COLEMAN v STATE
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No. 81-115 IN THE SUPREME COURT OF THE STATE OF MOEJTANA 1981 DEWEY EUGENE COLEMAN, Petitioner and Appellant, -vsSTATE OF MONTANA, Respondent and Respondent. Appeal from: District Court of the Sixteenth Judicial District, In and for the County of Rosebud, The Honorable A. B. Martin, Judge presiding. Counsel of Record: For Appellant: Moses Law Firm, Billings, Montana Charles Moses argued, Billings, Montana . - For Respondent: Hon. Mike Greely argued, Attorney General, Helena, Plontana John Maynard argued, Asst. Atty. General, ~ e l e n a ; Montana John S. Forsythe argued, County Attorney, Forsyth, Montana Submitted: April 29,' 1981 Decided :AUG Filed: .4UG 1 8 1981 2 8 1981 Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d the Court. t h e Opinion of Coleman a p p e a l s from a Rosebud C o u n t y D i s t r i c t C o u r t d i s m i s s a l of h i s p e t i t i o n f o r p o s t - c o n v i c t i o n relief. Title 4 6 , C h a p t e r 2 1 , Montana Code A n n o t a t e d . None o f appeal the a r e based cause. i s s u e s p r e s e n t e d by p e t i t i o n e r in the underlying Therefore, the facts c o n v i c t i o n f o r t h e d e a t h of recited. f u l l t e x t of A f a c t s of the surrounding on t h i s criminal Coleman's Peggy Lee H a r s t a d w i l l n o t be t h e s e f a c t s c a n be found i n our d e c i s i o n o f a n e a r l i e r a p p e a l , S t a t e v . Coleman ( 1 9 7 8 ) , 1 7 7 Mont. 1, 5 7 9 P.2d 732. O p e r a t i v e p r o c e d u r a l f a c t s w i l l be d i s c u s s e d w i t h r e f e r e n c e t o s p e c i f i c i s s u e s o f f e r e d by t h e petitioner. Petitioner Coleman presents eight issues for r e s o l u t i o n by t h i s C o u r t : 1. Is p o s t - c o n v i c t i o n r e l i e f a new c i v i l a c t i o n o r a c o n t i n u a t i o n of t h e p r e v i o u s c r i m i n a l c a u s e ? 2. S h o u l d t h e j u d g e h a v e r e c u s e d h i m s e l f when h i s t e s t i m o n y is r e q u i r e d a s t o c e r t a i n c l a i m e d v i o l a t i o n s ? 3. Is petitioner not entitled to post-conviction r e l i e f because he h a s been s e n t e n c e d t o d e a t h ? 4. Are c l a i m s o f c o n s t i t u t i o n a l v i o l a t i o n s b a r r e d by res judicata because t h e y were d e c i d e d i n e a r l i e r Coleman appeals? 5. properly Were t h i r t e e n o f C o l e m a n ' s c o n s t i t u t i o n a l c l a i m s dismissed because "they include vague new a l l e g a t i o n s , t h e y a r e t o o vague t o s t a t e new c l a i m s , o r a r e unsupported by authority and therefore barred by res - judicata"? 6. Were seven of Coleman's constitutional claims properly dismissed either because inapplicable distinguishable to it from the "new authority petitioner's leaving the case claims is cited or clearly barred res by judicata"? 7. Were five of Coleman's constitutional claims waived " b e c a u s e he f a i l e d t o r a i s e them i n h i s d i r e c t a p p e a l and b e c a u s e t h e y a r e w i t h o u t m e r i t " ? POST-CONVICTION RELIEF AS CIVIL OR C R I M I N A L ACTION I. T h i s Court r e c o g n i z e s t h e unique n a t u r e of t h e p o s t conviction remedy. Montana law does not label the proceeding a s e i t h e r c i v i l or c r i m i n a l , although t h e chapter providing post-conviction procedure title. Title is in Chapter 21, relief 46, the criminal Montana Code Annotated. The Montana p r o v i s i o n s o f s e c t i o n 46-21-101 a r e d e r i v e d from t h e Uniform P o s t C o n v i c t i o n P r o c e d u r e MCA, A c t and a r e e s s e n t i a l l y s i m i l a r U.S.C. that 52255). an The action under t o the federal statute United L.Ed.2d States 407. (28 f e d e r a l c o u r t s have c o n s i s t e n t l y h e l d 28 U.S.C. S2255 is a civil (1959), 358 U.S. 415, 79 action, See H e f l i n indepe n d e n t of t h e o r i g i n a l c r i m i n a l c o n v i c t i o n . v. e t seq., S.Ct. 451, 3 The same r u l e h a s been a d o p t e d i n o t h e r s t a t e s which h a v e a d o p t e d t h e u n i f o r m a c t . C l a r k v. State (1969), 92 I d a h o 827, 452 P.2d 54. In those s t a t e s with similar s a r i l y d e r i v i n g from t h e uniform a c t , consistent civil in S t a t e v. in their nature Hannagan and view that provisions not t h e c o u r t s have been post-conviction independent of neces- the ( A l a s k a 1 9 7 7 ) , 559 P.2d relief criminal 1059; is action. Noble v. State (1973), (1965), Richardson State 109 A r i z . 194 Kan. ( 1 9 6 8 ) , 79 N . M . 450, 1 9 6 5 ) , 351 F.2d (8th Cir. 87 S . C t . 537, 98, 17 L.Ed.2d 514 471, 444 P.2d 399 P.2d 458; P.2d 961; 799; Ill.App.3d 706, 1 9 5 9 ) , 324 S.W.2d 332 v. Sigler 385 U.S. 853, (held only t h a t post-conviction a p p l i c a t i o n s a r e c i v i l i n n a t u r e ) ; People v. 30 v. Smith v. Noble 673, c e r t . d e n i e d , 81, State 411; N.E.2d State Jones (1975), v. Smith (Mo. 707; T o l a r v . S t a t e ( F l a . 1 9 6 7 ) , 1 9 6 So.2d 1. t h i s is n o t i n t e n d e d t o be a n o t h e r Clearly, appeal from a criminal aimed a t v a c a t i n g , There but a separate c i v i l action s e t t i n g aside or correcting a sentence. i s no Montana post-proceeding case, form o f case interpreting petition, but the the nature proceeding of could the be c l o s e l y analogized t o t h a t seeking a w r i t of habeas corpus which t h i s Court decided proceeding. P. i n 1927 was a n independent c i v i l A u g u s t v . B u r n s ( 1 9 2 7 ) , 79 Mont. 198, 213, 255 737, 741. I t i s i m p o r t a n t t o n o t e t h a t w e do n o t h e r e i n t e n d t o erode the fundamental principle discussed below that the s e n t e n c i n g c o u r t is t h e p r o p e r c o u r t f o r t h e p o s t - c o n v i c t i o n petition. W a r e mindful t h a t a p a r t y t o a c i v i l a c t i o n is e e n t i t l e d t o two s u b s t i t u t i o n s of p r e s i d i n g j u d g e s . 3-1-801-4, MCA ( a d o p t e d by o r d e r o f 29, 1 9 7 6 , 34 S t . R e p . post-conviction provisions of 26). relief the is t h i s C o u r t on December However, b e c a u s e a n a p p l i c a n t f o r directed post-conviction p e t i t i o n in t h i s Court or Section by the statute more to specific bring the i n t h e c o u r t t h a t s e n t e n c e d him, w e f i n d t h a t t h e two j u d g e d i s q u a l i f i c a t i o n g r a n t o f s e c t i o n 3-1-801-4, MCA, is unavailable to the post-conviction petitioner. In Montana, when a general is statute in c o n f l i c t with a s p e c i f i c a c t , the s p e c i f i c s t a t u t e w i l l take precedence. S e c t i o n 1-2-102, ( 1 9 5 7 ) , 1 3 2 Mont. W e I n Re C o l e m a n ' s MCA; 339, 317 P.2d 880. hold that the Montana is civil in nature procedure Estate underlying criminal cause. post-conviction and relief independent of the W w i l l proceed t o consider t h e e i s s u e s r a i s e d on t h e a p p e a l t o t h i s C o u r t . Coleman c o n t e n d s t h a t i t was e r r o r t o d e n y v a r i o u s o f h i s r e q u e s t s w i t h o u t a n I t is n o t e r r o r t o d e n y an a p p l i c a t i o n evidentiary hearing. for post-conviction the allegations r e l i e f w i t h o u t an e v i d e n t i a r y h e a r i n g i f are without e n t i t l e the petitioner merit or to relief. would Clark v. otherwise State, not supra; T r a m e l v . S t a t e ( 1 9 6 8 ) , 92 I d a h o 6 4 3 , 448 P.2d 649; D o n n e l l y v. S t a t e ( A l a s k a 1 9 7 3 ) , 516 P.2d 396 ( a l l e g a t i o n s in post- c o n v i c t i o n p e t i t i o n were t o o vague and e v i d e n t i a r y h e a r i n g ) ; Widermyre v . P.2d 885; People v. Lyons i l l u s o r y t o warrant S t a t e ( A l a s k a 1 9 6 9 ) , 452 ( 1 9 7 8 ) , 196 Colo. 384, 585 P.2d 916; Cook v . S t a t e ( 1 9 7 6 ) , 220 Kan. 223, 552 P.2d 9 8 5 . The decision post-conviction to relief admit or deny an application for i s a d i s c r e t i o n a r y o n e and o n e t h a t w i l l n o t be d i s t u r b e d by t h i s C o u r t a b s e n t a c l e a r a b u s e o f discretion. 22 A r i z . A p p . 0r.App. S e c t i o n 46-21-201, 330, 527 P.2d MCA; S t a t e v. Ybarra ( 1 9 7 4 ) , 107; Brudos v . Cupp ( 1 9 7 7 ) , 3 1 25, 569 P.2d 680; S u l l i v a n v . S t a t e ( 1 9 7 7 ) , 222 Kan. 222, 564 P.2d 455. 11. RECUSAL OF THE SENTENCING J U D G E Coleman n e x t m a i n t a i n s t h a t t h e d i s t r i c t j u d g e s h o u l d have recused himself as presiding judge over his petition for post-conviction the sentencing relief judge post-conviction . i n l i g h t o f t h e f a c t t h a t h e was Petitioner proceeding, the observes sentencing that in judge a would l i k e l y be c a l l e d t o t e s t i f y a s t o , i n t e r a l i a , t h e p r o p r i e t y of t h e death sentence. C i t i n g 46 Am.Jur .2d J u d g e s , S91 a t 1 5 8 , Coleman s u b m i t s t h a t a j u d g e s h o u l d e x c u s e h i m s e l f a s a m a t t e r of c o u r s e i f witness. i t a p p e a r s t h a t h e may be c a l l e d a s a W disagree. e Coleman f a i l s t o r e c o g n i z e t h e c o m p e l l i n g p u r p o s e and policy considerations ( s e c t i o n 46-21-103, post-conviction behind portion of the statute which d i r e c t s t h a t a p e t i t i o n f o r MCA) relief that be conviction or t h i s Court. filed in either the court S e e a l s o s e c t i o n 46-21-101, .. ("may p e t i t i o n t h e c o u r t which imposed t h e s e n t e n c e of MCA ."). H i s t o r i c a l l y , having t h e s e n t e n c i n g judge p r e s i d e a t t h e s u b s e q u e n t p r o c e e d i ng h a s been e a r n e s t l y advocated f o r the following reasons: reduces (1) i t the burden on the D i s t r i c t C o u r t a t t h e p l a c e of c o n f i n e m e n t ; ( 2 ) it reduces the the cost of the proceeding since l i k e l y t o be c a l l e d a r e probably trial occurred; familiar with surrounding Post (3) the t h e t o t a l i t y of the Conviction important and, case. was of in the witnesses l o c a l e where t h e convicting is court more t h e f a c t s and c i r c u m s t a n c e s Commissioners' Procedure consideration most §3 Comment, (1974). enunciated Court J u s t i c e Donaldson i n S t i l l v . 11 U . L . A . Still by another Idaho Supreme S t a t e ( 1 9 7 4 ) , 95 I d a h o "Although it d o e s n ' t m a t t e r whether t h e p r o c e e d i n g is denominated a s one f o r habeas c o r p u s o r f o r p o s t - c o n v i c t i o n r e l i e f , i t is s t i l l n e c e s s a r y t h a t t h e p r o c e d u r e s of t h e Uniform P o s t - C o n v i c t i o n P r o c e d u r e Act b e followed. The A c t was d e s i g n e d t o q i v e t h e d i s t r i c t c o u r t w h i c h made t h e i ..................................... n i t i a l d e t e r m i n a t i o n s a chance t o c o r r e c t anv mistakes or i r r e q u l a r i t i e s t h a t occurred i n t h a t court. In addition, t h a t court has b e f o r e i t a l l t h e f a c t s r e q u i r e d t o make s u c h a determination. f here fore, t h e a p p l i c a t i o n o r p e t i t i o n f o r r e l i e f m u s t be f i l e d i n t h e d i s t r i c t c o u r t where t h e c o n v i c t i o n o c c u r r e d . I . C . § 19-4902." (Emphasis added.) This is Court also judge of conviction court should petitioner the shows t h a t t h e j u d g e view that only recuse the himself postif the is t h e source of m a t e r i a l evidence otherwise unobtainable. A t r i a l judge's f a m i l i a r i t y with a case does not automatically witness in post-conviction ( 1 9 6 6 ) , 160 Colo. make proceedings. him a material Bresnahan v. 455, 418 P.2d 1 7 1 , 22 A.L.R.3d Luby 1193. The Bresnahan c o u r t a l s o emphasized t h e i m p o r t a n c e of t h e t r i a l judge's f a m i l i a r i t y with t h e c r i m i n a l c a s e which i s b e i n g c o l l a t e r a l l y a t t a c k e d by t h e c i v i l a c t i o n . The c a s e a t b a r involved briefs, thousands of p a g e s of testimony, motions and t r i a l c o u r t r e c o r d s . W a r e mindful of e t h e d e l a y and burden administration justice on the would o c c u r himself efficient if another or herself post-conviction justified by unavailability of s e n t e n c i n g judge In this judge were r e q u i r e d to which familiarize with t h i s record for the purposes of a evidentiary hearing. the of strongest evidence Such d e l a y c a n o n l y be showing of sought t o be materiality adduced and from t h e . case, petitioner never makes it entirely c l e a r t o t h i s C o u r t j u s t what t e s t i m o n y h e hoped t o e l i c i t from the district judge. Abstract excursions into the m e n t a l p r o c e s s e s o f t h e s e n t e n c i n g j u d g e do n o t j u s t i f y t h e p r o forma r e c u s a l of the case. a j u d g e who i s f u l l y a c q u a i n t e d w i t h I t a p p e a r s t h a t a t b e s t p e t i t i o n e r was a t t e m p t i n g to embark on testimony a fishing about the trip, hoping fairness of to the d i s c o v e r y p r o c e d u r e would n o t b e uncover damaging sentence. allowed Such a w i t h any w i t n e s s b u t i s e s p e c i a l l y s u s p e c t when d i r e c t e d a t t h e t r i a l j u d g e . S e e Moore v . P e o p l e ( 1 9 7 1 ) , 174 C o l o . 570, 485 P.2d 1 1 4 . W e find, compelling therefore, testimony of should also s h o u l d be the of in preside sentencing a over be itself and specific from and the that i n t h e c o u r t of judge preside The s t a n d a r d o f sentencing a reasons the t r i a l petition for post- lends credence t o t h i s it c a n be e a s i l y i n f e r r e d t h a t t h e providing filed proceeding. adduced The A c t reasoning, legislature, to sought some f o r many s u b s t a n t i a l conviction r e l i e f . l i n e of unless t h e s e n t e n c i n g j u d g e and s u c h e v i d e n c e c a n be f o u n d nowhere e l s e , judge is evidence that judge's a post-conviction conviction, over proof the petition intended t h a t post-conviction regarding the necessity testimony is high; only the s t r o n g e s t showing o f m a t e r i a l i t y and u n a v a i l a b i l i t y w a r r a n t s recusal. Cir. S e e I n R e C o n t i n e n t a l V e n d i n g Machine C o r p . 1976), tioner for 543 F.2d recusal 986. of the The reasons trial judge (2nd a d v a n c e d by p e t i were simply not s u f f i c i e n t t o j u s t i f y a s u b s t i t u t i o n of judges. 