# Appendix — Coleman v. Montana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1945%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 446 U.S. 970 ## Text P34 Rd BOR RON ee > tt ¢ Gt? ee 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 ook p -101- the Court, indeed, before this Court had ruled on defendant's peti- tion for rehearing, the sentencing court had ordered a presentence investigation report and ordered the defendant immediately returned from the state prison to be placed in the Custer County jail. Apparently on the same day as the remittitur was received by the sentencing court, it sent out an order setting a presentence hearing and stated that it would be conducted under the 1977 — death penalty statutes. The sentencing judge ignored our deci- sions on issues three and eleven which clearly indicated that this Court did not contemplate that the death penalty would be a” reconsideration upon resentencing. He read in everything he possibly could to construe the first Coleman opinion to mean he could apply the 1977 death penalty statutes retroactively. At the sentencing hearing itself, he accepted and filed the presentence investigation report, but at least as far as the record is concerned, the sentencing court ignored it, and did not consider the ‘‘particularized circumstances... of the defendant.” He stret- ched the law to the breaking point to saddle the defendant with a “history of prior criminal activity’, a clear misreading and misapplication of section 95-2206.9(1). He allowed final argument on the penalty to be imposed, only after he had predetermined the issue by coming to court armed with his written death sentence. He totally failed to consider the lenient treatment given to Nank who was by his own admissions, an equal participant in the crimes for which defendant was ordered to be hanged. Moreover, Nank had a previous felony record. If these factors, individually, or at least collectively, do not demonstrate that the sentencing authority was ‘‘under the in- fluence of passion, prejudice, or any other arbitrary factor’’ (em- phasis added), I do not know what would. It is an easy matter for a reviewing court to find an absence of “passion, prejudice, or any other arbitrary factor” if it views the varictis factors in isolation, and does not consider them together. But, they must be con- sidered together if meaningful review is to be provided under sec- tion 95-2206.15(1). Unfortunately, in this case, these factors were not considered in isolation, let alone collectively. The only factor considered by the majority is the failure of the prosecution to give the same plea and sentencing considerations -102- to defendant as he had given to Nank. But the majority has en- tirely missed the point--for two reasons. First, the sentencing court should have made some mention of the distinctions in the penalties handed out to Nank as opposed to the defendant, but failed to do so. If the sentencing court thought there were legitimate reasons for treating the defendant differently, it was obligated to set forth those facts and reasons justifying the dif- ferent treatment. This was not done of course. Second, the ma- jority misreads Gregg when it cites this case as justifying the different treatments. The failure to properly apply Gregg results from the majority’s reliance on the prosecution’s brief in relation to Gregg. In its brief, the prosecution stated in response to defendant’s argument that defendant was the victim of arbitrary and capricious treat- ment being that Nank was shown leniency: “Furthermore, leniency in one case does not in- validate the death penalty in others.’’ Gregg 428 U.S. at 199, 224-226, 96 S.Ct. 2909 In its opinion, the majority stated: “leniency in one case does not invalidate the death penalty in others.”’ Gregg, 428 U.S. at 199, 224-226, 96 S.Ct. 2909. The State made no effort in its brief to explain or expand upon this interpretation of Gregg, and neither did the majority opi- nion. Suffice to say that Gregg does not apply to the facts of this case. It was hardly appropriate for the majority to rely on this statement of the State in its brief as it is nothing more than a con- tinuing and unrelenting effort to salvage the death sentence im- posed in this case, without regard to a fair and dispassionate in- terpretation of the law or facts. The basic thrust of the statement in Gregg was that a defen- dant handed the death sentence cannot complain that he has been the victim of arbitrary and capricious conduct simply because another defendant, in another case, has for some reason been the beneficiary of a prosecutor's mercy. That is a far cry from the situation here where Nank admitted committing precisely the =e Reap a PO mn Re Se RE Satan caret: -103- same crimes of which the defendant was convicted by a jury. But, Nank was shown mercy: the defendant was sentenced to hang. This can hardly be interpreted as a just and evenhanded applica- tion of the law. On May 7, 1975, Robert Nank agreed to cooperate with the State in its prosecution of the defendant. In exchange for this cooperation, he received certain benefits—primarily a dismissal of the charge of aggravated kidnapping charge which eliminated the possibility that the death penalty would be imposed. Sixteen days later, defendant Coleman, though still maintaining his in- nocence, offered to plead_-guilty to the same charges to which Nank had pleaded guilty, but insisted on maintaining his in- nocence. The State refused his offer. The case against defendant went to trial in essence because defendant refused to admit his . guilt. Primarily on the basis of Nank’s testimony, he was con- victed of all charges, including the crime of aggravated kidnapp- ing. The majority has grounded part of its opinion on the first Col- eman case wherein the majority held that it was not improper for the prosecution to refuse to accept defendant Coleman’s condi- tional offer to plead guilty. Although the prosecutor did have the discretion to refuse this conditional plea offer, the consequences which followed are not fair in the slightest degree. Nor should they be tolerated. Conceding that the prosecutor had the right to refuse the condi- tional plea offer, it does not establish that the conditional plea of- fer was constitutionally infirm. At least that is the law of the United States Constitution. In North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, it was held that there is no constitutional error in accepting a guilty plea which contains a protestation of innocence. Accordingly, at least, under the United States Constitution the prosecutor and sentencing court could have accepted the conditional plea of guilty. If they had, the defendant could not later withdraw his plea. It is important to note however, that the record does not affir- matively establish why the conditional plea was not accepted. That is, it does not establish that the prosecutor would have treated defendant just like Nank if he would unconditionally -104- plead guilty to the charges. We cannot conclude therefore, that the prosecutor ever promised defendant the same treatment as Nank. In terms of plea bargaining the American Bar Assocaition has established its position relating to similarly situated defen- dants: “Similarly situated defendants should be afforded equal plea agreement opportunities.” (American Bar Association on Standards for Criminal Justice, Standards Relating to The Prosecution Function and the Defense Function, approved draft (1971), at 102.) There is no showing in the record that the prosecutor ever offered the same terms to defendant as he did to Nank, and yet there is not a better illustration of similarly situated defendants. Under the circumstances of this case, there was a clear affirmative duty for the prosector to establish that he offered the same plea bargain to defendant as he did to Nank. The prosecutor did not and cannot meet that burden. : There is no question that absent Nank’s accomplice testimony, the State would have insufficient evidence to convict defendant.. But once it struck the plea bargain with Nank it had the evidence to convict defendant of the charges if the jury believed Nank 5 testimony. The record establishes, that is, Nank’s confession and Nank’s testimony at trial, establishes that Nank and defendant committed the same acts against the victim. The effect in terms of sentencing, however, is that because the State could not con- vict defendant without Nank’s testimony, it struck a bargain to keep one man alive in exchange for the possibility of ultimately putting one man to death—the defendant. The jury verdict against the defendant, based on Nank’s testimony, set in motion the ultimate imposition of the death penalty. Such disparate results from such similar criminal acts, cannot be countenanced by society, and certainly should never be countenanced by the courts. The majority has performed a great injustice by ratifica- tion of this unequal treatment. : There are two procedural matters concerning the sentencing proceedings that need some clarification. The majority has con- cluded that defendant was not deprived of an opportunity to pre- a ee PETS Te er TN 5 ity ae 105- sent oral arguments at the presentence hearing, and moreover, that in essence, defendant waived further rights to present mean- ingful arguments by not presenting proposed findings of fact to the sentencing court after having been invited to do so. On this basis, the majority concludes: “Thus, defendant and his counsel had at least two opportunities to submit argument to the Court regarding the death penalty prior to July 10, 1978 hearing, but did not do so.”’ This conclusion has greatly distorted the realities of the situa- tion. I have already discussed the proceedings which took place dur- ing the so-called sentencing hearing. As neither party submitted any evidence at the presentence hearing, and the only document filed at the presentence hearing was the presentence investiga- tion report, it was agreed that both parties would submit briefs to the sentencing court with regard to their respective positions. This apparently was done, although this Court does not have the benefit of those briefs. In addition, the sentencing court invited both sides to submit proposed findings and conclusions, but on- ly the prosecutor indicated positively that he would do so. The sentencing court did not tell the parties that subniission of briefs would constitute a waiver of oral argument concerning the penal- ty to be imposed. It is logical to assume that before sentencing, defense counsel believed that he would have an opportunity to make a meaningful and effective oral argument against imposi- tion of the death penalty. Clearly, the sentencing court did not comply with the spirit of section 95-2206.7, which provides in per- tinent part: ¥ ‘‘... The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.” (Emphasis added.) The word “‘shall’’ is mandatory. For it to be meaningful, the im- plication is that argument shall be presented before the sentenc- ing court makes its decision. But such is not the case here. True, the sentencing court, on July 10, 1978, allowed defense counsel to argue against imposition of the death penalty, and the state to -106- argue for imposition of the death penalty. But by this ma bi court had already decided to impose the death pena a mt sentencing court had come to court with its written ay sentence already prepared. As I have previously winner » in sofar as the defendant is concerned, this is akin to a so defense counsel in a criminal case to make final arguments = t : jury only after the jury has returned with its guilty paren Under these circumstances, it cannot be reasonably argued t ‘ defendant was given a meaningful opportunity to argue — the death penalty when the decision to hang had alrea 4 niger made. This not only violated the spirit of section 95-2206. ; i also constitutes a denial of the effective assistance of counsel. , Nor is it reasonable to conclude as did the sentencing vane an the majority here, that defendant effectively waived anot . oP portunity to argue against the imposition of the ioe sen — by failing to submit proposed findings of fact and conclusions 0 law. It is true that the sentencing court invided defense —— and the prosecutor to submit proposed written findings ge con clusions; but only the prosecutor responded that he wou 0 So. The prosecutor did present proposed findings and conc — But does the sentencing court truly believe, does the acd truly believe, that the tide could well have been cngas : defendant if only his lawyer had presented proposed findings o fact? How far must we bury our head in the sand? ey Indeed, the statute calling for “specific written goat ry) fact’’ clearly operates only when a decision is made to ta , a defendant’s life. Section 95-2206.11 provides in relevant part: ‘In each case in which the court imposes the death sentence, the determination of the court will be sup- ported by specific written findings of fact . .. (Em- phasis added.’ | | This statute leaves no doubt that findings are required only ‘a the event of a decision to impose the death penalty; and statute certainly places no duty upon the defendant to “a e those proposals. The duty is that of the court and the sg = to support its death sentence with the required “‘speci ic writte findings of fact.’’To impose a duty and burden of persuasion upon . ™ ‘ . 