there is no room even to imply that the

legislature intended them to have a retroactive effect. (See sec-

tions 95-2206.6 through 95-2206.15, R.C.M.1947, now sections

46-18-301 through 46-18-310 MCA). The statutes contain no

directive for retroactive application.

This statute prohibiting retroactive application of legislative

acts does not distinguish between retroactive application of a

procedural statute or retroactive application of the statute that is

considered substantive. It prohibits retroactive application of

any statute—period—unless it is ‘‘expressly declared” to have

retroactive application. The hair-splitting business of

distinguishing between a substantive law and a procedural law

must stop when a man’s life literally hangs in the balance.

This Court has also ignored fundamental case law previously

adopted by this Court in interpreting section 12-201. Because it is

a rule of construction which applies to all statutes enacted by the

legislature, it will not be given retroactive effect unless expressly

so declared. State ex rel. Whitlock v. State Board of Equalization

(1935), 100 Mont. 72, 84, 45 P.2d 684. This holding does nothing

more than to give full meaning to the express language of section

12-201. This Court also held that statutes are intended to operate

prospectively only, in the absence of a contrary intention clearly

expressed in the statutes, and that every reasonable doubt is

resolved against a retroactive application of a statute. State ex

rel. Mills v. Dixon (1923), 68 Mont. 526, 528, 219 P. 637.

The death penalty statutes enacted in 1977 were not expressly

declared by the legislature to be retroactive in application. The

statutes are silent. It is presumed therefore, that they were in-

tended to operate only prospectively. Other than an emasculation

of the law there is no way that this Court should have declared

them, in essence by judicial fiat, to operate retroactively. Section

12-201 prohibits such interpretation; Whitlock, supra, solidifies

this statute; and Dixon, supra, clearly establishes that every

reasonable doubt should be resolved against retroactive applica-

tion of a statute. If there are not legitimate policy reasons in a

, 14

death penalty case to resolve a resonable doubt against cna

tive application in order to save a man’s life, I poses ene -

another instance where such policy reasons wou syne

suspending the operation and effect of section 12-201, t “ ae

has inflicted a grave injustice upon the defendant—one tha

ectified.

war a is, moreover, another statute which this Court, as — -

the trial court, totally ignored in reaching its neque : i

43-507, R.C.M.1947 (now section 1-2-201(1) MCA) provides:

“Every statute, unless a different time is prescribed

therein, takes effect on the first day of July of the

year of its passage and approval.

The death penalty statutes (sections 95-2206.6 neha

95-2206.15) provide no time as an effective date. Accor “ .

they were effective as of July 1, 1977. Though the — y ©

nored this statute, it does appear that somehow they sg

avoided its application to rw = s case. But, at leas y

fendant an explanation.

Marsa hse arguendo that it was proper to apply the a —

penalty statutes to the 1974 crime, it is still agey igen

that the trial court failed to follow the statutes, and t : on

Court failed to fulfill its statutory functions under the age a od

review provisions of the nen naed fi wea reasons also,

nalty should not be allowed to stand.

argh this second sentencing in proper perspective — a

first sentencing, I digress to the circumstances surroun — _

first trial insofar as they are pertinent to the imposition 0

i ntence.

ey poses kidnapping statutes called for the cages

infliction of the death penalty if the victim died as a are weep

kidnapping. (Sections 94-5-303, and 94-5-304, : : ; sm

Originally the State did not allege in Count II of the in ogee :

(the aggravated kidnapping charge) that the vic

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