111. APPLICABILITY OF POST-CONVICTION CONVICTIONS PROCEDURE TO CAPITAL I n r e g a r d t o t h e t h i r d i s s u e , s e c t i o n 46-21-101, recites in applicable part: " C i r c u m s t a n c e s i n which v a l i d i t y o f s e n t e n c e may be c h a l l e n q e d . A p e r s o n adTudged g u i l t y o f an o f f e n s e i n a c o u r t o f r e c o r d who h a s no a d e q u a t e remedy o f a p p e a l may p e t i t i o n t h e c o u r t which imposed t h e s e n t e n c e , t h e supreme c o u r t , o r a n y j u s t i c e o f t h e supreme court t o vacate, s e t aside, or correct the . . . MCA, sentence." T h i s Court has n o t s p e c i f i c a l l y addressed t h e quest i o n of whether c a p i t a l l y - s e n t e n c e d defendants a r e e n t i t l e d t o t h e p r o t e c t i o n s of t h e post-conviction whether t h e a u t o m a t i c s e n t e n c e r e v i e w s t a t u t e , s e c t i o n 46- 18-307 e t s e q . , relief. s t a n d s i n t h e p l a c e of post-conviction MCA, W e a r e a w a r e o f t h e l a n g u a g e o f Mr. J u s t i c e S h e e h y i n S t a t e v. 1006, r e l i e f s t a t u t e , or 36 S t . R e p . 100 S . C t . - Mont. Coleman ( 1 9 7 9 ) , 1134, 2952, 1135, cert. , L.Ed.2d , denied, 605 P.2d 1000, - U.S. 1 w h e r e i n he w r i t e s : " B e c a u s e t h e r e v i e w c o n d u c t e d by t h i s C o u r t [pursuant t o t h e automatic review p r o v i s i o n s o f s e c t i o n 46-18-307 t h r o u g h s e c t i o n 46-183 1 0 , MCA] s t a t u t o r i l y s t a n d s i n p l a c e o f a n y r e c o u r s e t o t h e S e n t e n c e Review D i v i s i o n , t h e c o m p l e t i o n o f t h i s r e v i e w w i l l mark t h e end o f s t a t e a c t i o n upon t h i s c a u s e , e x c e p t i n g a n y a c t i o n upon a p e t i t i o n f o r r e h e a r i n g . " (Emphasis added. ) But c f . , S t a t e v . McKenzie ( 1 9 7 8 ) , 1 7 7 Mont. That language, a s noted, 280, 322, 581 only specifically pertains t o t h e s e n t e n c e r e v i e w p r o c e d u r e and o n l y g e n e r a l l y c o u l d i t be interpreted to represent post-conviction procedure. a bar to the utilization The p o s t - c o n v i c t i o n s t a t u t e does n o t l i m i t its p r o v i s i o n s t o noncapitally-sentenced nor does t h e automatic review s t a t u t e herald e x c l u s i v e remedy. inferred involved. from the of persons, itself a s an Such a n i n t e r p r e t a t i o n would h a v e t o be nature of the statutes and policies W do n o t b e l i e v e t h a t s u c h a n i n t e r p r e t a t i o n c a n e be g i v e n t o t h e s e s t a t u t e s . In arriving a t t h i s conclusion, the post-conviction statute provided t h e p l a i n meaning o f s t a t u t e is p a r t i c u l a r l y p e r s u a s i v e . that "a person adjudged guilty of The an o f f e n s e " is e n t i t l e d t o a c c e s s t o t h e p o s t - c o n v i c t i o n p r o c e dure. If the legislature intended this statute to be a p p l i e d o n l y i n n o n c a p i t a l s e n t e n c e s , w e must c o n c l u d e t h a t i t would h a v e e x p r e s s l y done s o . The t e r m s o f " a p e r s o n " o r " a n y p e r s o n " and " a c r i m e " o r " a n y c r i m e " a r e g e n e r i c t e r m s e n c o m p a s s i n g a v e r y b r o a d s p e c t r u m o f a c t s and a c t o r s . l i m i t a t i o n on t h e g r a n t o f r e v i e w i n p o s t - c o n v i c t i o n d u r e s m u s t b e made by t h e l e g i s l a t u r e . t h e power of t h i s Court t o It Any proce- is c l e a r l y n o t i n t e r p r e t t h e l a w i n a manner contrary t o legislative intent. S e e American L i n e n S u p p l y Co. v . DOR ( 1 9 8 0 ) , , Mont. 1 7 0 7 ; Dunphy v . Anaconda Co. 617 P.2d 1 3 1 , 37 S t . R e p . ( 1 9 6 8 ) , 1 5 1 Mont. 7 6 , 438 P.2d Although t h e S t a t e a r g u e s p e r s u a s i v e l y r e g a r d i n g t h e l e g i s l a t u r e ' s i n t e n t r e g a r d i n g f i n a l i t y o f s e n t e n c e s , we do not believe that the "plain meaning" of the statute demonstrates its inapplicability t o capitally-sentenced offenders. interests, Though aware of these competing legislative t h i s C o u r t d o e s n o t h a v e t h e power t o g o beyond t h e c l e a r and u n e q u i v o c a l p r o v i s i o n s o f t h e l a w . IV. APPLICABILITY OF CONVICTION R E L I E F RES J U D I C A T A TO PETITION FOR POST- Montana l a w is b e r e f t of any d e c i s i o n on w h e t h e r t h e d o c t r i n e o f r e s j u d i c a t a is a p p l i c a b l e t o a p r a y e r f o r p o s t conviction r e l i e f . A s a g e n e r a l p r o p o s i t i o n , we h a v e h e l d : "The d o c t r i n e o f r e s j u d i c a t a s t a t e s t h a t a f i n a l judgment on t h e m e r i t s by a c o u r t o f competent j u r i s d i c t i o n is c o n c l u s i v e a s t o c a u s e s of a c t i o n o r i s s u e s t h e r e b y l i t i g a t e d , a s t o t h e p a r t i e s and t h e i r p r i v i e s , i n a l l o t h e r a c t i o n s i n t h e same o r a n y o t h e r j u d i c i a l t r i b u n a l of concurrent jurisdiction." Meagher Co. Water D i s t . v . W a l t e r ( 1 9 7 6 ) , 1 6 9 Mont. 358, 361, 547 P.2d 8 5 0 , The d o c t r i n e b a r s r e c o n s i d e r a t i o n o f a n i s s u e i f f o u r elements a r e present: b e t h e same; t h e same; " ( 1 ) t h e p a r t i e s or t h e i r p r i v i e s must ( 2 ) the subject-matter of t h e a c t i o n must be ( 3 ) t h e i s s u e s m u s t be t h e same, and m u s t r e l a t e t o t h e same s u b j e c t - m a t t e r ; and ( 4 ) t h e c a p a c i t i e s of the p e r s o n s m u s t be t h e same i n r e f e r e n c e t o t h e s u b j e c t - m a t t e r and t o t h e i s s u e b e t w e e n t h e m . " Brannon v . Lewis and C l a r k C o u n t y ( 1 9 6 3 ) , 1 4 3 Mont. 200, 207-208, A s i d e from t h e b a r 387 P.2d 706, 711. res judicata, of t h i s Court has consistently refused t o allow r e l i t i g a t i o n i n a c o l l a t e r a l proceeding of i s s u e s determined Q u i g g ( 1 9 7 6 ) , 1 6 8 Mont. C r i s t (1980), 1146, in 5 1 2 , 544 P.2d , Mont. some cases i n a d i r e c t appeal, by 441, I n Re and S p u r l o c k v . 614 P.2d 4 9 8 , 501, 37 S t . R e p . reaffirming the prior holdings. D i g i a l l o n a r d o v. B e t z e r ( 1 9 7 3 ) , 1 6 3 Mont. 1 0 4 , 1 0 5 , 515 P.2d 705. Accord, N.W.2d Orricer v. State 461. I n l i g h t of t h e d e a r t h , (1970), 8 5 S.D. 293, 181 i f n o t complete absence, of g u i d i n g Montana c a s e law i n t h i s r e g a r d , a r e v i e w o f t h e l a w a s i t h a s e v o l v e d and d e v e l o p e d w i t h r e g a r d t r3& k . the applica- b i l i t y o f r e s j u d i c a t a t o t h e F e d e r a l Act,-;;I..2-'U.S.C. S2255, w i l l aid. H i s t o r i c a l l y the p r i n c i p l e of seen t o apply t o w r i t s of relief under S21.5; cf Rev. S2255. ., K e l l e y , 1 (1975). res judicata was n o t habeas corpus or p e t i t i o n s f o r See, Sokol, Federal Habeas Corpus F i n a l i t y and H a b e a s C o r p u s , 78 W.Va. However, a new r u l e h a s been Law recognized r e g u l a t i n g s u c c e s s i v e f e d e r a l m o t i o n s on g r o u n d s p r e v i o u s l y h e a r d and d e t e r m i n e d . I n Sanders v. United S t a t e s ( 1 9 6 3 ) , 373 U.S. 1, 83 S . C t . 1 0 6 8 , 1 0 L.Ed.2d 148, t h e Court s t a t e d : " C o n t r o l l i n g w e i g h t may be g i v e n t o d e n i a l of a p r i o r a p p l i c a t i o n f o r f e d e r a l habeas corpus o r 52255 r e l i e f o n l y i f ( 1 ) t h e same g r o u n d p r e s e n t e d i n t h e s u b s e q u e n t a p p l i c a t i o n was d e t e r m i n e d a d v e r s e l y t o t h e a p p l i c a n t on t h e p r i o r a p p l i c a t i o n , ( 2 ) t h e p r i o r determinat i o n was on t h e m e r i t s , and ( 3 ) t h e e n d s o f j u s t i c e would n o t be s e r v e d by r e a c h i n g t h e m e r i t s of t h e su b s e q u e n t a p p l i c a t i o n . " 373 U.S. a t 1 5 . Where a t r i a l o r a p p e l l a t e c o u r t h a s d e t e r m i n e d t h e f e d e r a l p r i s o n e r ' s c l a i m , d i s c r e t i o n may i n a p r o p e r c a s e be e x e r c i s e d a g a i n s t t h e g r a n t o f a 52255 h e a r i n g . Where t h e trial decided or appellate court has considered and a f e d e r a l p r i s o n e r ' s c l a i m , i t may be o p e n t o t h e 52255 c o u r t t o determine t h a t , records, the Thornton v. on t h e b a s i s o f t h e m o t i o n s , prisoner United is States entitled to Cir. (D.C. no f i l e s and relief. See 1 9 6 6 ) , 368 F.2d 822 ( d i s s e n t i n g o p i n i o n of W r i g h t , J . ) . The r e s j u d i c a t a r u l e h a s now come t o a p o i n t i n i t s e v o l u t i o n where i t c a n be s a i d w i t h c e r t a i n t y t h a t a " g r o u n d for relief previously considered prisoner 's conviction attacking sentence cannot under be on a p p e a l from a f e d e r a l reconsidered 52255." 28 U . S . C . S . Wharton's Criminal Procedure, on a motion Torcia, S649 a t 401 ( 1 9 7 6 ) and c a s e s cited therein. Res j u d i c a t a c a n n o t be a p p l i e d i n s u c h a manner a s t o deprive Coleman of the right to file a post-conviction p e t i t i o n and t o u s e p o s t - c o n v i c t i o n p r o c e d u r e . However, res j u d i c a t a c a n be u s e d t o b a r t h e r e h e a r i n g o f i s s u e s a l r e a d y l i t i g a t e d under preserves judicial the the rule Montana in Sanders. post-conviction This interpretation remedy by requiring i n q u i r y i n t o t h e p r o p r i e t y o f t h e s e n t e n c e and o f the detention, while preventing abuse of t h e p r o c e d u r e by relitigation of insufficient. a claim previously A s discussed considered and found i n S a n d e r s , r e l i t i g a t i o n would mean a w a s t e o f j u d i c i a l e f f o r t , r i s k i n g a c l u t t e r i n g o f t h e court's limited resources with decided on merits. the As collateral one court attacks already put it, "judicial economy d i c t a t e s r e s t r i c t i v e l i m i t a t i o n s on r e r u n s . " United S t a t e s e x r e l . Townsend v . Twomey ( 7 t h C i r . 1 9 7 1 ) , 452 F.2d 3 5 0 , 3 5 7 , c e r t . d e n i e d , 409 U.S. beyond S a n d e r s and 854. Some s t a t e s h a v e g o n e statutorily prohibit c o l l a t e r a l a t t a c k on a s i n g l e c o n v i c t i o n . C. 3 8 , 9 122-3 Tit. ( 1 9 6 4 ) ; M0.Sup.Ct.R. 7 , S 7-408.3 We, more than one See 111.Ann.Stat. 2 7 . 2 6 ( d ) ; Wyo.Stat.Ann. (1963). therefore, adopt the criteria as W e a f f i r m t h e holding of p r e v i o u s l y quoted i n t h i s opinion. t h e D i s t r i c t Court t h a t Sanders the following twenty-seven issues h a v e b e e n c o n s i d e r e d p r e v i o u s l y and d e c i d e d by t h i s C o u r t and Coleman h a s a l l e g e d no new f a c t s o r l a w w i t h r e s p e c t t o t h e s e i s s u e s which r e q u i r e a d d i t i o n a l c o n s i d e r a t i o n s : F, G , H , I , J , L , M , N , P , R , S , T , V , W , Y , Z , A A , D D , G G , H H , 11, J J , K K , V. L L , MM, NN, and P P . VAGUENESS AS BAR TO EVIDENTIARY H E A R I N G The l o w e r because c o u r t d e n i e d t h i r t e e n of Coleman's c l a i m s t h e y were t o o vague to s t a t e new c l a i m s o r were u n s u p p o r t e d by a u t h o r i t y and w e r e , t h e r e f o r e , b a r r e d b y r e s judicata. The State argued in the District Court that " v a g u e new a l l e g a t i o n s " d o n o t p r e s e n t a p r o p e r b a s i s f o r review. W agree. e Vague r e h a s h i n g s o f i s s u e s p r e v i o u s l y a d j u d i c a t e d by a c o u r t of competent j u r i s d i c t i o n will n o t make u n w o r t h y claims magically meritorious. Naked a l l e g a t i o n s of injus- t i c e c a n n o t c o n s t i t u t e new g r o u n d s o r p r o v i d e any b a s i s f o r relief. P.2d Cf. 376. Hooker Again, v. ( 1 9 7 0 ) , 173 Colo. People the District Court petition are valid or merely previously decided Andrews v. Morris disguise. cert. denied, judgment discretion. P.2d 446 U.S. 949, t h i s Court w i l l Moreover, court's i n determining 477 t o t h e d i s c r e t i o n of we m u s t d e f e r 226, in this S e e Redd 925 v. (emphasizing conviction court to if the claims (Utah 1 9 8 0 ) , 101 S.Ct. made the issues in P.2d 816, 66 L.Ed.2d 254, 607 in 120. not disturb the post-conviction regard clear State great make absent ( 1 9 6 7 ) , 199 Kan. discretion initial v a l i d i t y and s u b s t a n c e o f c l a i m s ) a in abuse of 431, 429 the judgments post- regarding . W a f f i r m t h e h o l d i n g of t h e D i s t r i c t C o u r t t h a t t h e e following thirteen issues or claims a r e dismissed as res - j u d i c a t a b e c a u s e t h e vague new a l l e g a t i o n s do n o t a f f e c t t h e v a l i d i t y of t h e p r i o r d e t e r m i n a t i o n of t h i s Court: X, Q, U , VI. CC, EE, FF, 0 0 , QQ, RR, B, E, K, and X X . APPLICABILITY OF NEWLY DEVELOPED AUTHORITY W n e x t c o n s i d e r Coleman's c o n t e n t i o n e t h a t seven of h i s c l a i m s were n o t p r o p e r l y d i s m i s s e d on t h e g r o u n d s t h a t t h e new a u t h o r i t y c i t e d was e i t h e r distinguishable, inapplicable or c l e a r l y l e a v i n g t h e c l a i m s b a r r e d by r e s j u d i c a t a . C a s e s h a v e r e c o g n i z e d t h a t a 1t h o u g h p a r t i c u l a r i s s u e s have been a d d r e s s e d and d e t e r m i n e d a d v e r s e l y t o a p r i s o n e r on a direct consider appeal, a post-conviction such m a t t e r s where change i n t h e a p p l i c a b l e law. there court has may been nevertheless a substantial United S t a t e s v. Sorenson (D. N.Y. 1 9 7 0 ) , 308 F.Supp. Cir. 1975), 526 F . 2 d 1 2 6 8 ; Robson v . 1145. As U n i t e d S t a t e s (1st t o t h e s e s e v e n claims, we n o t e t h a t no e v i d e n t i a r y h e a r i n g i s r e q u i r e d s i n c e t h e s e a r e questions of course, law o n l y which a r e i n v o l v e d . conclude inapplicable to States (D. 1968), Ky. 1967), changes 264 in case. the 698, reh. F.Supp.146, denied, law Robinson v. aff'd, 8 2 3 , c e r t . d e n i e d , 3 9 3 U.S. 2 1 L.Ed.2d 9 9 7 , 22 L.Ed.2d the petitioner's 394 F.2d 698, that A c o u r t may, of are United (6th Cir. 1057, 89 S.Ct. 393 U.S. 1124, 89 S . C t . 133. W e h a v e r e v i e w e d C o l e m a n ' s s e v e n c l a i m s and f i n d t h a t cases the therefore cited Coleman the affirm by are District W e distinguishable. Court's holding that the f o l l o w i n g s e v e n c l a i m s a r e b a r r e d b y r e s j u d i c a t a a s t h e new a u t h o r i t y c i t e d is i n a p p l i c a b l e o r c l e a r l y d i s t i n g u i s h a b l e : A, C, VII. TT, a n d W. D , 0 , BB, DISMISSAL ON GROUNDS OF WAIVER AND LACK OF MERIT The D i s t r i c t C o u r t h e l d t h a t f i v e o f C o l e m a n ' s claims w e r e d i s m i s s e d b e c a u s e h e f a i l e d t o r a i s e them on h i s d i r e c t appeal. claims The were procedure claims District without is in a new earlier Court further found Because the merit. civil remedy, proceedings p r e s e n t a t i o n a t t h i s time. the would However, that failure t o present not bar Richmond 433 U.S. 915, . ( A l a s k a 1 9 6 9 ) , 452 P . 2 d ( 1 9 7 7 ) , 114 A r i z . 