4s ee nb Le TAN RRS Sat rb Barren et PE tte RN wl Ua SE ict -107- the defendant to present his own proposed findings of fact is clearly beyond the contemplation of the statute, and beyond any duty that this Court should gratuitously impose on the defen- dant. What if the defendant’s counsel did submit proposed findings of fact? We may safely assume that would have led to the inex- orable conclusion that defendant’s life should be spared. But, if the sentencing court spared defendant's life, the proposed fin- dings would not serve any function whatsoever. Since the deci- sion to grant mercy is one in which no findings of fact are re- quired, and it also being obvious that the State has no appeal from such a decision, the proposed findings most likely would have found their way to the trash can. Furthermore, the majority ignores the primary function of findings of fact in terms of the decision-making process at the trial level. If trial judges and trial lawyers are candid, they will admit that proposed findings are prepared and submitted by counsel to assure that in the event the trial court finds in their favor that all the bases are covered in the event of an appeal. They are submit- ted possibly with the hope, but rarely if ever, with the expecta- tion that the proposed findings will actually be a decisive factor in influencing the trial court to rule in favor of one’s client. In- deed, it has been my experience, and an unfortunate one from the standpoint of appellate review, that most often the trial court simply rubber stamps the proposed findings of the winning side. Rarely do we get any insight as to what the decision-making pro- cess was, or how the trial court in fact viewed the evidence at trial. In the instant case, I do not know how closely the findings of fact parroted the proposed findings submitted by the pro- secutor, as the proposed findings are not a part of the record on appeal. An examination of the findings entered in this case does not give a reviewing court any insight as to what the fact finder was thinking; that is, what factors were actually involved in motivating and impelling his decision to impose the death penal- ty. The findings are cold and calculated and set out with staccato precision — but hardly a revelation as to the reasons for concluding the defendant must die. In considering and weighing -108- the totality of circumstances surrounding the commission of the crimes by defendant, and by Nank, and in considering and weighing the totality of circumstances surrounding the ‘‘par- ticularized Circumstances of .. . the defendant’, what actually im- pelled the sentencing court court to sentence defendant to hang while at the same time he knew that an equally guilty accomplice would not hang? The record is silent as to these factors—the real reasons hidden forever in the bosom of the court. The findings are more revealing for what they don’t say than for what they do say. It is clear beyond question that defendant’s presentation of proposed findings, in addition to not being required, would have been a manifest exercise of futility. Findings of fact collaborated in by a thousand William Shakespeares could not have deterred the sentencing court from its chartered course. Does any member of the majority truly believe otherwise? Under these cir- cumstances to conclude that proposed findings of fact are a form of argument calculated to have and with a reasonable possibility of having a certain persuasive effect on the sentencing court, is utter nonsense. Before discussing the majority position that only cases involv- ing imposition of the death penalty must be reviewed by this Court, I emphasize that I do not contend defendant would have to be treated exactly like Nank in terms of the sentencing impos- ed. In the case of Nank, the charge of aggravated kidnapping was dropped as part of a plea bargain agreement and obviously he could not be sentenced at all for that crime. But since defendant was convicted by a jury of three crimes (including, of course, that of aggravated kidnapping), he could have been sentenced for all three crimes. The sentencing court went one step too far when it sentenced the defendant to hang. One of the purposes of appellate review is as the majority states, ‘‘[to] serve as a check against the random or arbitrary im- position of the death penalty”, citing Gregg, 428 U.S. at 206, 96 S.Ct. at 2940. But Gregg did not hold that only other death penal- ty sentences need be compared. Nor do I believe the Georgia Case relied on by the majority (Moore v. State (1975), 233 Ga. 861, 213 S.E.2nd 829) is authority for the majority position in light of the Shee et heat WS oo wt pee em ret bee i Pattee >. bea et OE AR Be Mn roarlctne -109- wording of the statutory review scheme in this state. Section 95-2206.15 does imi i i oe not so limit our review. It provides in relevant “Supreme Court to m ake d i Racia etermination as to The supreme court shall consider the punishment as well as any errors enumerated by way of appeal With regard to belo g the sentence, the court shall deter- é “(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant The court shall include in its decision a reference to those similar cases it took into consideration.”’ If only a comparison with other death sentences i the legislature would have inserted the word ‘death behest word ‘‘penalty”’. aoa If the actual purpose of ma i ndatory review (mandated b per States Constitution) is to check against ‘‘the wp ser rary imposition of the death penalty”’, I fail to see how such rei a be fairly and effectively fulfilled without a comparison a - cases wherein the death penalty could have been im- ne but for some reason was not. Factors which may lead a re pe : we bea ga the death penalty may well be ion by a reviewing court in d ini whether a particular case und i ptire case and that he was entitled to the benefit of that presumption upon every question of fact; and that the jury should determine his guilt or innocence by a careful consideration of all the evidence introduced in the case during the trial. ~ In instruction no. 4, the trial court told the jury that the burden of proof rested upon the state throughout the trial to establish the guilt of Coleman beyond a reasonable doubt and that his conviction would not be warranted unless the burden was sustained. In instruction no. 5, the jury was told the defendant in a criminal action is presumed to be innocent until the contrary is proven, and in case of reasonable doubt whether his guilt is satisfactorily shown, he was entitled to an acquittal; that the ef- fect of this presumption was to place upon the State the burden of proving the defendant guilty beyond a reasonable doubt. Although Coleman was convicted of three separate crimes, the disputed instruction relates only to the charge of deliberate -126- - homicide. We find that the trial court fully informed the jury in the foregoing instructions about the burden of proof resting upon the State as to each material element of the crimes charged and the abiding effect of the presumption of innocence throughout the course of the trial. We look now to determine the effect under the instructions of the language in the disputed instruction that the jury might ‘‘infer that the homicide was committed knowing- ly or purposely”’. An inference is a form of evidence defined as ‘“‘indirect evidence”. Section 26-1-102(4), MCA. To a layman, perhaps, in- direct evidence is better known as “‘circumstantial evidence”. In trial court’s instruction no. 8, the jury was instructed that there were two classes of evidence upon either or both of which if adequately convincing, the jury might lawfully find the accused guilty of crime. One was direct evidence, and the other was cir- cumstantial evidence. A part of the court’s instruction no. 8 with respect to circumstantial evidence told the jury: ‘‘All other evidence admitted in the trial is cir- cumstantial, and insofar as it shows any acts, declarations, conditions, or other circumstances ten- ding to prove a crime in question, it may be con- sidered by you in arriving at a verdict. Either will support a verdict of guilty if it carries the convinc- ing quality required by law, as stated in these in- structions. However, you are instructed that you are not permitted on circumstantial evidence alone to find the defendant guilty of any crime charged against him unless the proved circumstances not on- ly are consistent with the hypothesis that the defen- dant is guilty of the crime but are inconsistent with any other rational conclusion.”’ When we give careful attention to the words spoken to the ju- ry, as the United States Supreme Court said in Sandstrom, the foregoing instruction with respect to the effect of circumstantial evidence must be weighed with the disputed instruction that the jury ‘‘may infer’’ material elements of the crime. On balance, it is clear to us that the permissive language in the disputed instruc- -127- tion must under any fair reading give way to the positive declara- tion in instruction no. 8 that circumstantial evidence must carry the convincing quality required by law as stated in the instruc- tions, and that any such inference standing alone would be insuf- my unless it was inconsistent with any other hypothesis than guilt. [31] On appeal, we view the instructions as a whole. State v. Farnes (1976), 171 Mont. 368, 558 P.2d 472. It is impossible to deliver the whole of the law in any one instruction, and for that reason, all instructions are considered as a whole and if they fair- ly tender the case to the jury, the fact that one instruction stan- ding alone is not as full or accurate as it might be is not reversible error. State v. Caryl (1975), 168 Mont. 414, 543 P.2d 389. The pur- pose to commit a crime, or knowledge that one is committing a crime, are subjective matters that most often can be proven only through circumstantial or indirect evidence. [32] The holding in Sandstrom is not to be construed to mean that whenever a trial court instructs the jury that it may resort to inference to determine subjective matters such as knowledge or purpose, that thereby the State has been relieved of its burden of proof. The United States Supreme Court did not intend such limitation, and we do not find any such intention in the language of Sandstrom, or its related cases. The jury was not allowed to rest solely upon the permitted inference in the Coleman case, but under the instructions had to require such an inference to meet the standard as beyond a reasonable doubt. The true test under Sandstrom, in determining the effect of an instruction such as the one disputed here is whether that instruc- tion has the effect of allocating to the defendant some part of the burden of proof that properly rests on the State throughout the trial. See Holloway v. McElroy (D.Ga. 1979), 474 F.Supp. 1363 1368. We do not find that to have occured here. On that basis we distinguish the Coleman instruction from those cases involving a burden-shifting presumption as in Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; and conclusive presumptions like those involved in Sandstrom, supra; Morissette v. United States (1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; and United States v. United -128- States Gypsum Co. (1978), 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854. Instead, the inference is purely permissive, in the sense described in County Court of Ulster City v. Allen (1979), ——U.S.——, 99 S.Ct. 2213, 60 L.Ed.2d 777. [33] Coleman further contends that because we stated in our first Sandstrom opinion (State v. Sandstrom (1978), Mont., 580 P.2d 106, at 109, 35 St.Rep. 744, at 748)-that the instruction in Coleman was similar to the Sandstrom instruction that thereby the United States Supreme Court in overruling Sandstrom has in effect determined that the Coleman instruction was likewise un- constitutional. We do not accept that contention as having any validity. Comparing each instruction, we see this manifest dif- ference: The Sandstrom instruction is by its terms mandatory but the Coleman instruction is permissive. We can see no other construction as to the effect of the language used in instruction no. 22 in this Coleman Case. 2. THE EFFECT OF THE INSTRUCTION ON “KNOW- INGLY.” Here Coleman attacks the definition of the term ‘‘knowingly”’, as given by the Court in instructing on that element regarding the crimes charged. In trial court’s instruction no. 26, the jury was told: ‘Knowingly’. A person acts knowingly ,with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its ex- istence. Equivalent terms such as ‘knowing’ or ‘with knowledge’ have the same meaning.” The objections to this instruction on rehearing are: (1) it violates the rule against reasonable doubt because it requires on- ly a “high probability of its existence;”’ (2) it is in effect an ex- clusive presumption in that the element is established if the jury finds a high probability of its existence; and (3) “high pro- bability’”’ does not have that quality which would enable a jury to convict. -129- Under United States v. United States Gypsum Co., supra where a defendant’s state of mind or intent was an element of an antitrust offense, a reliance by a jury on a legal presumption of wrongful intent from proof or effect on prices necessitated rever- sal. Applying the rationale of United States Gypsum Co., defen- dant contends that Mcntana’s statutory definition of “know: ingly” is established if a jury finds “‘a high probability of its ex- istence’’. This, Coleman contends, does not equate with proof beyond a reasonable doubt as an essential element of the crime charged. [34] In the original Coleman opinion from this Cour Mont., 579 P.2d 732, 35 St.Rep. 560, we considered th ea ment. There we rejected the contention. Consideration by us of the renewal issue on rehearing is proper, since it was not address- ed in our second Coleman opinion of June 20, 1979, supra, and the Sandstrom decision intervened between our said decision and the rehearing. The statute on which the instruction is i 45-2-101(27), MCA, defines ‘‘knowingly”’ as mage as ‘““Knowingly’—a_ person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an of- fence, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as ‘knowing’ or ‘with knowledge’ have the same meaning.” The statute considers two elements of knowledge as far as this case is concerned, (1) knowledge as to the conduct itself and, (2) knowledge as to the result of that conduct. It is only the result of the conduct that hangs on the proof of its awareness that “it is peers probable that such result [would] be caused by his con- uct.”’ -130- [35] The evil countermanded in Sandstrom and again in United States Gypsum Co., is instructing the jury in such a man- ner that the function of fact-finding is invaded by the court. It is when the instructions take away from or intrude upon the duty of the jury to find intent that the instruction becomes constitu- tionally impermissible for ‘‘‘A conclusive presumption [of intent], which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense.’’’ 483 U.S. at 446, 98 S.Ct. at 2878; Morissette, 342 U.S. at 275, 72 S.Ct. at 256. [36] When the holdings in Sandstrom and United States Gyp- sum Co. are understood in that context, one may examine the in- struction on ‘‘knowingly” complained of here, and determine that the fact-finding duty of the jury is not invaded by the Court. The District Court is not usurping a jury function when it instructs ‘a person acts knowingly with respect to the result of conduct [constituting a crime] when he is aware that it is highly probable that such result [would] . . . be caused by his conduct.” The jury is not called upon to determine ‘“‘high probability” in place of “reasonable doubt”; rather it is called on to determine the ex- istence of defendant’s awareness, beyond a reasonable doubt, that a high probability is that the result of his conduct makes his conduct criminal. The district Court here did not, by using this in- struction, make it mandatory upon the jury to find defendent’s awareness, nor conclusively presume his awareness. That finding was left exclusively to the jury. In short, the instruction did not establish a presumption which testimony could not overthrow. On that basis, therefore, we find no merit on the second ground of attack. [37] Montana has the right and authority to define crimes and their elements. See Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. It is consistent with modern con- cepts of intent to define knowledge as an awareness of probable consequences. The Unites States Supreme Court said in United States v. United States Gypsum Co., supra, 438 U.S. at 444-45, 98 S.Ct. at 2877, with respect to intent under antitrust laws: “. . we conclude that action undertaken with knowledge of its probable consequences and having =! Oe dite sheesh the ian: -131- ( the requisite anticompetitive effects can be a suffi- cient predicate for a finding of criminal liability under the antitrust laws. ‘‘Several considerations fortify this conclusion. The element of intent in the criminal law has traditional- ly been viewed as a bifurcated concept embracing either the specific requirement of purpose or the more general one of knowledge or awareness. ‘“[I]t is now generally accepted that a per- son who acts (or omits to act) intends a result of his act (or ommission) under two quite different circumstances: (1) when he consciously desires that result, whatever the likelihood of that result happening from his conduct; and (2) when he knew that the result is practically certain to follow from his conduct, whatever his desire may be as to that result.’ (Citing authority.) “Generally this limited distinction between knowlege and purpose has not been considered im- portant since ‘there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the result.’ (Citing authority.) In either circumstance, the defendants are consciously behaving in a way the law prohibits, and such conduct is a fitting object of criminal punishment. (Citing authority.)’’ 3. DISTINCTION BETWEEN EX POST FAC- TO AND RETROACTIVE RESTRICTIONS Nothing in the briefs or on the rehearing has been brought to our attention requiring us to expand our discussion of these issues in our opinion pro- mulgated June 20, 1979, except for the citation by Coleman of State v. Collins (La.1979), 370 So.2nd 533, and Miller v. State (Tenn.1979), 584 S.W.2nd 758. -132- In State v. Collins, the Louisiana Court decided, on retroactive grounds, without specific reference to ex post facto effect, that the application of the death penalty was barred by a Louisiana statute similar to that of Montana, that no section of the revised statutes is retroactive unless expressly so stated. The defendant there committed the offense of first degree murder at a time when the first degree murder statute provided that whoever committed the offense must be punished by death. Following the United States Court decision in Roberts v. Loui- siana (1976), 428 U.S. 325,.96 S.Ct. 3001, 49 L.Ed.2d 974, Louisiana enacted new statutes effective 21 days after the offense here was committed, ‘‘redefin- ing the crime of first degree murder and enacting a permissive, and presumably constitutional, death penalty .. .”” 370 So.2d at 534. It appears therefore that Louisiana not only redefined the punishment for murder, but redefined the crime. In Montana, the legislature took only the procedural step of redefining the punishment. On that basis, as our earlier discussion respecting ex post facto and retroactive provisions disclose, State v. Collins is distinguishable from the case at bar. Similarly, there is a distinguishing factor in Miller v. State, supra. The Tennessee constitution has a provision which states: “That laws made for the punishment of acts com- mitted previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free Government; wherefore no Ex post facto law shall be made.”’ 584 S.W.2d at 761. It is obvious that the Tennessee court, under that State con- stitutional provision, could only decide that laws providing for punishment but enacted after the crime could not be retroactive- ly applied. ee a ee -133- It should be noted that the Tennessee court in Miller agreed with our determination of the effect of Calder v. Bull (1798), 3 U.S. (3 Dall.) 386, 1 L.Ed. 648, as to retroactivity and the four broad classifications of (1935), 116 N.J.L. 48, 181 A. 706. See 584 S.W.2d at 761. We note in passing that in Smith v. Com. (1978), 219 Va. 455, 243 S.E.2d 135, where Virginia’s 1975 death penalty statute was presumptively valid in spite of the United States Supreme Court decisions attacking the constitutionality of similar death penalty statutes and a 1977 Virginia law amending the death penalty statute was applied to uphold a previous death penalty; the Virginal Court found that the 1977 changes were ameliorative. It found so because the 1977 law provided an alternative penalty provision instead of the mandatory penalty provision of the 1975 law. This was the same situation as occurred in Montana. Relying on Dobbert v. Florida (1977), 432 U.s. 282; 97 S.Ct. 2290, 53 L.Ed.2d 344, the Virginia Supreme found no ex post facto viola- tions since the defendant had “‘’fair warning’ of the consequences of murder.’’ 248 S.E.2d at 147. The Virginia court found that the changes were ameliorative and merely procedural. Since we find no compelling reason to reverse our opinion respecting the application of the 1977 Montana death statute, we hold to what we said on that subject in the opinion promulgated on June 20, 1979. 