97 S . C t . them from w e have reviewed t h e e r r o r f o r t h e c o u r t t o d e n y them s u m m a r i l y State five post-conviction c l a i m s and f i n d t h e same t o b e u n m e r i t o r i o u s . Widermyre v . the I t was not Sanders, supra; 885; S t a t e v. 1 8 6 , 560 P.2d 4 1 , c e r t . d e n i e d , 2988, 53 L.Ed.2d 1101; People v. Trujillo ( 1 9 7 6 ) , 190 C o l o . 497, 549 P.2d 1 3 1 2 ; Andrews v . Morris, supra. W a f f i r m t h e d i s m i s s a l by t h e D i s t r i c t C o u r t o f t h e e f o l l o w i n g c l a i m s on t h e b a s i s t h a t t h e y a r e w i t h o u t m e r i t : SS, U U , WW, Y Y , Two and Z Z . hearings attorney present, were noted with petitioner an6 his on t h e f o l l o w i n g d a t e s , J u n e 1 4 , 1978 and J u l y 1 6 and 1 9 , 1 9 7 8 . petitioner held, A t t h e J u n e 14 h e a r i n g , counsel for t o t h e c o u r t t h a t i n view of the fact a p r e s e n t e n c e r e p o r t had b e e n p r e p a r e d , h e was n o t p r e s e n t i n g an a d d i t i o n a l r e p o r t . The p r e s e n t e n c e r e p o r t c o n t a i n e d t h e i n f o r m a t i o n t h a t p e t i t i o n e r had n e v e r b e e n c o n v i c t e d o f a n y prior felony prior to the present charge. Counsel for p e t i t i o n e r noted: "May t h e r e c o r d show t h a t on b e h a l f o f t h e d e f e n d a n t , we a r e n o t g o i n g t o c a l l t h i s g e n t l e m a n [ p r o b a t i o n o f f i c e r Thomas L o f l a n d ] t o t h e stand a t t h i s time f o r examination. T h a t d o e s n o t mean we a g r e e w i t h t h e r e p o r t , s i m p l y t h a t we a r e n o t g o i n g t o c a l l him a s a witness. "THE COURT: Very w e l l . Now t h e announcement t h a t t h e defense does n o t intend t o produce any c a l l any w i t n e s s e s t o e s t a b l i s h any mitigating circumstances, the Court has b e f o r e it a l l m a t t e r s d u r i n g t h e c o u r s e of t h e t r i a l , heard t h e testimony r e l a t i n g t o t h e a g g r a v a t i n g c i r c u m s t a n c e s and a l s o some mitigating circumstances ... . . ." Thereafter, proposed Both t h e c o u r t requested each s i d e t o submit f i n d i n g s of the petitioner fact, and conclusions of t h e S t a t e having law and b r i e f s . submitted their b r i e f s and f i n d i n g s and c o n c l u s i o n s , t h e c o u r t h e l d a s e c o n d h e a r i n g on J u l y 1 0 , 1 9 7 8 . At judge his t h e beginning of the July submitted t o p e t i t i o n e r ' s findings and conclusions 10 h e a r i n g , the t r i a l c o u n s e l and S t a t e c o u n s e l and thereafter counsel for petitioner read mitigation. into the record a prepared statement in With t h i s r e c o r d b e f o r e u s , w e c a n n o t f a u l t t h e t r i a l c o u r t i n t h e s e n t e n c i n g of p e t i t i o n e r . the f i r s t hearing, Petitioner, a t did not t e s t i f y in mitigation, declined t o examine t h e o f f i c e r who p r e p a r e d t h e p r e s e n t e n c e r e p o r t , and was g i v e n a n o p p o r t u n i t y t o s u b m i t b o t h f u r t h e r b r i e f s on t h e s e n t e n c i n g and h i s p r o p o s e d f i n d i n g s and c o n c l u s i o n s . To now allege that he was denied due process and an o p p o r t u n i t y t o p r e s e n t h i s a r g u m e n t is w i t h o u t m e r i t . H e r e t h e t r i a l c o u r t was f a c e d w i t h some f o r t y - n i n e separate claims ( 1 9 4 6 ) , 329 U.S. for relief. 1 7 3 , 67 S . C t . While Carter 2 1 6 , 9 1 L.Ed. s t a t e s are free t o devise their v. Illinois 172, holds t h a t own s y s t e m s o f review of c r i m i n a l c a s e s , t h e s y s t e m , a s i l l u s t r a t e d i n t h i s c a s e , now a l l o w s p e t i t i o n e r two a p p e a l s , a r e s u l t n o t c o n t e m p l a t e d by the legislature. t r i a l judge, The J u l y 1 0 h e a r i n g indicates that the i n pronouncing s e n t e n c e , s t a t e d : " I n pronouncing s e n t e n c e I do want t h e p a r t i e s t o know t h a t t h i s i s e x t r e m e l y a g o n i z i n g f o r t h e c o u r t t o make. I have n o t looked a t t h e p o i n t s t h a t have been r a i s e d l i g h t l y , b u t many o f t h e a r g u m e n t s r a i s e d by t h e d e f e n s e , of c o u r s e have been c o n s i d e r e d h e r e t o f o r e , and t h e j u r y h a s f o u n d f r o m t h e f a c t u a l s t a n d p o i n t t h a t t h e d e f e n d a n t was g u i l t y , beyond a r e a s o n a b l e d o u b t , and I do not disagree with t h a t conclusion of t h e jury. One m i t i g a t i n g c i r c u m s t a n c e i s t h a t t h e defendant has n o t p r i o r t o t h i s t i m e been c o n v i c t e d o f any f e l o n y , b u t i n v i e w o f t h e e n o r m i t y o f t h e c r i m e c o m m i t t e d , and t h e c o u r t ' s f e e l i n g t h a t t h i s one c i r c u m s t a n c e d o e s n o t overcome t h e a g g r a v a t e d circums t a n c e s , I h a v e made t o t h e e f f e c t , w r i t t e n f i n d i n g s a s r e q u i r e d by l a w . Also I have made c o n c l u s i o n s and judgment which h a v e been f u r n i s h e d t o t h e d e f e n d a n t and t h e s t a t e a t t h i s t i m e , and I w i l l o n l y a t t h i s t i m e r e a d t h e c o u r t ' s c o n c l u s i o n s and j u d g m e n t . " The s e n t e n c e and judgment a r e a f f i r m e d . The D i s t r i c t C o u r t is d i r e c t e d t o s c h e d u l e a new d a t e f o r e x e c u t i o n . W concur: e 8L-Ld. q - i f i Q - 7 ~ Chief J u s t i c e / Justices ono or able"^. ~4 L D i s t r i c t Judge, s p l a c e o f Mr. ~ u s t i c kJ o h n C. Sheehy Mr. J u s t i c e Frank B . Morrison, J r . , d i s s e n t i n g : I respectfully dissent. The f i r s t problem w i t h t h i s c a s e i s t h a t t h e d e f e n d a n t ' s c o n v i c t i o n was based upon accomplice t e s t i m o n y which was n o t s u f f i c i e n t l y c o r r o b o r a t e d by i n d e p e n d e n t e v i d e n c e . The t r i a l c o u r t s h o u l d have d i r e c t e d a v e r d i c t i n d e f e n d a n t ' s b e h a l f a t t h e t i m e of t r i a l . I w i l l q u o t e e x t e n s i v e l y from t h e t r a n s c r i p t t o show t h a t t h e s t a t e ' s c a s e f a i l e d . The second p a r t of t h e d i s s e n t w i l l d e a l w i t h i m p o s i t i o n of t h e d e a t h p e n a l t y . That discussion concerns aggravating c i r c u m s t a n c e s v e r s u s m i t i g a t i n g c i r c u m s t a n c e s and t h e c o n d i t i o n s under which t h e d e a t h p e n a l t y may be imposed. The d e f e n d a n t , Dewey Eugene Coleman, and R o b e r t Nank met a t t h e V e t e r a n ' s H o s p i t a l i n S h e r i d a n , Wyoming. was b e i n g t r e a t e d f o r d e p r e s s i o n . Coleman Nank had a h i s t o r y of mental i l l n e s s . Coleman and Nank were d i s c h a r g e d from t h e V e t e r a n ' s H o s p i t a l and came t o Montana on Nank's m o t o r c y c l e . They " r a n o u t of g a s " between Roundup, Montana and F o r s y t h , Montana, d u r i n g t h e e v e n i n g h o u r s of J u l y 4 , 1974. Coleman t e s t i f i e d t h a t they unsuccessfully t r i e d t o hitchhike t o the n e a r e s t town f o r t h e p u r p o s e of s e c u r i n g some g a s o l i n e . It began t o g e t d a r k and Coleman s t a t e d t h a t , s i n c e Coleman was b l a c k , he was i m p a i r i n g t h e i r a b i l i t y t o o b t a i n a r i d e and Nank d i r e c t e d him t o h i d e h i m s e l f . Thereafter, according t o Coleman, Nank was a b l e t o s t o p a v e h i c l e and o b t a i n a r i d e . Coleman t e s t i f i e d t h a t Nank l e f t w i t h t h e d r i v e r and headed i n t h e d i r e c t i o n of F o r s y t h . Coleman s a i d t h a t Nank r e t u r n e d d r i v i n g t h e c a r sometime l a t e r and t h a t he was w e t and emotionally upset. Nank i n s t r u c t e d Coleman t o remove t h e i r t h i n g s from t h e m o t o r c y c l e and come w i t h him. Coleman obeyed. They d r o v e , what was l a t e r d e t e r m i n e d t o be t h e H a r s t a d v e h i c l e , p a s t F o r s y t h i n t h e d i r e c t i o n o f Rosebud. Nank s t o p p e d between F o r s y t h and Rosebud and p i c k e d up something which a p p e a r e d t o be a b l a n k e t . a t a b a r i n Rosebud and o b t a i n e d two Cokes. Coleman t h a t he had k i l l e d a woman. He a l s o s t o p p e d He a d v i s e d Nank headed back toward F o r s y t h and t h e H a r s t a d v e h i c l e " r a n o u t of g a s " . According t o Coleman, Nank went i n t o a f i e l d and h i d something. Coleman was d i r e c t e d t o c a r r y a woman's p u r s e , which he d i d . Coleman looked i n t h e p u r s e , found no money and, p u r s u a n t t o Nank's d i r e c t i o n s , threw t h e p u r s e i n t o a c u l v e r t . The two t h e n walked t o F o r s y t h , a r r i v i n g t h e r e i n t h e e a r l y morning hours. Nank o b t a i n e d g a s o l i n e i n a can and h i t c h h i k e d back t o t h e m o t o r c y c l e . Nank r e t u r n e d f o r Coleman and t h e y l e f t . Coleman s t a t e d t h a t t h e y e v e n t u a l l y went t o B o i s e , I d a h o , where t h e y r e n t e d a n a p a r t m e n t and l i v e d u n t i l t h e t i m e of their arrest. Coleman s t a t e d t h a t he d i d n o t r e p o r t Nank t o t h e a u t h o r i t i e s b e c a u s e h e was a f r a i d of Nank and b e c a u s e he was a f r a i d of b e i n g i m p l i c a t e d . Nank's t e s t i m o n y d e p a r t s from Coleman's a t t h e p o i n t t h a t t h e v i c t i m , Peggy H a r s t a d , s t o p p e d t o g i v e Nank a r i d e . I n c o n t r a s t t o Coleman's t e s t i m o n y t h a t Nank l e f t a l o n e w i t h t h e young woman, Nank t e s t i f i e d t h a t Coleman went w i t h him.' He t e s t i f i e d t h a t Coleman was s e a t e d i n t h e r i g h t f r o n t s e a t and h e , Nank, was i n t h e middle n e x t t o t h e d r i v e r . Nank s t a t e d t h a t a s t h e y proceeded toward F o r s y t h he asked Peggy H a r s t a d t o s t o p t h e v e h i c l e s o t h a t he c o u l d u r i n a t e . He s t a t e d t h a t he and Coleman g o t o u t of t h e v e h i c l e and u r i n a t e d b e s i d e i t . They t h e n r e t u r n e d t o t h e v e h i c l e and headed towards F o r s y t h . A s t h e y approached F o r s y t h , Nank t e s t i f i e d t h a t he t u r n e d t h e i g n i t i o n key o f f and maneuvered t h e v e h i c l e t o t h e s i d e of t h e r o a d . Nank t i e d Peggy ~ a r s t a d ' s hands t o g e t h e r w i t h a y e l l o w nylon r o p e . He removed h e r c l o t h i n g e x c e p t f o r h e r b l o u s e . He a t t e m p t e d t o have s e x u a l i n t e r c o u r s e with her b u t could n o t maintain an e r e c t i o n . He t e s t i f i e d t h a t Coleman t h e n " g o t i n t h e b a c k s e a t " w i t h Peggy H a r s t a d and had s e x u a l i n t e r c o u r s e w i t h h e r w h i l e Nank, now s t a n d i n g on t h e o u t s i d e o f t h e c a r , h e l d o n t o h e r f o o t . Nank t e s t i f i e d t h a t he t h e r e a f t e r d r e s s e d t h e v i c t i m and t h e y d r o v e around d e c i d i n g what t o do. E v e n t u a l l y Nank s t a t e d t h a t Coleman d e c i d e d t o k i l l Peggy H a r s t a d . Nank t h e n claimed t h a t he threw t h e v i c t i m o v e r h i s s h o u l d e r , w i t h h e r hands s t i l l t i e d , and headed down toward t h e Yellowstone River. He s t a t e d t h a t Dewey Coleman h i t h e r on t o p of t h e head c o n t i n u o u s l y w i t h a m o t o r c y c l e h e l m e t and t h a t t h e n Coleman a t t e m p t e d t o s t r a n g l e h e r w i t h t h e y e l l o w nylon rope. H e s t a t e d t h a t when t h i s d i d n o t k i l l t h e v i c t i m t h a t h e , Nank, h e l d h e r head under w a t e r i n t h e Yellowstone R i v e r u n t i l s h e drowned. Nank a l s o r e l a t e d how h e and Coleman went t o B o i s e , I d a h o , o b t a i n e d a n a p a r t m e n t and c o n t i n u e d t o l i v e u n t i l t h e t i m e of t h e a r r e s t . Following t h e i r a r r e s t , Nank and t h e d e f e n d a n t were i n t e r r o g a t e d by law e n f o r c e m e n t o f f i c i a l s i n B o i s e , Idaho. Coleman m a i n t a i n e d h i s i n n o c e n c e , b u t Nank c o n f e s s e d and a g r e e d t o t e s t i f y a g a i n s t Coleman. The t e s t i m o n y of a n accomplice i s viewed w i t h s u s p i c i o n b e c a u s e t h e r e i s a s t r o n g motive f o r l y i n g . In t h i s case a number of law e n f o r c e m e n t t e c h n i q u e s were used t o o b t a i n a c o n f e s s i o n from Nank. A p o l i c e o f f i c e r admitted t e l l i n g Nank, though i t was n o t t r u e , t h a t he had w i t n e s s e d a hanging and t h a t i t was gruesome. He f u r t h e r t o l d Nank, though i t was n o t t r u e , t h a t Coleman had c o n f e s s e d and blamed ~ a n k o r f t h e murder. Nank t h e r e a f t e r e x h i b i t e d a w i l l i n g n e s s t o c o n f e s s , b u t would o n l y do s o w i t h some a s s u r a n c e t h a t he would n o t hang. He was a s s u r e d by law e n f o r c e m e n t o f f i c i a l s t h a t t h e y would make e v e r y e f f o r t t o s e e t h a t he would n o t hang and Nank t h e r e a f t e r gave a c o n f e s s i o n i m p l i c a t i n g Coleman. Nank was c h a r g e d w i t h d e l i b e r a t e homicide, s e x u a l i n t e r c o u r s e w i t h o u t c o n s e n t , and a g g r a v a t e d k i d n a p p i n g . Only t h e l a t t e r o f f e n s e c a r r i e d t h e d e a t h p e n a l t y . Nank was p e r m i t t e d t o p l e a d g u i l t y and r e c e i v e n o n c a p i t a l s e n t e n c e s f o r d e l i b e r a t e homicide and r a p e . The a g g r a v a t e d k i d n a p p i n g c h a r g e , which c a r r i e d t h e d e a t h p e n a l t y , was h e l d i n abeyance u n t i l Nank t e s t i f i e d a g a i n s t Coleman a t t h e t r i a l . After Coleman's t r i a l t h e a g g r a v a t e d k i d n a p p i n g c h a r g e a g a i n s t Nank was d i s m i s s e d . I t i s o b v i o u s why a n a c c o m p l i c e ' s t e s t i m o n y must be viewed w i t h d i s t r u s t . Before a c r i m i n a l charge a g a i n s t a d e f e n d a n t c a n s u r v i v e a d i r e c t e d v e r d i c t and be s u b m i t t e d t o a jury, t h e r e must be i n d e p e n d e n t c o r r o b o r a t i n g e v i d e n c e i m p l i c a t i n g t h e d e f e n d a n t i n t h e crime. That corroborating e v i d e n c e "must r a i s e more t h a n a s u s p i c i o n of t h e d e f e n d a n t ' s involvement i n , o r o p p o r t u n i t y t o commit, t h e c r i m e c h a r g e d . " S t a t e v. Warren ( 1 9 8 1 ) , St.Rep. Mont. , 628 P.2d 292, 295, 38 Mont. 773, 776 ( q u o t i n g from S t a t e v. Kemp ( 1 9 7 9 ) , I The f o l l o w i n g e x c e r p t i s t a k e n from t h e f i r s t Coleman c a s e , S t a t e v. Coleman (Decided A p r i l 26, 1 9 7 8 ) , 177 Mont. " I n S t a t e v. Keckonen, ( 1 9 3 8 ) , 107 Mont. 2 5 3 , 84 P.2d 341, we h e l d t h a t w h e r e t h e a l l e g e d c o r r o b o r a t i v e evidence i s e q u a l l y consonant w i t h a reasonable e x p l a n a t i o n p o i n t i n g toward i n n o c e n t c o n d u c t on .the p a r t of t h e d e f e n d a n t , t h e n such e v i d e n c e d o e s n o t t e n d t o c o n n e c t him w i t h t h e commission of t h e o f f e n s e and i s i n t h e r e a l m of s p e c u l a t i o n , n o t c o r r o b o r a tion. Where t h e c l a i m e d c o r r o b o r a t i o n shows no more t h a n an o p p o r t u n i t y t o commit a c r i m e and s i m p l y proves suspicion, i t i s n o t s u f f i c i e n t corrobora- t i o n t o j u s t i f y a c o n v i c t i o n upon t h e t e s t i m o n y of a n accomplice. S t a t e v . J o n e s ( 1 9 3 3 ) , 9 5 Mont. 317, 26 P.2d 341." I n a p p l y i n g t h e r u l e , t h e Supreme C o u r t h e l d , i n t h e Coleman o p i n i o n c i t e d above, t h a t t h e r e was s u f f i c i e n t c o r r o b o r a t i o n of Nank' s t e s t i m o n y t o s u s t a i n t h e d e f e n d a n t ' s conviction. be: The c o u r t found t h e c o r r o b o r a t i n g e v i d e n c e t o A c r a c k i n d e f e n d a n t ' s m o t o r c y c l e h e l m e t ; a h a i r of Peggy H a r s t a d found on t h e r o p e b e l o n g i n g t o t h e two men; t h e f i n g e r p r i n t s on Peggy H a r s t a d ' s c a r and i n h e r p u r s e ; Negroid p u b i c h a i r s s i m i l a r t o d e f e n d a n t ' s and Negroid head h a i r found i n t h e v i c t i m ' s v e h i c l e ; t h e e v i d e n c e t h a t t h e d e f e n d a n t and Nank were s e e n t o g e t h e r on t h e same r o a d a t a p p r o x i m a t e l y t h e same t i m e t h a t Peggy H a r s t a d d i s a p p e a r e d . The C o u r t h e l d t h a t t h i s e v i d e n c e s u f f i c i e n t l y c o n n e c t e d t h e d e f e n d a n t t o t h e commission of t h e o f f e n s e s c h a r g e d t o a l l o w t h e conviction t o stand. The e v i d e n c e t h a t d e f e n d a n t was on t h e r o a d w i t h Nank i n t h e v i c i n i t y where Peggy H a r s t a d d i s a p p e a r e d d o e s n o t c o r r o b o r a t e t h e t e s t i m o n y of Nank anymore t h a n i t c o r r o b o r a t e s t h e t e s t i m o n y of Coleman. Coleman t e s t i f i e d t h a t he was w i t h Nank on t h e e v e n i n g i n q u e s t i o n . The same i s t r u e of Coleman's f i n g e r p r i n t s i n t h e p u r s e and i n t h e v e h i c l e . Coleman t e s t i f i e d t h a t he was i n t h e H a r s t a d v e h i c l e a f t e r Nank r e t u r n e d w i t h t h e v e h i c l e . H e t e s t i f i e d t h a t Nank t o l d him t o d i s p o s e o f t h e p u r s e . H e t e s t i f i e d t h a t he f i r s t went t h r o u g h t h e p u r s e and examined i t s c o n t e n t s . The e x i s t e n c e of Coleman's f i n g e r p r i n t s on t h e p u r s e ' s c o n t e n t s and i n t h e v e h i c l e c o r r o b o r a t e t h e t e s t i m o n y of t h e d e f e n d a n t a s w e l l a s t h e t e s t i m o n y of Nank. Therefore, t h i s evidence i s " e q u a l l y consonant with t h e reasonable explanation p o i n t i n g toward i n n o c e n t c o n d u c t on t h e p a r t of t h e d e f e n d a n t " a s i t i s p o i n t i n g toward g u i l t , and t h e r e f o r e , d o e s n o t q u a l i f y a s corroborating evidence. I f t h e r e i s any c o r r o b o r a t i n g e v i d e n c e s u f f i c i e n t t o t a k e t h i s c a s e t o t h e j u r y i t must be found i n t h e c r a c k e d m o t o r c y c l e helmet o r i n r e l i a b l e t e s t i m o n y t h a t Coleman's p u b i c h a i r s were found i n t h e v i c t i m ' s v e h i c l e . A careful r e a d i n g of t h e t r i a l t r a n s c r i p t shows t h a t s u f f i c i e n t c o r r o boration did not exist. There w a s a c r a c k i n Dewey Coleman's s i l v e r c o l o r e d m o t o r c y c l e helmet. The p r o s e c u t i o n contended t h a t t h i s c o r r o b o r a t e d Nank' s t e s t i m o n y t h a t Coleman r e p e a t e d l y s t r u c k Peggy H a r s t a d on t o p of t h e head w i t h h i s m o t o r c y c l e helmet. There was no f o u n d a t i o n t o show t h a t such a s t r i k i n g c o u l d o r would c r a c k a m o t o r c y c l e helmet. There was no t e s t i m o n y t o show t h a t t h e helmet c o u l d be c r a c k e d i n such a f a s h i o n w i t h o u t c r a c k i n g t h e s k u l l of t h e v i c t i m . T h i s v i c t i m had no s k u l l f r a c t u r e a t a u t o p s y . I f t h e c r a c k i n t h e helmet had any c o r r o b o r a t i v e s i g n i f i c a n c e , i t was d e s t r o y e d by t h e p a t h o l o g i s t ' s t e s t i m o n y . Dr. John P f a f f , board c e r t i f i e d f o r e n s i c p a t h o l o g i s t , was c a l l e d t o t e s t i f y by t h e S t a t e t o p r o v e t h a t t h e decomposed remains which he examined a t a u t o p s y were t h o s e of Peggy Harstad. H e did so. He was t h e n q u e s t i o n e d a b o u t h i s f i n d i n g s i n c o n n e c t i o n w i t h t h e t i s s u e which covered t h e skull. He t e s t i f i e d t h a t i f trauma o c c u r r e d t o t h e t o p of t h e head, he would e x p e c t t o s e e b l e e d i n g i n t o t h e t i s s u e , b u t t h a t he saw none. The f o l l o w i n g e x c e r p t s a r e t a k e n from his t e s t i m o n y : ". . . I c o u l d f i n d no e v i d e n c e of bony f r a c t u r e i n any of t h e s k e l e t a l remains t h a t I examined. I n t h e s k u l l t h e r e was no b r a i n t i s s u e remaining. The f i b r u s l i n i n g membrane which c o v e r s t h e b r a i n and s e p a r a t e from t h e s k u l l bones was s t i l l i n T h i s i s s i g n i f i c a n t b e c a u s e i n c a s e s of tact. s k u l l f r a c t u r e o r serious i n j u r y t o the s k u l l , it may become d e t a c h e d and c o n t a i n b l e e d i n g o r blood extravasation. Such was n o t o b s e r v e d i n t h i s c a s e . " Q u e s t i o n : And w i t h i n t h a t s c a l p t i s s u e , d i d you f i n d any e v i d e n c e o f a n i n c i s e d wound, a l a c e r a t i o n o r a hemorrhage? "Answer: I d i d n o t . " Q u e s t i o n : Did you examine t h a t d u r a l l i n i n g t o d e t e r m i n e and a s c e r t a i n w h e t h e r t h e r e was any wound, l a c e r a t i o n o r hemorrhage? "Answer: I d i d . " Q u e s t i o n : And what d i d you f i n d ? "Answer: I found none. " Q u e s t i o n : D o c t o r , w i t h r e s p e c t t o a s u b d u r a l hematoma, i s i t y o u r t e s t i m o n y t h a t i t i s p o s s i b l e t o have a s u b d u r a l hematoma w i t h o u t i n j u r y t o t h e s c a l p , w i t h o u t i n j u r y o r f r a c t u r i n g o f t h e s k u l l and w i t h o u t i n j u r y o r hemorrhage t o t h e s u b d u r a l l i n i n g , i s t h a t possible? "Answer: I t ' s p o s s i b l e , b u t t h e r e i s u s u a l l y i n j u r y t o the scalp. T h e r e may b e no i n j u r y t o t h e bone, b u t i f t h e r e i s a blow s t r u c k t o t h e s c a l p t h e r e i s u s u a l l y evidence of t h a t i f t h e p a t i e n t i s l i v i n g . (Emphasis added. ) " Q u e s t i o n : A l l r i g h t . Now i n t h i s p a r t i c u l a r c a s e d i d you f i n d a n y e v i d e n c e t o s u b s t a n t i a t e i n j u r y t o t h e head o r t o t h e f a c e ? "Answer: I n t h e t i s s u e I examined, I found none. " Q u e s t i o n : W e l l , w h a t e v e r you d i d i n t h a t a u t o p s y e x a m i n a t i o n , w h a t e v e r was a v a i l a b l e t o you, w h a t e v e r p r o c e d u r e t h a t you u s e d , w h a t e v e r s c i e n t i f i c method t h a t you employed, d i d you f i n d a n y i n j u r y t o t h e head o r t o t h e f a c e ? "Answer: I d i d n o t . " ( T r i a l T r a n s c r i p t Vol. 111, pp. 572, 603, 605, 633.) The o n l y r e m a i n i n g e v i d e n c e c l a i m e d f o r c o r r o b o r a t i o n i s t h a t p u b i c h a i r s s i m i l a r t o Dewey Coleman's w e r e found i n t h e Harstad vehicle. The r e c o r d r e v e a l s t h a t h a i r s a m p l e s w e r e t a k e n from t h e d e f e n d a n t and s u b j e c t e d t o m i c r o s c o p i c e x a m i n a t i o n . Both head h a i r and p u b i c h a i r b e l o n g i n g t o d e f e n d a n t w e r e a v a i l a b l e f o r t h a t examination. The v i c t i m ' s c a r was vacuumed and numerous h a i r samples o b t a i n e d from t h a t vacuuming. These samples were a l s o s c r u t i n i z e d m i c r o s c o p i c a l l y and compared t o t h e h a i r samples of d e f e n d a n t . I t s h o u l d be remembered t h a t d e f e n d a n t t e s t i f i e d he was i n t h e v i c t i m ' s v e h i c l e a f t e r Nank r e t u r n e d d r i v i n g t h e v e h i c l e . T h e r e f o r e , t h e e x i s t e n c e of d e f e n d a n t ' s h a i r i n t h e c a r c o r r o b o r a t e s d e f e n d a n t a s w e l l a s Nank and d o e s n o t provide independent corroborating evidence s u f f i c i e n t t o s u s t a i n a c o n v i c t i o n . However, t h e S t a t e p l a c e s g r e a t r e l i a n c e upon t h e f a c t t h a t d e f e n d a n t ' s p u b i c h a i r was a l l e g e d l y found i n t h e v i c t i m ' s v e h i c l e . The r e c o r d does n o t s u p p o r t the State ' s position. I n an e f f o r t t o c o r r o b o r a t e t h e S t a t e ' s c a s e , t h e prosecution c a l l e d an e x p e r t witness t o prove t h a t t h e h a i r found i n t h e v i c t i m ' s v e h i c l e w a s c o n n e c t e d t o t h e d e f e n d a n t . B e f o r e q u o t i n g e x c e r p t s from t h e e x p e r t ' s t e s t i m o n y , i t i s i m p o r t a n t t o t a k e c o g n i z a n c e of t h e e v i d e n t i a r y r u l e h e r e applicable. The o f f e r e d t e s t i m o n y must be based upon a " r e a s o n a b l e d e g r e e of s c i e n t i f i c p r o b a b i l i t y " and i s i n a d m i s s i b l e i f t h e t e s t i m o n y i s based upon a mere " p o s s i b i l i t y " . Moen v. Decker Coal Co. 36 St.Rep. (1980), 6 0 4 P.2d 765, 2 2 2 0 ; Azure v . C i t y o f B i l l i n g s ( 1 9 7 9 ) , 596 P.2d 460, 36 St.Rep. Mont. Mont. , Mont. - 968; F a r r i s v . C l a r k ( 1 9 7 1 ) , 158 3 3 , 487 P.2d 1307; S t o r d a h l v . Rush Implement Company ( 1 9 6 6 ) , 148 Mont. 1 3 , 417 P . 2d 95. The f o l l o w i n g e x c e r p t s a r e t a k e n from t h e S t a t e ' s expert witness: " Q u e s t i o n : Did you make a comparison of t h e Q-2 h a i r t h a t you have mentioned a s having come from t h e a u t o m o b i l e , and t h e K - 2 a s you have mentioned a s coming from t h e head of Dewey Coleman? "Answer: Y e s , I did. " Q u e s t i o n : And what w e r e your f i n d i n g s ? I "Answer: I found t h a t t h e r e were some s i m i l a r i t i e s between t h e s e h a i r s , b u t a l s o t h e r e were some d i f f e r e n c e s between t h e s e h a i r s . " Q u e s t i o n : A s a r e s u l t of t h a t , what was your f i n a l conclusion? "Answer: I r e a c h e d no c o n c l u s i o n a s t o whether o r n o t t h e s e h a i r s c o u l d have come from t h e same s o u r c e . . . . Did you compare t h e p u b i c h a i r s , "Question: t h e known p u b i c h a i r s from Dewey Coleman w i t h t h e Q-29 h a i r s t h a t were removed from t h e d e b r i s from Peggy H a r s t a d ' s v e h i c l e ? "Answer: Y e s , I did. " Q u e s t i o n : And what w e r e your f i n d i n g s ? "Answer: I found t h a t t h e - - t h e two b l a c k Negroid p u b i c h a i r s i n t h e vacuumings from t h e v e h i c l e , which m i c r o s c o p i c a l l y match t h e h a i r s which w e r e s u b m i t t e d t o m e a s b e i n g from t h e p u b i c a r e a of M r . Coleman. " Q u e s t i o n : W i l l you e x p l a i n t h a t f u r t h e r p l e a s e ? "Answer: W e l l , t h e f a c t t h a t t h e h a i r s w e r e micros c o p i c a l l y a l i k e allowed m e t o conclude t h a t they c o u l d -----same s o u r c e . The two p u b i c have come from t h e - - t h e two b l a c k Negroid p u b i c h a i r s from t h e vahave come c u u m i n g ~o f t h e v i c t i m ' s v e h i c l e c o u l d -from t h e p u b i c - -of M r . Coleman. area -- " Q u e s t i o n : You d o n ' t s a y i t d o e s come from t h e same you s a y i t ' s th s o u r c e , --- p o s s i b l e -a t i t c o u l d have come from t h a t --- s o u r c e , r i g h t ? "Answer: T h a t ' s c o r r e c t . " ( T r i a l T r a n s c r i p t Vol. 1802, 1805, 1806, 1905, 1906.) (Emphasis added. ) V I I I , pp. Under w e l l e s t a b l i s h e d law i n Montana, t h i s t e s t i m o n y was t o o s p e c u l a t i v e t o be r e c e i v e d i n e v i d e n c e , and once r e c e i v e d , c o u l d n o t be r e l i e d upon a s s u f f i c i e n t l y c o r r o b o r a t i v e t o sustain a conviction. T h i s C o u r t ' s d e c i s i o n i n S t a t e v . Coleman, s u p r a , wherein t h e C o u r t i d e n t i f i e d t h e c o r r o b o r a t i v e e v i d e n c e , a l s o r e l i e d upon t e s t i m o n y t h a t t h e v i c t i m ' s h a i r was found embedded i n t h e y e l l o w nylon r o p e . Though t h e e x i s t e n c e of s u c h h a i r would o n l y c o r r o b o r a t e t h a t t h e r o p e was used i n k i l l i n g t h e v i c t i m , and would n o t c o r r o b o r a t e Nank's t e s t i m o n y t h a t Coleman was p r e s e n t , t h e e v i d e n c e i t s e l f was i n s u f f i c i e n t . The same e x p e r t w i t n e s s s o u g h t t o r e l a t e h a i r found on t h e r o p e w i t h t h e h a i r of t h e v i c t i m . He t e s t i f i e d t h a t t h e r e was brown Caucasian h a i r embedded i n t h e f r a y e d e n d s of t h e rope. He a g a i n t e s t i f i e d t h a t t h e h a i r found i n t h e r o p e c o u l d -have been t h e h a i r of Peggy H a r s t a d . - Under t h e r u l e above e n u n c i a t e d such t e s t i m o n y c o u l d n o t be r e l i e d upon f o r corroboration. Additionally, t h i s expert witness t e s t i f i e d t h a t he c o u l d n o t d e t e r m i n e t h e s e x of t h e p e r s o n from whom t h e h a i r came. Nank a l s o had brown C a u c a s i a n h a i r . Interestingly, t h i s same h a i r e x p e r t , t e s t i f i e d t h a t he had examined h a i r t a k e n from t h e b l a n k e t l a t e r d e t e r m i n e d t o be a b l a n k e t which Peggy H a r s t a d had i n h e r c a r when s h e l e f t home. Brown C a u c a s i a n h a i r was found on t h e b l a n k e t . Nank had t e s t i f i e d t h a t he and Coleman were on t h e b l a n k e t smoking c i g a r e t t e s a f t e r t h e y had k i l l e d Peggy H a r s t a d . Coleman t e s t i f i e d t h a t he knew n o t h i n g a b o u t t h