4. THE NEW MONTANA CAPITAL PUNISHMENT STATUTES ARE UNCONSTITUTIONAL. [38] The force of Coleman’s argument here is that section 46-18-305, MCA, formerly sectgion 95-2206.10, R.C.M. 1947, pro- vides that the sentencing court, in a death penalty case, can only consider those ‘‘mitigating circumstances sufficiently substan- tial to call for lehiency.”” Coleman contends that such language limits the court’s discretion only to circumstances ‘‘sufficiently substantial’ and is not within the holding Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, that the sentencing body must not be precluded from considering any aspect of the defendant’s record or character as a mitigating factor. To state the converse of Coleman’s position cn this issve is to refute the argument. A sentencing court should not rely on “mitigating circumstances sufficiently substantial to call for le- niency.’’ The only limit placed upon the court’s discretion under setion 46-18-305, MCA, is that the mitigating factor must be substantial; that is, it must have some substance or weight. We cannot regard the statutory language requiring a sufficiently substantial mitigating factor as a limiting encroachment upon the discretion of the judge when he passes sentence in capital cases. 5. Whether Coleman’s Death Sentence is Disproportionate to His Crime, What is the Scope of this Court’s Review, and Col- eman’s request for a Further Review of Comparative Cases. We lump the foregoing issues raised on the petition for rehear- ing together because they can be more easily answered as one subject. First we refer again to the developments that occurred after the decision in Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, wherein it was held that a statutory system which allows the sentencing authority unbridled discretion in the process of imposing the death penalty violated the Eighth and Fourteenth Amendments. It was the Furman decision that brought about eventually the recodification of Montana’s law so as to replaced the mandatory death penalty with sentencing provisions which gave the sentenc- ing judge alternatives to follow in pronouncing sentence. Under - Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; and Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, it is clear that Furman does not require that all sentencing discretion of the trial court be eliminated if the statutory system provides adequate standards to guide the exercise of the discretion in sentencing in capital cases. Montana’s response was the adoption of sections 46-18-301-310, MCA, inclusive. Those sections guide the discretion of the District Court both as to aggravating circumstances and mitigating circumstances in passing sentence. The District Court may impose its sentence of death if it finds one or more of the ag- gravating circumstances described and also finds there are no mitigating circumstances sufficiently substantial to call for le- niency. Findings of fact are required of the District Court and automatic review by the Supreme Court in all death sentences is also provided. The duties of our Supreme Court with respect to death sentences is set forth in section 46-18-310, MCA. Under that statute, this Court shall determine: ‘“‘The supreme court shall consider the punishment as well as any errors enumerated by way of appeal. With regard to the sentence, the court shall deter- mine: ‘‘(1) whether the sentence of death was impos- ed under the influence of passion, prejudice, or any other arbitrary factor: ‘(2) whether the evidence supports the judge’s fin- ding of the existence or nonexistence of the ag- gravating or mitigating circumstances enumerated in 46-18-303 and 46-18-304; and ‘(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration.”’ Coleman makes two arguments respecting our review, (1) that we have not reviewed the “entire record’’ under section 46-18-308, MCA, because we have not reviewed, Coleman con- tends, the issues raised on his first appeal and (2) that we have not reviewed all the appropriate ‘‘similar cases’’ under section 46-18-310(3), MCA. Needless to say, when the matter came to this Court for automatic review after the death sentence was reimposed, there came with it not only the record of the resentencing, but the en- tire record of the trial. We also had before us the briefs and records that related to the first opinion. It should be understood, therefore, that in connection with the second opinion pro- mulgated June 20, 1979, supra, that we have in fact reviewed the entire record. -136- [39, 40] Further we see no reason to change our position with respect to the similar cases that we looked at in order to deter- mine whether or not the death sentence in Coleman’s case was disproportionate. We take our duty to be, in connection with whether a death sentence is disproportionate, that we should review the circumstances of the crime of which the defendant is ac- cused, and in the light of those circumstances, the judgement and the sentence thereupon imposed; and examine cases involving similar crimes, all for a single purpose, to make certain that as far as the defendant in this case, Coleman, is concerned, there has been no discriminatory action on the part of the sentencing judge, no abuse of discretion by the sentencing judge, and that the sentenc- ing judge has considered and applied fairly and without discrimination the applicable law. We find this to be true in this case. It should be understood that in the final analysis, the im- position of sentence is not one that this Court must undertake. That matter is still reserved under our statutes to the District Courts. There is a discretion vested in the District Court in capital cases as to whether the death penalty should be imposed. Once that discretion has been exercised, and if we find that it has been exercised fairly, indiscriminately and in accordance with the applicable statutes, then it must be upheld. the search for disproportionateness involves elements that consider the gravity of the crime, the brutality with which it may have been commit- ted and the factors, if any, which lead to a call for leniency. We look for the even-handed application of death Sentences without regard to sex, color, creed, or race, or any other discriminating consideration. When we find that this has occurred, as we find here, our course under the law is to uphold the decision of the District Court. 6. Hanging as Cruel and Unusual Punishment. (41, 42] Coleman’s contention here is that hanging, even if car- ried out exactly, so that death results from a broken neck, is cruel and unusual punishment. The State responds that there is no evidence in this case that shows that death from hanging, when properly carried out, is anything other than swift and immediate, or that hanging results -137- in any more suffering than that associated with electrocution or other modes of execution. Hanging is the only kind of execution provided by Montana statutes. The legislature has not seen fit to change it, although several attempts in recent years have been made to eliminate capital punishment altogether. In that limited sense, the legislature has made a choice to continue the present provisions. We have no power to change these settled provisions of the law, nor can we say that hanging is constitutionally cruel and unusual. 