e b l a n k e t and The e x a m i n a t i o n r e v e a l e d had had no p h y s i c a l c o n t a c t w i t h i t . no Negroid h a i r upon t h e b l a n k e t . There simply was no c o r r o b o r a t i o n s u f f i c i e n t t o l e n d c r e d e n c e t o t h e t e s t i m o n y of Nank. this. The t r i a l c o u r t r e a l i z e d A t t h e time t h e prosecution r e s t e d , and t h e d e f e n s e moved f o r a d i r e c t e d v e r d i c t , t h e t r i a l c o u r t i n d i c a t e d t h a t t h e r e w a s no c o r r o b o r a t i o n b u t s t a t e d he would a l l o w t h e Supreme C o u r t t o r u l e on t h e q u e s t i o n . A f t e r t h e d e f e n s e made a motion f o r d i r e c t e d v e r d i c t because t h e r e w a s n o t s u f f i c i e n t corroboration f o r an accomplice's t e s t i m o n y , t h e p r o s e c u t i o n r e s i s t e d and t h e f o l l o w i n g d i s c u s s i o n was had: "THE COURT: Well, I t r e a t t h i s a s a r e a l s e r i o u s motion. "MR. OVERFELT: I n what r e g a r d ? "THE COURT: Well, I am n o t going t o g r a n t t h e motion, b u t I s a y i t h a s some m e r i t . "MR. OVERFELT: I f r a n k l y d o n ' t t h i n k i t h a s any. W c o u l d have g o t t e n t o t h e J u r y on c i r c u m s t a n t i a l e e v i d e n c e a l o n e , Your Honor, and I ' m c o n f i d e n t of that. "THE COURT: Well, a l l you have shown i s t h e opport u n i t y f o r t h i s b l a c k boy t o do i t . You have shown p l e n t y of o p p o r t u n i t y . " ( T r i a l T r a n s c r i p t Vol. I X , pp. 2106-2107.) A s previously noted, c o r r o b o r a t i v e t e s t i m o n y showing o n l y o p p o r t u n i t y i s i n s u f f i c i e n t t o a l l o w t h e c a s e t o go t o t h e jury. Though t h e t r i a l c o u r t found, a s I have found, t h a t t h e r e was no c o r r o b o r a t i o n , he n e v e r t h e l e s s a l l o w e d t h e c a s e t o go t o t h e j u r y s o t h a t t h e Supreme C o u r t would have a n o p p o r t u n i t y t o r e v i e w t h e complete r e c o r d and make a determination. I am g r e a t l y b o t h e r e d by t h i s c a s e . The o n l y e v i d e n c e t h a t t h e d e f e n d a n t i s g u i l t y of t h e c r i m e s charged comes from a n accomplice who was a s e l f - p r o c l a i m e d had e v e r y r e a s o n t o p e r j u r e h i m s e l f . l i a r and who This accomplice, though he had a h i s t o r y of v i o l e n c e and s e x u a l d e v i a t i o n , was g i v e n a n o n c a p i t a l s e n t e n c e . The d e f e n d a n t , whose g u i l t was n o t proven by competent e v i d e n c e , had no p r e v i o u s f e l o n y r e c o r d and y e t was s e n t e n c e d t o d e a t h . The d e a t h s e n t e n c e i n Montana i s governed by t h r e e s t a t u t e s which a r e h e r e i n a f t e r q u o t e d i n t h e i r e n t i r e t y : " A g g r a v a t i n g c i r c u m s t a n c e s . Aggravating circums t a n c e s a r e any of t h e f o l l o w i n g : " ( 1 ) The o f f e n s e was d e l i b e r a t e homicide and was committed by a p e r s o n s e r v i n g a s e n t e n c e of i m prisonment i n t h e s t a t e prison. " ( 2 ) The o f f e n s e was d e l i b e r a t e homicide and was committed by a d e f e n d a n t who had been p r e v i o u s l y c o n v i c t e d of a n o t h e r d e l i b e r a t e homicide. " ( 3 ) The o f f e n s e was d e l i b e r a t e homicide and was committed by means of t o r t u r e . " ( 4 ) The o f f e n s e was d e l i b e r a t e homicide and was committed by a p e r s o n l y i n g i n w a i t o r ambush. " ( 5 ) The o f f e n s e was d e l i b e r a t e homicide and was committed as a p a r t of a scheme o r o p e r a t i o n which, i f completed, would r e s u l t i n t h e d e a t h of more t h a n one p e r s o n . " ( 6 ) The o f f e n s e w a s d e l i b e r a t e homicide a s d e f i n e d i n s u b s e c t i o n (1)( a ) of 45-5-102, and t h e v i c t i m was a p e a c e o f f i c e r k i l l e d w h i l e p e r f o r m i n g h i s duty. " ( 7 ) The o f f e n s e was a g g r a v a t e d k i d n a p p i n g which r e s u l t e d i n t h e d e a t h o f t h e v i c t i m . " ( S e c t i o n 46-18304, MCA.) " ~ i t i g a t i n g ircumstances. c a r e any of t h e f o l l o w i n g : Mitigating circumstances " ( 1 ) The d e f e n d a n t h a s no s i g n i f i c a n t h i s t o r y of p r i o r criminal activity. " ( 2 ) The o f f e n s e was comrnited w h i l e t h e d e f e n d a n t was under t h e i n f l u e n c e of extreme m e n t a l o r emot i o n a l disturbance. I' ( 3 ) The d e f e n d a n t a c t e d under e x t r e m e d u r e s s o r under t h e s u b s t a n t i a l domination of a n o t h e r p e r s o n . " ( 4 ) The c a p a c i t y of t h e d e f e n d a n t t o a p p r e c i a t e t h e c r i m i n a l i t y of h i s c o n d u c t o r t o conform h i s c o n d u c t t o t h e r e q u i r e m e n t s of law was s u b s t a n t i a l l y impaired. " ( 5 ) The v i c t i m was a p a r t i c i p a n t i n t h e d e f e n d a n t ' s conduct o r consented t o t h e a c t . " ( 6 ) The d e f e n d a n t was an accomplice i n an o f f e n s e committed by a n o t h e r p e r s o n , and h i s p a r t i c i p a t i o n was r e l a t i v e l y minor. " ( 7 ) The d e f e n d a n t , a t t h e t i m e of t h e commission of t h e c r i m e , was less t h a n 18 y e a r s of a g e . " ( 8 ) Any o t h e r f a c t e x i s t s i n m i t i g a t i o n of t h e p e n a l t y . " ( S e c t i o n 46-18-304, MCA.) " E f f e c t - a g g r a v a t i n g - m i t i g a t i n g circumof and stances. I n d e t e r m i n i n g whether t o impose a sent e n c e of d e a t h o r imprisonment, t h e c o u r t s h a l l t a k e i n t o a c c o u n t t h e a g g r a v a t i n g and m i t i g a t i n g c i r c u m s t a n c e s enumerated i n 46-18-303 and 46-18304 and s h a l l impose a s e n t e n c e of d e a t h i f i t f i n d s one o r more of t h e a g g r a v a t i n g c i r c u m s t a n c e s and f i n d s t h a t t h e r e a r e no m i t i g a t i n g circumstances sufficiently substantial t o c a l l for leniency. I f t h e c o u r t d o e s n o t impose a s e n t e n c e o f d e a t h and one of t h e a g g r a v a t i n g c i r c u m s t a n c e s l i s t e d i n 46-18-303 e x i s t s , t h e c o u r t may impose a s e n t e n c e o f imprisonment f o r l i f e o r f o r any t e r m a u t h o r i z e d by t h e s t a t u t e d e f i n i n g t h e o f f e n s e . " ( S e c t i o n 46-18-305, MCA.) Under t h e above q u o t e d s t a t u t e s t h e d e a t h p e n a l t y i s imposed i f t h e r e i s a n a g g r a v a t i n g c i r c u m s t a n c e and m i t i g a t i n g c i r c u m s t a n c e s do n o t c a l l f o r l e n i e n c y . s u b s e c t i o n s of s e c t i o n 46-18-303, t h i s defendant. MCA, The f i r s t s i x are inapplicable t o The o n l y a g g r a v a t i n g c i r c u m s t a n c e t o be found under t h e s t a t u t e , i f i n d e e d one e x i s t e d , would be rooted i n subsection ( 7 ) . There i s a b s o l u t e l y no c o r r o b o r a t i n g e v i d e n c e t o show t h a t t h i s d e f e n d a n t was i n v o l v e d i n a g g r a v a t e d kidnapping r e s u l t i n g i n t h e d e a t h of t h e v i c t i m . Even i f one were t o a c c e p t t h e " h a i r t e s t i m o n y " o f f e r e d by t h e e x p e r t , i t would o n l y c o r r o b o r a t e t h a t d e f e n d a n t committed t h e a c t of s e x u a l i n t e r c o u r s e . T h i s a c t c o u l d n o t have r e s u l t e d i n t h e d e a t h of t h e v i c t i m . There i s no t e s t i m o n y c o r r o b o r a t i n g Nank ' s t e s t i m o n y t h a t t h e d e f e n d a n t p a r t i c i p a t e d i n a n a c t which r e s u l t e d i n t h e d e a t h of t h e v i c t i m . A v e r y s t r o n g m i t i g a t i n g c i r c u m s t a n c e e x i s t s under 46- 18-304, MCA. T h i s d e f e n d a n t h a s no f e l o n y r e c o r d . Furthermore, under s u b s e c t i o n ( 8 ) of t h e s t a t u t e , any f a c t e x i s t i n g i n m i t i g a t i o n , must be c o n s i d e r e d by t h e c o u r t . The q u e s t i o n a b l e g u i l t o f t h e d e f e n d a n t i s c e r t a i n l y such a m i t i g a t i n g f a c t o r . W e have s e e n t h a t t h e r e i s n o t c o r r o b o r a t i v e t e s t i m o n y t o s u p p o r t Nank's v e r s i o n of t h i s m a t t e r . I would l i k e t o examine Nankl s t e s t i m o n y i t s e l f t o show t h e t o t a l u n r e l i a b i l i t y of t h a t t e s t i m o n y . The purpose of such e x a m i n a t i o n i s t o show t h e weakness of t h e S t a t e 1s c a s e , t h e l i k e l i h o o d t h a t t h e d e f e n d a n t i s i n n o c e n t , and t h e f a c t t h a t t h e d e a t h p e n a l t y s h o u l d n e v e r be imposed i n such a c i r c u m s t a n c e . Though t h e j u r y c o n v i c t e d Coleman, t h e t r i a l judge s h o u l d c o n s i d e r t h e c e r t a i n t y of Coleman's g u i l t b e f o r e imposing t h e d e a t h p e n a l t y . t h e defendant. There was no c o n f e s s i o n from There w e r e no d i s i n t e r e s t e d w i t n e s s e s d i r e c t l y c o n n e c t i n g Coleman t o t h e commission of t h e o f f e n s e s c h a r g e d . A s previously discussed, e v i d e n c e o f any k i n d . t h e r e was no i n d e p e n d e n t c o r r o b o r a t i n g I f Nank's t e s t i m o n y l a c k e d c r e d i b i l i t y , t h e e v i d e n c e of Coleman's i n v o l v e m e n t becomes e v e n more speculative. The f o l l o w i n g e x c e r p t s from t h e r e c o r d b e a r upon Nank' s v e r a c i t y : "Answer: She d r o v e t h e p i c k u p t h r o u g h t h e d r i v e way and o v e r down w i t h i n maybe f i v e f e e t of t h e bike. I then tipped t h e motorcycle r i g h t s i d e up and I p r o c e e d e d t o f i l l t h e g a s t a n k up. I l i e d t o her. T h i s i s g o i n g back t o t h e c r i m e and I was a l w a y s t r y i n g t o make up s t o r i e s . You know. " Q u e s t i o n : Did you t e l l them t h e same t h i n g t h a t you have t o l d t h e j u r y h e r e i n t h e l a s t two d a y s ? "Answer: No, I l i e d t o M r . Brake. " Q u e s t i o n : I n what r e s p e c t d i d you l i e t o M r . Brake? "Answer: I l i e d . I t o l d M r . Brake t h a t Dewey t i e d Peggy Hars t a d up and I t o l d him t h a t Dewey und r e s s e d her i n s t e a d of m e . " Q u e s t i o n : So t h a t any s t a t e m e n t i n a n y r e c o r d t h a t you t o o k LSD 25 o r 30 t i m e s would b e a l i e ? "Answer: I t was i n a l i e i n s o much t h a t maybe a t t h a t t i m e I was g o i n g t o t r y t o u s e t h a t a s a n e x c u s e t o b e a d m i t t e d f o r my c r i m e i n t o a s t a t e h o s p i t a l i n s t e a d o f g o i n g t o p r i s o n , and s o t h a t i s maybe t h e r e a s o n t h a t I made t h a t s t a t e m e n t , and I d i d l i e because I heard of c a s e s l i k e t h i s b e f o r e , s o I may have l i e d , y e s . " Q u e s t i o n : So now you d i d t e l l somebody t h a t you had u s e d LSD 25 o r 30 t i m e s , b u t e v e n though you l i e d a b o u t i t , you t h o u g h t you m i g h t b e a b l e t o g e t o f f o r g e t i n t o a s t a t e h o s p i t a l o r something, is that right? " T h a t would b e t h e p u r p o s e o f i t , y e s . " Q u e s t i o n : W e l l , d i d you g i v e them a n y examples o f a n y a g g r e s s i v e b e h a v i o r on your p a r t ? "Answer: I d o n ' t know, I d i d a l o t of l y i n g s o I c a n n o t s t a t e n o t h i n g t r u t h f u l l y a b o u t what I . . ." s a i d t h e r e and g e t a c o r r e c t a n s w e r . ( T r i a l T r a n s c r i p t Vol. V , pp. 1056, 1057, 1102, 1103, 1 1 3 0 . ) Nank's t e s t i m o n y on t h e s t a n d was a l s o c o n t r a r y t o t h e t e s t i m o n y of Law enforcement o f f i c e r s . Nank t e s t i f i e d t h a t he was t e l l i n g t h e t r u t h and t h e law e n f o r c e m e n t o f f i c e r s were lying. One of t h e law e n f o r c e m e n t o f f i c e r s who o r i g i n a l l y i n t e r r o g a t e d Nank f o l l o w i n g h i s a r r e s t i n B o i s e , I d a h o , s t a t e d t h a t Nank t o l d him he became u p s e t w i t h Peggy H a r s t a d b e c a u s e s h e s a i d something t o h u r t h i s ego. Nank, d u r i n g t h e Coleman t r i a l , a c c u s e d t h e law e n f o r c e m e n t o f f i c e r of lying about t h i s matter. The f o l l o w i n g e x c e r p t i s t a k e n from t h e t r a n s c r i p t : " Q u e s t i o n : And do you r e c a l l t h a t he s a i d , ' I b e t you t h a t s h e p r o b a b l y s a i d something t o you t h a t e i t h e r h u r t your ego, made you v e r y mad, ext r e m e l y u p s e t ' , o r something l i k e t h a t , and d i d you d r o p your head and n o t make any comment t o t h a t question? "Answer: I d i d n o t make any comment b e c a u s e I knew t h a t h e was t r y i n g t o make m e make some k i n d of a statement. " Q u e s t i o n : And t h e n he s a i d , 'Did s h e s a y somet h i n g t o i n f u r i a t e you o r h u r t your e g o ' , o r t h i s t y p e of t h i n g , and you s a i d , 'Yes, Y e s , s h e d i d . ' M r . Brake l i e d "Answer: No, I n e v e r d i d s a y t h a t . and I a l s o t o l d Judge M a r t i n when I w a s i n a n e a r I.ier c o u r t hearing before about t h a t . "Question: M r . Brake l i e d ? "Answer: M r . Brake d i d l i e . " p. 1 0 9 1 , 1092.) ( T r i a l T r a n s c r i p t Vol. V, Law e n f o r c e m e n t o f f i c e r Brake had a l s o t e s t i f i e d t h a t a t t h e t i m e Nank and Coleman w e r e a r r e s t e d i n t h e i r a p a r t m e n t t i n B o i s e , t h a t Nank t o l d t h e p o l i c e t o " ~ e your a s s o u t of here". Nank, d u r i n g t h e Coleman t r i a l , a g a i n a c c u s e d t h e law e n f o r c e m e n t o f f i c e r s of l y i n g . The f o l l o w i n g e x c e r p t i s t a k e n from t h e r e c o r d . " Q u e s t i o n : And d i d you when you were a r r e s t e d t e l l t h e B o i s e p o l i c e , t o ' G e t your a s s o u t of h e r e ' ? "Answer: No. M r . Brake l i e d a b o u t t h a t , and I a l s o t r i e d t o e x p l a i n t h a t t o Judge M a r t i n i n an e a r l i e r c o u r t h e a r i n g t h a t I s a i d t h a t M r . Brake l i e d . T h a t ' s one t h i n g , I have never--I have n e v e r I I a ' , ' .. c a l l e d a policeman a name. He l i e d a b o u t t h a t t o o . " ( T r i a l T r a n s c r i p t Vol. V , p. 1227.) Again, o f f i c e r Brake t e s t i f i e d t h a t h e r e a d t h e c o n s t i t u t i o n a l r i g h t s t o Nank a t t h e t i m e of h i s a r r e s t . Nank, w h i l e t e s t i f y i n g d u r i n g t h e Coleman c a s e , d i s p u t e d t h i s . Nank t e s t i f i e d : " Q u e s t i o n : Did he v e r b a l l y - - d i d M r . Brake v e r b