7. Disposition. This opinion in addition to our opinion handed down June 20, 1979, constitutes our decision in this case. Let remittitur be issued from this Court to the District Court for the purpose of resetting the execution date, and complying with our opinion and order pormulgated June 20, 1979. HASWELL, C.J., and DALY and HARRISON, JJ. concur. SHEA, Justice, concurring in part and dissenting in part: I concur in the conclusion reached by this Court that the so- called Sandstrom-type instruction given in this case was not er- ror. As the Court reasons, the instruction is substantially dif- ferent than that which was given in the Sandstrom case. On the other hand, I do not believe that it was a model instruction which should be given as a matter of course in criminal trials. One of the reasons this Court granted defendant’s petition for rehearing was to consider the impact of the decision of United States Supreme Court in Sandstrom v. Montana (1979), ——U.S.——, 99 S.Ct. 2450, 61 L.Ed.2d 39. We have, moreover, sinced hearing this case on petition for a rehearing, concluded that defendant Sandstrom is entitled to a new trial based on the opinion of the United States Supreme Court that we cannot do otherwise unless we find that beyond a reasonable doubt, the er- ror is harmiess. Using that standard, we could not determine that the error in giving the instruction was harmless. State v. Sand- strom (1978), Mont. 580 P.2d 106, 35 St.Rep 744. We therefore ordered a new trial. -138- Although the instruction given in defendant Coleman’s case was not a Sandstrom-type instruction, I believe that the court has omitted the strongest fact as to why the instruction, even assuming it was a carbon copy of that given in Sandstrom, was harmless error. The simple fact is that defendant Coleman testified that he was not present during the homicide; he had nothing to do with it; and, indeed, that he did not know that Nank planned to kill Miss Harstad. In essence, the defense was alibi. In Sandstrom, on the other hand, the defendant admitted the killing, but his defense was that he did not intend to kill. There is a world of difference in these two defenses and so is there a world of difference as to the potintial impact of a Sandstram- type instruction. In the Coleman case, Nank testified in lurid detail concerning his and defendant Coleman’s plan to kidnap, rape, and kill Miss Harstad. The jury was thus given two clear choices: To believe Coleman’s alibi defense and thus conclude that Nank alone plann- ed to and killed Miss Harstad; or, on the other hand, to believe Nank’s testimony which implicated Coleman in a deliberate design to kidnap, rape, and kill Miss Harstad. Nank’s testimony, com- bined with the corroborating evidence implicating Coleman in the crimes involved, is sufficient beyond a reasonable doubt, to per- mit a jury conclusion that Coleman was guilty of the crimes for which he was convicted. Under these circumstances, once the jury chose to believe Nank (which, of course, also implies a deter- mination that Coleman was lying), no presumption or no in- ference was needed to help the prosecution’s case along. For this reason, I have no trouble in concluding that even if the instruc- tion was a carbon-copy of the instruction forbidden by the Sand- strom case, the error, beyond a reasonable doubt, was harmless. The majority has embellished to an extent upon its original opi- nion concerning the other issues decided in the original case, and I emphasize that I do not agree with these statements and con- clusions. : In the last paragraph of its opinion here, the Court has stated that its Opinion dated June 20, 1979, together with the Opinion issued today, shall constitute the opinion in this.case. I dissented ow set ta a een -139- to the majority opinion and I state here that such dissent shall also constitute my views on the questions surrounding the im- position of the death penalty in this case. Nank’s bargain with the State saved his own life; but this very same bargain sealed Coleman’s date with the executioner. No court should sanction such disparate results arising from the commission of the same crimes. The tragedy of the senseless killing perpetrated by Nank and Coleman is only compounded by the senseless killing of Col- eman which this Court today sanctioned. — “R -140- 4. March 21, 1980. Order Denying Sentence Review (unreported) In the Supreme Court of the State of Montana No. 80-89 .STATE OF MONTANA EX REL. DEWEY EUGENE COLEMAN, Petitioner Vv. SENTENCE REVIEW DIVISION OF THE SUPREME COURT OF MONTANA, Respondent. ORDER ON APPLICATION FOR WRIT OF SUPERVISORY CONTROL In an original proceedings before this Court, relator Dewey Eugene Coleman petitions for a writ of supervisory control ad- dressed to the Sentence Review division of the Supreme Court. Coleman was found guilty of (1) déliberate homicide, (2) ag- gravated kidnapping, and (3) sexual intercourse without consent on November 14, 1975 and judgement was entered against him by the District Court, Sixteenth Judicial District, Rosebud Coun- ty, Montana. He was sentenced to hang on the aggravated kid- napping charge, to 100 years in prison for deliberate homicide, and 40 years on the intercourse charge. He has twice appealed to this Court. In the second appeal on June 20, 1979, in State v. Coleman, —Mont.—, 605 P.2d 1000, 36 St.Rep. 1134, we affirmed all such sentences, and later denied rehearing after oral argument in our decision found at (December 19, 1979), —Mont.—, 605 P.2d 1051, 36 St.Rep. 2237. Following the denial of his petition for rehearing, relator peti- tioned the Sentence Review Board applying for sentence review of all three sentences imposed upon him. On February 26, 1980, the Sentence Review Board denied such review. Thereupon the relator petitioned us in this cause asking us to order a review of his sentences by the Sentence Review Board. Relator’s contentions here are that the forms for sentence review were given to him by the Clerk of the District Court and -141- a deputy sheriff of Rosebud County, Montana; that his applica- tion for review was denied without argument or hearing; that he relied on the agents of the state who gave him instructions on how to file for review; that the statute (section 95-221, R.C.M. 1947) in effect at the time of his crime (since amended) provided for review; that review was granted in Montana to a similar defendant in State v. McKenzie (1977), 171 Mont. 278, 557 P.2d 1027; that two of his sentences entitle him to review; that this Court did not review similar cases when it reviewed his death sentence; and that he has been deprived of due process