a l l y a d v i s e you o f your r i g h t s a s soon a s you were p l a c e d under a r r e s t ? "Answer: Not a t t h a t time. t i m e , no. Not a t t h a t p a r t i c u l a r " Q u e s t i o n : You h e a r d M r . Brake s a y t h a t he d i d adv i s e you of your r i g h t s , and t h a t ' s a l i e a c c o r d i n g t o you? "Answer: H e d i d n o t a t t h a t t i m e when w e were a r r e s t e d v e r b a l l y a d v i s e u s of o u r r i g h t s a t t h a t t i m e , no, h e d i d n o t . " Q u e s t i o n : You h e a r d him t e s t i f y t h a t h e d i d ? "Answer: He d i d n o t do i t . " Q u e s t i o n : Well t h e n , he l i e d ? "Answer: H e l i e d . " p. 1227.) ( T r i a l T r a n s c r i p t Vol. V , Nank's t e s t i m o n y i t s e l f was r i d d l e d w i t h i n c o n s i s t e n c y . Though t h e r e c o r d i s r e p l e t e w i t h examples, t h e f o l l o w i n g i s illustrative. When t e s t i f y i n g a b o u t who u n d r e s s e d t h e v i c t i m , Nank gave t h e f o l l o w i n g t e s t i m o n y : " Q u e s t i o n : You took h e r s h o e s o f f d i d n ' t you? "Answer: Y e s , I did. " Q u e s t i o n : You u n d r e s s e d h e r ? "Answer: Dewey d i d . " p. 1189.) ( T r i a l T r a n s c r i p t Vol. V , The f o l l o w i n g t e s t i m o n y i s t a k e n from page 1210, Vol. V, of t h e t r i a l t r a n s c r i p t . " Q u e s t i o n : And d i d you u n d r e s s h e r ? "Answer: Yes I d i d . " Q u e s t i o n : And d i d you d r e s s h e r up a g a i n ? "Answer: Y e s I d i d . " And from p a g e 1223 and 1224, Vol. V , of t h e t r i a l t r a n s c r i p t s , t h e following testimony i s taken: " Q u e s t i o n : Do I u n d e r s t a n d t h a t Dewey n e v e r t o o k her clothes o f f ? "Answer: Dewey d i d n o t t a k e h e r c l o t h e s o f f . " Q u e s t i o n : Do I u n d e r s t a n d t h a t you t o o k h e r c l o t h e s off? "Answer: I d i d t a k e h e r c l o t h e s o f f . " Q u e s t i o n : And t h a t i n c l u d e d h e r p a n t s ? "Answer: She had o n - - w e l l , t r o u s e r s o r whatever. some k i n d o f m o r e l e s s " Q u e s t i o n : Did t h a t i n c l u d e u n d e r p a n t s ? "Answer: I d o n o t remember i f s h e was w e a r i n g underwear a t t h a t t i m e o r not. " Q u e s t i o n : Did you p u t h e r c l o t h e s back on? "Answer: I p u t h e r b l u e j e a n s back on. I think w i t h what s h e was w e a r i n g , I p u t them back o n , yes. " Q u e s t i o n : So t h a t you w e r e t h e o n l y o n e t h a t dressed o r undressed h e r , i s t h a t c o r r e c t ? "Answer: Y e s , that's correct." I n t h e f i r s t s t a t e m e n t Nank g a v e t o l a w e n f o r c e m e n t o f f i c i a l s h e s a i d Coleman u n d r e s s e d t h e v i c t i m . On t h e s t a n d Nank t e s t i f i e d t h a t Coleman u n d r e s s e d t h e v i c t i m and t h e n changed t h e t e s t i m o n y and t e s t i f i e d t h a t he was t h e o n l y o n e who had u n d r e s s e d t h e v i c t i m . H i s testimony, to s a y t h e l e a s t , was i n c r e d i b l e . Nank had a h i s t o r y o f v i o l e n c e b e g i n n i n g w i t h h i s childhood. Though t h e r e c o r d s show t h a t h e a t t a c k e d h i s mother w i t h a b u t c h e r k n i f e , h e t e s t i f i e d t h a t i t was h i s m o t h e r who a t t a c k e d him w i t h t h e k n i f e . Nank r e l a t e d t h e f o l l o w i n g t e s t i m o n y d u r i n g t h e c o u r s e o f Coleman's t r i a l : " Q u e s t i o n : Now you s t a t e d t h a t y o u r m o t h e r , M r s . Nank--Mary, was t h a t h e r f i r s t name? "Answer: Margaret. " Q u e s t i o n : M a r g a r e t . A t one t i m e when you were 18 y e a r s of a g e , h e l d a b u t c h e r k n i f e a t your t h r o a t and chased you around t h e house w i t h a poker b e a t i n g you upon t h e head and s h o u l d e r s and t h e n t e a r i n g t h e f r o n t of h e r d r e s s and going o u t i n t h e s t r e e t and t e l l i n g o t h e r p e o p l e t h a t you had a t t a c k e d h e r sexu a l l y ; d i d s h e do t h a t ? "Answer: NO, you s t a t e d t h a t wrong, s i r . "Question: W e l l , your t h r o a t ? "Answer: Y e s , d i d she hold a butcher k n i f e a t she did. " Q u e s t i o n : And d i d s h e c h a s e you around t h e house w i t h a poker? "Answer: Y e s , she did. " Q u e s t i o n : Did s h e h i t you a b o u t t h e head and s h o u l d e r s w i t h a poker? "Answer: Yes, s h e d i d . " Q u e s t i o n : Did s h e t e a r t h e f r o n t of h e r d r e s s ? "Answer: The f r o n t of h e r b l o u s e . " Q u e s t i o n : And d i d s h e t e l l o t h e r p e o p l e t h a t you had a t t a c k e d h e r s e x u a l l y ? "Answer: No, s h e d i d n o t . " Q u e s t i o n : She d i d n o t ? "Answer: She d i d n o t r u n o u t i n t h e s t r e e t and h o l l e r a t p e o p l e , no, s h e d i d n o t . " Q u e s t i o n : Did s h e t e l l o t h e r p e o p l e t h a t you had a t t a c k e d h e r s e x u a l l y ? "Answer: I t h i n k s h e m i g h t have t o l d a d o c t o r . I do n o t know." ( T r i a l T r a n s c r i p t Vol. V , pp. 1074, 1075.) Though t h e r e c o r d s show t h a t Nank had a t t a c k e d h i s mother w i t h a b u t c h e r k n i f e and i n d i c a t e t h a t he may have a t t a c k e d h e r s e x u a l l y , he took t h e w i t n e s s s t a n d i n t h e Coleman c a s e and s a i d t h a t h i s mother i n f a c t had been t h e a g g r e s s o r and h e t h e v i c t i m . Nank had been i n s t i t u t i o n a l i z e d i n m e n t a l h o s p i t a l s on four previous occasions. H e had a h i s t o r y of v i o l e n c e i n c l u d i n g v i o l e n c e a g a i n s t b o t h h i s mother and h i s s i s t e r . H e had a f e l o n y r e c o r d . On t h e o t h e r hand, Coleman had no h i s t o r y of v i o l e n c e and no f e l o n y r e c o r d . Coleman was a homosexual. A psychologist t e s t i f i e d with r e s p e c t t o a r a p i s t ' s typical characteristics. T h i s t e s t i m o n y showed t h a t Nank f i t t h e p a t t e r n b u t Coleman d i d n o t . In f a c t , t h i s witness t e s t i f i e d t h a t t h e i n c i d e n t s of homosexuals b e i n g i n v o l v e d i n r a p e was " p r a c t i c a l l y z e r o " . I n m n i n e t e e n y e a r s a t t h e bench and b a r I have seldom y been s o d e e p l y d i s t u r b e d by t h e i n j u s t i c e of a r e s u l t . A d e f e n d a n t i s h e r e s e n t e n c e d t o d i e where t h e r e i s p r a c t i c a l l y no c r e d i b l e e v i d e n c e c o n n e c t i n g t h e d e f e n d a n t t o t h e commission of t h e c r i m e . There a r e s t r o n g r e a s o n s t o b e l i e v e t h a t t h e d e f e n d a n t d i d n o t commit t h e c r i m e f o r which t h e d e a t h p e n a l t y was imposed. And y e t t h i s C o u r t i s a u t h o r i z i n g t h e i m p o s i t i o n of t h a t i r r e v o c a b l e s a n c t i o n . I implore t h e f e d e r a l c o u r t s t o examine t h i s r e c o r d , and upon f i n d i n g i t t o be a s wanting as I do, t o i n t e r v e n e and p r e v e n t t h i s gross injustice. Mr. Justice Daniel J. Shea dissenting: Although the death penalty should be vacated in any event, I would also reverse the convictions for the reasons stated in my dissent, and for the reasons stated in the dissent of Justice Frank B. Morrison. Although dismissal is the proper ruling, even in the event of a failure to dismiss, the evidence of corroboration of accomplice Nank's testimony is so thin that a death penalty should not be imposed. I also join Justice Morrison in his dissent relating to imposition of the death penalty. With the exception of parts I, 11, 111 and a portion of part IV of the majority opinion, the opinion decides the issues in such a wholesale and summary manner that we have ourselves denied Coleman the due process to which he is entitled. The opinion fails to mention, let alone discuss, the issues raised in Coleman's final attempt to get justice in the state court system. to such a nonopinion? How does one write a dissent How does one know where to begin? In part I11 of the opinion, the majority holds that post-conviction relief is available to a defendant sentenced to death, and with this I wholeheartedly agree. It would be unthinkable that either the legislature or this Court would or could foreclose the availability of relief. Unfortunately, however, the rest of the holding seems to give carte blanche to a district court to deny any and all applications for post-conviction relief, and that decision will be automatically affirmed by this Court by our refusal to even state or discuss the issues. The District Court's treatment of Coleman's application for post-conviction relief is appalling, and this Court's handling of Coleman's appeal from that order is even more appalling. In the normal case, I would agree with part I1 of the majority's opinion that the trial judge and the sentencing judge should also preside over an application for postconviction relief. But that general rule must give way to a situation where one under a death penalty is seeking post-conviction relief. For reasons which I state in detail in part I11 of my dissent, the post-conviction relief judge here should have called in another judge to preside over Coleman's application for post-conviction relief. His failure to do so made a mockery of any meaningful consideration of the claims presented to the court. Minimally, this Court should have ordered a new hearing before another district judge. I agree, however, with part I of the majority opinion in its conclusion that post-conviction relief is essentially a new civil action. And even though it is somewhat illogical to hold that the judge who presided over the criminal case also should preside over the application of post-conviction relief, there are sound reasons, except in a death penalty case, for the same judge presiding over both proceedings. Finally, I agree with a part of the majority opinion in part IV--that part of the opinion holding that res judicata may be applied to a petition for post-conviction relief if the criteria of Sanders v. United States (1963), 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, are followed in making this decision. But the majority has, in the remainder of part IV, and in other parts of the opinion, totally negated those very criteria set out in Sanders, by its wholesale and summary treatment of the issues. United States v. Sanders is concerned with the extent a federal court in a post-conviction relief proceeding such as habeas corpus, can give controlling weight to a previous denial of habeas corpus. Although it is procedurally inapplicable to the case before us, nonetheless Sanders does adopt sound and workable standards that can apply to a petition for post-conviction relief after there has been a direct appeal. But the majority here has failed to recognize that we must consider each criteria before we can justly say that res judicata should bar the claim. This Court must decide first that the same ground was presented at another proceeding and determined adversely. Second, this Court must then determine whether the previous decision was on the merits. And third, this Court must decide whether the ends of justice require that we again reexamine the issue. By this third criteria, the Court can refuse to apply res judicata even if the issue has been previously decided on the merits--if the ends of justice require it. The majority here has failed miserably in applying these criteria, for there is no way of determining from the opinion how or if the criteria were applied. So much for Sanders. I have divided my dissent into eight parts, and they are at best arbitrarily divided. But these divisions do give some semblance or order to the presentation of my views concerning this appeal. This case on appeal was aided neither by Coleman's brief nor by his counsel's arguments at the hearing. When this situation occurs, the situation is, of course, complicated even more. Coleman raised in the trial court and before this Court 52 issues. Counsel lettered the issues A through Z, and then started again at the beginning of the alphabet and went through the alphabet once more, lettering the issues AA through Z Z - - 5 2 issues. Needless to say, it is more than a little difficult for any appellate court to concern itself with 52 issues on appeal. That process is complicated even more when the briefs and oral arguments are so poor. I have chosen to concentrate on those issues which I believe to have most merit. This is not to say that I believe at least some of the other issues not to have merit, but time constraints require me to concentrate on those issues I feel are most worthy of discussion. This dissent is divided into eight parts, divided as follows: Part I, Improper Empanelling of Jury Panel; Part 11, Unanimous Jury Verdict Requirement; Part 111, Recusal of Sentencing Judge; Part IV, Retroactive Application of Death Penalty Statutes; Part V, Unconstitutional Shifting of Burden of Proof to Defendant; Part VI, Right to Jury Trial on Question Whether Death Penalty Should be Imposed; Part VII, Right to Evidentiary Hearing on Question of Whether Death by Hanging Constitutes Cruel and Unusual Punishment; Part VIII, Denial of Meaningful Appellate Review. Because the majority opinion has totally failed to mention the issues, other than to refer to them by the letters as designated in the petition for post-conviction relief and in the appeal, I append the trial court's order to this dissent as Exhibit A. The order disposes of each of the issues raised, although at times it is difficult to determine exactly what issue was decided. that this --order - further emphasize I is a of - - word-for-word adoption - - the proposed by the findings and conclusions - - presented - - State. of law For this reason, it can hardly be considered as being the careful analysis of a trial judge judiciously carrying out his duties. I dissented in both Coleman - (1978), 177 Mont. 1, 39 to 43, I 579 P.2d 732, 754 to 756, and Coleman - (1979), - Mont I1 . I 605 P.2d 1000, 1022 to 1051, 36 St.Rep. 2237, 2248 to 2249, and I still adhere to those views. On some of these issues, however, I do expand more on my views in this dissent. PART I IMPROPER EMPANELLING OF JURY PANEL. By Issue F, covered in the omnibus holding of the majority opinion in Part IV, the defendant claims he was deprived of his right to have a jury that was properly selected and empanelled. majority held against him. P.2d I, In Coleman - 579 P.2d 732, the I dissented on this issue, 579 '754-756,and for this reason alone, I would grant defendant a new trial. The majority has cut real corners and did not reach the real issue in deciding this issue in Coleman - and I, for this reason, I would again review it by application of the Sanders criteria. It seems that all the majority is concerned about is whether there were 12 jurors present to try the case and not how the 12 jurors happened to be there in the first place. In my dissent, I pointed out the improper procedures used in calling in the panel of jurors, of which at - least some of the 12 jurors were called in the manner described. PART I1 THERE IS NEITHER ASSURANCE THAT THE JURY REACHED A UNANIMOUS VERDICT ON ONE OR MORE THEORIES OF CRIMINAL RESPONSIBILITY SUBMITTED TO THE JURY, NOR ARE ALL THEORIES SUPPORTED BY SUBSTANTIAL EVIDENCE Issue UU, an issue not raised in Coleman's first two appeals, claims that all three convictions must be reversed because there is no assurance that the jury reached unanimous agreement on one or more of the alternative theories of criminal responsibility submitted to the jury on each charge. Without this assurance, Coleman claims that he has been denied his right to unanimous jury verdict as guaranteed by the Sixth and Fourteenth Amendment of the United States Constitution, and as guaranteed by Article 11, B 26, Montana Constitution. Counsel has raised this issue without a genuine attempt to analyze the issue and apply it to this case. The same issue has been raised in the Fitzpatrick and McKenzie cases now before this Court, and undoubtedly Coleman's counsel has been the recipient of some cross-fertilization. I believe, nonetheless, that Coleman has raised an issue deserving of careful review by this Court, and that Coleman's convictions should be reversed because there is no assurance that the jury reached unanimity on a single theory of statutory responsibility. My position is not based on the fact that this is a death penalty cause; the issue is a serious one even if the death penalty were not the underlying issue. But the fact that Coleman has been sentenced to hang requires all courts, and especially this Court, to carefully consider the merits of this claim. But the trial court and this Court have failed miserably in treating the issue as virtually frivolous. The United States Supreme Court, in the aftermath of its decision upholding the constitutionality of the death penalty, has emphasized the need to be sure not only that the death penalty is the properly penalty, but that the guilt finding process has been scrupulously adhered to. In Beck v. Alabama (1980), 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392, the Supreme Court stated: "To insure that the death penalty is . . . imposed on the basis of 'reason rather than caprice or emotion,' (the courts) have invalidated procedural rules that tended to diminish the reliability of The same the sentencing determination. - - reasoning must apply to rules that diminish the reliability of the guiltdetermination." (Emphasis added.) 7- And the Supreme Court has long recognized that the question of whether a verdict was unanimous in a death penalty case must not be left to guesswork. In Andres v. United States (1948), 3 3 3 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055, the trial court failed to instruct the jury that it must be unanimous as to both guilt and as to a sentence recommendation. Under the statute involved, a conviction required the death penalty to be imposed unless the jury directly stated in its verdict that it should not be imposed. The court held that where a statute requires jury input on sentencing, unanimity is required, and the jury had not been expressly instructed that it must also reach unanimity as to whether it made no recommendation (thereby triggering mandatory imposition of the death penalty), or whether it made a recommendation that the death penalty not be imposed. Because there was no assurance that the jury knew of the unanimity requirement with respect to sentencing, the Supreme Court reversed, stating: "In death cases, doubts such as these presented here [doubts as to unanimity] should be resolved in favor of the accused." 333 U.S. at 752. In the third McKenzie case, State v. McKenzie (1979), Mont . , 608 P.2d 425, 474, 36 St.Rep. 2157, in discussing the impact of the unconstitutional Sandstrom-type jury instructions on the jury verdicts, I raised the added spector that McKenzie may also have been the victim of less than unanimous jury verdicts because of the many alternative charges to the jury, and because of the failure of the verdicts returned to specify the underlying basis for the conviction. I cited and quoted from United States v. Gipson 5th Cir. y1977), 553 F.2d 453, 457-458, which held that: "[rlequiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury concensus as to the defendant's course of action is also required." The spector of a nonunanimous verdict in a death penalty case has now been raised here. Coleman was charged with three distinct crimes: count I, deliberate homicide; count 11, aggravated kidnapping; and count 111, sexual intercourse without consent. For each of these crimes charged, the jury was instructed that it could reach a verdict based on several alternative theories of criminal responsibility. Under count I, the jury was instructed it could find Coleman guilty of deliberate homicide by use of the felony-murder rule, or by finding that he purposely and knowingly killed Lana Harding. But under the felony- murder rule the jury was given the choice of several felonies, including unspecified felonies, to apply in determining whether Coleman was guilty of felony-murder. Under count 11, aggravated kidnapping (which conviction triggered the death penalty here) the jury was given several choices of what felony Coleman had in mind to commit when he held or secreted Lana Harding. Furthermore, several - these choices of by are unsupported - substantial evidence. Under count 111, sexual intercourse without consent, the jury was given two choices as to proof of the issue of "without consent." One of is - those choices - unsupported by substantial evidence. The trial court gave the jury only a general instruction on unanimity, applicable to all three charges, which stated that ". . . such verdict must be unanimous, which means that all of you must agree on the verdicts." The trial court failed, however, to instruct the jury that its verdict on each charge must be unanimous on one or more of the theories of criminal responsibility. The verdict forms given to the jury by the trial court, provide no basis to determine the underlying statutory theory or theories applied by the jury in finding Coleman guilty. The jury returned guilty verdicts on all three charges, but the verdicts specified only that Coleman was guilty of count I, deliberate homicide; that he was guilty of count 11, aggravated kidnapping; and that he was guilty of count 111, sexual intercourse without consent. It is impossible to determine from these verdicts whether the jury was unanimous on one or more theories of criminal responsibility for an essential element of the crime. In addition, at least one theory of "without consent" submitted to the jury on the charge of sexual intercourse without consent (count 111) is unsupported by substantial evidence. But more important, several theories submitted to the jury on the charge of aggravated kidnapping (count 11) are not supported by substantial evidence. It remains for those more knowledgeable than me to explain how any appellate court can approve the death penalty for the conviction of aggravated kidnapping even though several theories of criminal responsibility as charged in that offense, are not supported by substantial evidence. Both the trial court and the majority have sloughed off this issue as essentially frivolous. In adopting verbatim the State's proposed finding or conclusion, the trial court ruled: "UU. Petitioner contends that he was denied his right to a unanimous jury verdict. But when the instructions are read as a whole, as they must under Coleman 11, 605 P.2d at 1052, the claim fails. See Cupp v. Naughton, 414 U.S. 141, 147. In addition, petitioner's reliance on the federal constitution is misplaced in that the federal constitution does not guarantee the right to a unanimous jury verdict in state felony jury trials. Apodoca v. Oregon, 404 U.S. 404 (1972); Johnson v. Louisiana, 404 U.S. 356 (1972)." This ruling treats the issue in a most summary fashion, evading rather than meeting the question raised, But the majority opinion is even worse, for it fails even to identify the issue, let alone to analyze the issue with respect to the procedural context of the charges, the instructions, and the verdicts returned. The majority disposes of this claim by another omnibus ruling in Part VII of its opinion, disposing of this and four more issues: ". . . Because the post-conviction procedure is a new civil remedy, the failure to present claims in earlier proceedings would not bar them from presentation at this time. However, we have reviewed the claims and find the same to be unmeritorious. It was not error for the court to deny them summarily . . ." The trial court's reliance on Johnson v. Louisiana (1972), uoc. .8gq U.S. 356, and Apodoca v. Oregon (1972), 404 U.S. 404, is misplaced. It is true that both cases hold that a state court is not required by the Sixth and Fourteenth Amendments to guarantee a unanimous jury verdict. But this holding ignores the fact that Montana's Constitution, Art. 11, S 26 ("In all criminal actions, the verdict shall be unanimous"), guarantees a unanimous verdict to all defendants charged in state court, whether it be a felony or even a misdemeanor. In light of our own constitution, the United States Supreme Court would clearly not permit this Court to sanction a death penalty conviction where the verdict may have been less than unanimous. If we did not assure that Coleman had unanimous jury verdicts, we would, in effect, deny him equal protection of law. And that is a federal question. This Court cannot, without denying equal protection of the law, distinguish between a situation where a defendant is charged with one crime and one statutory theory of criminal responsibility, and a situation where a defendant is charged with one or several crimes, but where he is also charged with multiple statutory theories of criminal responsibility. In the first situation, a general instruction on unanimity, in addition to a guilty verdict returned on the only charge and only statutory theory of responsibility for that charge, would assure unanimity. But that is not so in the second situation where a defendant is charged with three crimes, but also charged with committing those crimes in several alternative ways. In this situation, a general instruction as to unanimity will not suffice. Rather, the jury must be instructed that its verdict must be unanimous on any one or more statutory theories applied in reaching its verdict. Further, the verdicts returned should disclose the statutory basis on which the jury reached its verdict. If these requirements are not fulfilled, a defendant charged in such a situation is deprived of equal protection of the law. This situation is especially grievous, where, as here, the defendant has been sentenced to death. THE UNANIMOUS VERDICT REQUIREMENT IN THE CONTEXT OF THE CHARGES FILED: FAILURE OF THE STATE TO FOLLOW STATUTORY PROCEDURES First, we must recognize that in charging Coleman by alleging several statutory theories for the same offense, the State failed to follow proper statutory guidelines. If it had done so, the problems we face here would not exist. The applicable statute, section 46-11-404, MCA, clearly sets out the procedure for the filing of alternative charges, that is, ". . . different versions - - of the same offense." Section 46-11-404,(1),MCA, states in relevant part: "(1) An indictment, information, or complaint mav charae - or more different offenses two - connected together in their commission, different statements - - of the same offense, or two or more - .. . J. 2 - - different offenses of the same class under separate counts.. The prosecution is not required to elect between the different offenses or counts set forth in the indictment, information or complaint, and the defendant may be convicted of any number of the offenses charged. Each offense of which the defendant is convicted must be stated -in theerdic-ffinding of the -- - court." (Emphasis added.) .. ~ Although the statute uses the word "may", the message is that the prosecutor should charge in the manner stated in order to avoid problems such as exist in this case. The prosecutor did charge three separate crimes, and this statute permits him to do so, But the statute also states that if "two or more statements of the same offense" are charged, that it be done so "under separate counts." If that had been done here, the jury could have returned a verdict on each of the separate counts, and therefore the basis for its decision would be specified. The statute also clearly contemplates this procedure by stating that the prosecutor is not required to elect on his theories, but that "each offense of which the defendant is convicted must be stated - - verdict -in the . . ." I read this last sentence to mean, in context with the entire subsection, that if a defendant is charged in separate counts with a different statement of the same offense, a verdict form must be prepared for that separate statement, and the jury must return a verdict on that particular statement of the offense. If this procedure had been followed in this case, we would know the precise basis on which the jury reached its verdict on each charge. It is the State then, who must assume the responsibility for improperly charging Coleman and for setting in motion the ambiguous verdicts. The State's error in not following this statute, is magnified by the failure of the trial court to instruct the jury that its verdict must be unanimous on each statutory theory of criminal responsibility presented to it by the instructions. Again, that fault must be laid to the State and to the trial court. Furthermore, the trial court provided the ambiguous verdicts for the jurys' case. I proceed next to a discussion of the general law in relation to the requirement of a unanimous jury verdict, and then I will discuss the charges, the jury instructions, and the verdicts returned in this case. DETERMINING JURY UNANIMITY WHERE STATUTORY THEORIES OF THE CRIMES ARE CHARGED ALTERNATIVELY IN THE SAME COUNT If only one crime is charged in one count, and if only one statutory theory of that crime is pleaded, the unanimity requirement normally presents no problem. It is sufficient to instruct the jury that it must reach a unanimous verdict. But the problem is entirely different where a defendant is charged with one crime in one count, but where in the same count, he is charged with committing that crime alternatively in several different ways. For example, if a defendant is charged with aggravated kidnapping with a purpose to commit the felony of sexual intercourse without consent, or the felony of aggravated assault, it is not sufficient if six jurors believe that the defendant kidnapped the woman for the purpose of sexual intercourse without consent, and the six other jurors