and the equal protection of the law. The review application by relator was denied by the Sentence Review Division on the ground of lack of jurisdiction. It pointed out that review of sentences is abailable only to persons sentenc- ed to a term of one year or more in the state prison, section 46-18-903, MCA, and that it had no jurisdiction to review death sentences. It also pointed to section 46-18-307, MCA, which pro- vides for automatic review of death sentences by the Supreme Court. We hold that the denial of review by the Sentence Review Divi- sion was correct. With respect to the death sentence, the only statutory agency with power to review is this Court. We have fulfilled our duties in that connection. It would not only be extra- statutory but an anomaly were we to hold that the conclusions of this Court on review of death sentences were subject to later review by the Sentence Review Division of this Court. At this moment the relator is under sentence of death for ag- gravated kidnapping. As long as that sentence remains in force, it would be a useless act for the Sentence Review Division to undertake review of the jail terms on the other two charges on which relator was convicted. Because we understood that relator intends to petition some federal court with respect to his death sentence, we will hold in abeyance his sentence review on the jail time until such time, if ever, as it would appear appropriate to allow such a review. THEREFORE, IT IS ORDERED: | 1. The relator’s petition for a writ of supervisory control in this cause is denied. -142- 2. This order is without prejudice if at some future date it ap- pears that his death sentence is no longer in force and an other- wise proper application for sentence review 1s made by relator. 3. Copies hereof shall be mailed by the Clerk of this Court to the relator’s attorneys of record, the Attorney general of the State of Montana, the County Attorney of Rosebud County, Montana, and the Clerk of the District Court of the Sixteenth Judicial District, Rosebud County, Montana. DATED this 21st Day of March, 1980. Dro Xi Phcgu nod Chief Justice -143- 5. Information as amended by District Court (DISTRICT COURT) (CAUSE) INFORMATION John S. Forsythe, County Attorney of Rosebud County, Mon- tana, deposes and says that on or about the 4th day of July, 1974, at Rosebud County, Montana, the above named defendant com- mitted the offense of: COUNT I: Deliberate homicide, a Felony, and COUNT II: Aggravated Kidnapping, a Felony, and COUNT III: Sexual Intercourse Without Consent, a Felony, as specified in Sections 94-5-102, 94-5-303, and 94-5-503, Revised Codes of Montana of 1947, as amended. The facts constituting the offense are: Count I: That the defendant purposely and knowingly caused the death of another human being, to-wit: Peggy Lee Harstad, while engaged in the commission of the following felonies: Kid- napping and Sexual Intercourse Without Consent, involving the use of physical force and violence against the said Peggy Lee Harstad. Count II: That the defendant knowingly and purposely and without lawful authority restrained another person, to-wit: Peggy Lee Harstad, by holding her in a place of isolation and by using physical force to facilitate the commission of a felony, to- wit: Sexual Intercourse Without Consent and for the purpose of inflicting bodily injury on and terrorizing the said victim, Peggy Lee Harstad, (the alleged actions of the defendant resulted in the death of Peggy Lee Harstad.) (Bracketed material and underlined material is amendment made by the Court on its own motion, after Coleman had entered his plea and over his objections.) Count III: That the defendant knowingly had sexual inter- course without consent, with a female not his spouse, to-wit: Peggy Lee Harstad and inflicted bodily injury upon the said Peggy Lee Harstad in the course of committing sexual inter- course without consent. 6. Montanas New Death Laws Enacted by Ch 338, Laws of 1977 Effective July 1, 1977 Part 3 Death Penalty 46-18-301. Hearing on imposition of death penalty. When a defendant is found guilty of or pleads guilty to an offense for which the sentence of death may be imposed, the judge who presided at the trial or before whom the guilty plea was entered shall conduct a separate sentencing hearing to determine the ex- istence or nonexistence of the circumstances set forth in 46-18-303 and 46-18-304 for the purpose of determining the sentence to be imposed. The hearing shall be conducted before the court alone. 46-18-302. Evidence that may be received. In the sentencing hearing, evidence may be presented as to any matter the court considers relevant to the sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, and mental and physical condi- tion, and any other facts in aggravation or mitigation of the penalty. Any evidence the court considers to have probative force may be received regardless of its admissibility under the rules governing admission of evidence at criminal trials. Evidence ad- mitted at the trial relating to such aggravating or mitigating cir- cumstances shall be considered without reintroducing it at the sentence proceeding. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death. 46-18-303. Aggravating circumstances. Aggravating cir- cumstances are any of the following: (1) The offense was deliberate homicide and was committed by a person serving a sentence of imprisonment in the state prison. (2) The offense was deliberate homicide and was committed by a defendant who had been previously convicted of another deliberate homicide. -145- (3) The offense was deli ici ve tana s deliberate homicide and was committed (4) The offense was deliberate homici d , me gig lying in wait or ack ae an eee e offense was deliberate homicide and | mmi was CO a part of a scheme or operation which, if completed ee poe It pr a of more than one person. -_ e offense was deliberate homicide i i as defined . tion (1)(a) of 45-5-102, and the victim was a sedi aie eevee bins performing his duty. Hs 7) The offense was i i i PR ates: eres kidnapping which resulted in 46-18-304. Mitigating circ itigating ci | a any of de ee a umstances. Mitigating circumstances 1) The def ignifi i i ped endant has no significant history of prior criminal (2) The offense was committed whil ) e the defend ue influence of extreme mental or emotional ssn he = (3) The defendant acted under extreme duress or under th Bay ge w domination of another person. 4 ) e capacity of the defendant to appreciate the criminali of his conduct or to conform his conduct to the ehnchnwssnengae law was substantially impaired. << (5) The victim was a partici i ; ccomasial homie participant in the defendant’s conduct or (6) The defendant was an accomplice i mmi plice in an offense commi "an ae Bes and his participation was relatively — efendant, at the time of issi im wren til Chaar veces e of the commission of the crime, (8) Any other fact exists in mitigati igation of the penalty. oe Effect of aggravating and mitigating