believe that the defendant kidnapped the woman for the purpose of committing aggravated assault upon her. If a jury returns a verdict on this basis, they are not in unanimous agreement, and the verdict cannot stand. In this situation, it is not a question of whether substantial evidence supports both theories, it is a question of whether the jury unanimously agreed to at least one theory. It is up to the jury to reach unanimity and the function of the appellate court is to determine if the jury in fact reached unanimity. DETERMINING JURY UNANIMITY--FUNCTION OF APPELLATE COURT The appellate court, of course, cannot read the jurys' mind, and so review necessarily involves an examination of the charges filed, the instructions given defining the elements of those charges, the instructions given with regard to the requirement of unanimity, and the verdicts actually returned by the jury. Obviously, if the verdict specifies the theory used by the jury in finding guilt, no problem is presented. It is then only a question of examining the evidence to determine if the theory used is supported by the evidence. The question, therefore, nearly always arises where the verdict form is ambiguous and only the jurors know what was actually decided. Ambiguous jury verdicts in criminal cases are frequently the result of a failure to properly charge a crime or crimes, and of a failure to give the jury proper instructions and verdict forms. For example, if a defendant is charged in count I with two or more crimes, what does a jury verdict reveal where it finds that defendant is guilty of count I? Did the jury convict the defendant of one crime or both? Was the jury unanimous with respect to either? United States v. Starks (3rd Cir. 1975), 515 F.2d 112, 116-117. Also see, United States v. Uco Oil Co. (9th Cir. 1976), 546 F.2d 833, 835, cert.den. (1977), 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357. And, of course, the same questions can be asked, although in a slightly different context, if a defendant is charged in count I with one crime, but where several alternative theories are also alleged in that count. If the jury returns a guilty verdict to count I, the questions arise as to whether the jury convicted defendant under one -51- alternative theory, or more than one alternative theory, or under all alternative theories. In addition, the question arises aso to whether the jury reached unanimous agreement on at least one theory? No one knows. One of the first questions is to determine how the jury was instructed on the question of unanimity. Some courts have held that a general instruction on unanimity is sufficient. For example, see, State v. Arndt (1976), 87 Wash.2d 374, 553 P.2d 1328; United States v. Natelli (2nd Cir. 1975), 527 F.2d 311; State v. Williams (Iowa 1979), 285 N.W.2d 248; State v. Souhrada (1948), 122 Mont. 377, 204 P.2d 792. On the other hand, other courts have held that a general instruction is not sufficient; rather, the jury must be specifically instructed that it must reach unanimous agreement on any one or more statutory theories of criminal responsibility as charged by the State. The defect of a general instruction has been pointed out in United States v. Gipson, supra: "The unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged. Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury concensus as to the defendant's course of action is also required." 553 F.2d at 457-458. Implicit in this ruling is a requirement that the trial court instruct the jury that it must reach unanimity on any theory used as a basis to find guilt. Several state courts have held that a jury must be instructed that its verdict be unanimous on one or more of the alternative theories submitted to the jury for its decision. See, for example, State v. Bleazard (1943), 103 Utah 113, . 133 P.2d 1000, 1003; People v Thompson (1956), 144 Cal.App. 2d 854, 301 P.2d 313. And more recently, in cases involving the alternative theories of premeditated murder and felonymurder, Michigan and Washington have held that the jury must be instructed that its verdict be unanimous on at least one of the theories. State v. Golliday (1979), 78 Wash.2d 121, 137, 470 P.2d 191, 201; People v. Embree (1976), 68 Mich.App. 40, 241 N.W.2d 733; People v. Olsson (1974), 56 Mich.App. 500, 507, 224 N.E.2d 691, 693-694. In Olsson, the Michigan Court of Appeals reversed a conviction because jury instructions failed to distinguish between felony murder and premeditated murder, and because the jury was not instructed that it must unanimously agree on the same statutory theory in order to reach a verdict. 224 N.W.2d 693-694. And in Embree, the Michigan Court of Appeals again warned trial courts that they must instruct juries that their verdict must be unanimous on the question of whether the alleged murder was premeditated or whether it was committed in a situation calling for application of the felony-murder rule. 68 Mich.App. 384, 246 N.W.2d at 7. Finally, in Golliday, the Washington Supreme Court held that "instructions must clearly distinguish between the alternative theories and require the necessity for a unanimous verdict on either of the alternatives. 470 P.2d at 201. As I shall later demonstrate in detail, each of the charges involved here was based on alternative allegations. Yet the jury was not told that its verdict must be unanimous as to any one or more theories. In addition, there is no way of telling which theory or theories the jury used to convict Coleman of all three offenses--one of which triggered the imposition of the death penalty. WHY THE CONVICTIONS MUST BE REVERSED Those decisions holding a general unanimity instruction to be sufficient, fail to go beyond this general statement. They ignore the actual doubt that inheres in such a position. Further, they ignore the fact that it is a defect in the judicial system that has created the problem; it is not a problem created by the defendant. The defect can be charged to the State in failing to properly charge the defendant in separate counts, the defect can be charged to the trial court in failing to instruct the jury that its verdict must be unanimous as to any statutory theory or theories of criminal responsibility, and the defect can be charged to the trial court in failing to provide clear verdict forms. Because these decisions ignore these failures in the judicial system, and assume unanimity, analysis is confined solely to reviewing the sufficiency of the evidence support each theory submitted to the jury. Obviously, if the theory of criminal responsibility is clear, and the verdict is clear, review can then center on the sufficiency of the evidence. If the appellate court can state that the jury applied a particular theory or theories in reaching its decision, the court can then confine itself to examining the evidence to determine its sufficiency. it is sufficient, it can affirmed; If not, the conviction must be reversed. But what does the appellate court do if the verdict fails to disclose the statutory theory on which the jury based its decision? An analysis of all theories to determine their sufficiency clearly proceeds on the assumption that whatever theory or theories the jury used, the jury was unanimous. Without this assumption of unanimity, the conviction would be reversed precisely because of the inability of the court to say that the jury verdict was unanimous. But an assumption of unanimity should never be made in a case such as the one involved here, unless the jury has been specifically instructed that it must be unanimous on any statutory theory or theories on which the State has based its prosecution. for reversal. Failure to give this instruction is cause In this event, appellate review would then be confined to determining whether all theories are supported by substantial evidence. If all were so supported, the judgment would be reversed and a new trial ordered under all theories. If not so supported, the case would be reversed with retrial only on those theories supported by substantial evidence. Where the appellate court rests on an assumption of unanimity, however, reversal is required only if all theories are not supported by substantial evidence. But the reason for reversal is not that the jury was less than unanimous on a theory or theory on which it based its conviction, for unanimity is assumed. Rather, the reason for reversal is that the jury may have been unanimous on a theory not supported by the evidence. Uncertainty as to the theory used is the reason for reversal. This rationale is much the same as that used to reverse a jury verdict where the jury is given inconsistent instructions on an important point of law. Reversal is based on a fundamental policy rule that if the appellate court cannot tell whether the jnry followed the correct or incorrect instruction, and it would be unfair to affirm a verdict based on an erroneous instruction. for example, my dissent in State v. Price (1980), See, Mont , - 622 P.2d 160, 37 St-Rep. 1926, where I thoroughly developed this theory of appellate review. The impelling reason for reversal in both situations is uncertainty as to what the jury did where it may have followed an evidentiary . theory not supported by the evidence, or an erroneous instruction, and therefore uncertainty is created as to whether a correct verdict was reached. Where several alternative theories of criminal responsibility are presented to the jury, and where the verdict is ambiguous as to which theory or theories were applied, review of necessity rests on an implicit recognition that no one knows what theory the jury actually followed in reaching its verdict. If the jury had been instructed, however, that it must be unanimous on any theory applied to reach a decision, then an appellate court should assume that the jury was in fact unanimous. But where there is no such instruction, the appellate court should not make this assumption. The question boils down to one of policy--how much leeway can a jury be permitted in reaching its decision? If due consideration is given to the fact that a defendant's liberty or even his life is at stake, that policy should come down on the side of reversal. In a case such as this, a general unanimity instruction should not enshrine the verdict with unanimity. Either an assumption that the jury reached unanimous agreement, or an assumption that the jury did not reach unanimous agreement, without further analysis, fails to deal with the basic problem. An assumption either way still rests on an implicit recognition that the appellate court cannot tell how the jury actually decided the case. In addition to the actual uncertainty resulting from the ambiguous verdict, reversal should also be mandated because the State, not the defendant, caused the problem. The defendant should not suffer from a defect of the judicial system. In charging alternatively in one count rather than charging alternatively in separate counts (see section 46-11-404 MCA, supra) the State initiated the problem of ambiguity. The trial court then compounded the ambiguity by failing to instruct the jury that its verdict must be unanimous on one or more of the alternative theories of criminal responsibility as alleged by the State. And finally, the trial court added again to the problem by submitting to the jury the ambiguous verdict forms. Doubt surely inheres in this situation. This situation was created by the State (the prosecution and the court) and the benefit of this doubt should be given to the defendant. United States v. Andres, supra. In any criminal case, fundamental due process impels a reversal; in a death penalty case such as this fundamental due process mandates a reversal. ANALYSIS OF THE CHARGES FILED, THE INSTRUCTIONS GIVEN, AND THE VERDICTS RETURNED IN THIS CASE The formal charge for each count, the instructions for each count, and the verdict forms for each count, present essentially the same problems. The instructions for count I, the deliberate homicide charge, for count 11, the aggravated kidnapping charge, and for count 111, the sexual intercourse without consent charge, respectively gave the jury several alternative statutory theories on which the jury could base its verdict. The jury was given a general unanimity instruction designed to apply to all three counts. But the jury was not instructed that it must unanimously agree to any one or more of the alternative statutory theories. Furthermore, the verdict forms required nothing more than a determination that the defendant was guilty or not guilty of deliberate homicide, guilty or not guilty of aggravated kidnapping, and guilty or not guilty of sexual intercourse without consent. The general instruction on unanimity (instruction no. 41) stated: "You are instructed that when you retire, you are to elect one of your members as foreman who will sign any verdicts arrived at by the jury . "Such verdicts must be unanimous, which means -that all - - you must agree on the verdicts. - - - - - - - of Verdict forms will be provided for your convenience. "When you have reached your verdicts, you will notify the bailiff who will return you into court." (Emphasis added.) I next proceed to discuss each of the separate charges. COUNT I: THE DELIBERATE HOMICIDE CHARGE, JURY INSTRUCTIONS AND VERDICT The prosecutor used the following language in the formal charge of deliberate homicide (count I): "That the defendant purposely and knowingly caused the death of another human being, to-wit: Peggy Lee Harstad, while engaged in the commission of the following felonies: Kidnapping and Sexual Intercourse Without Consent, involving the use of physical force and violence against the said Peggy Lee Harstad." This charge, unequivocally in the conjunctive, required that the prosecutor prove each of the following facts: 1. That Coleman deliberately and knowingly caused the death of Peggy Lee Harstad; and 2. That he did so while he was engaged in the commission of both kidnapping and sexual intercourse without consent; and 3. That while engaged in the commission of these crimes Coleman used physical force to accomplish them. As it turns out, however, the jury was not instructed in the conjunctive language of the charge itself, but rather was instructed that the jury could convict if it determined either that Coleman knowingly or purposely killed the woman, or that he did so while engaged in the commission of several alternative applications of the felony-murder rule. The jury was instructed in the exact language of count I, but was also instructed on the essential facts to be proved to sustain the charge of deliberate homicide. This instruction (instruction 27) unequivocally told the jury that it had a choice of several statutory theories of criminal responsibility on which to base its conviction: "To sustain the charge of deliberate homicide, the State must prove the following propositions: "First, that the defendant performed the acts causing the death of Peggy Harstad; "Second, that when the defendant did so, "(1) He acted purposely or knowingly or "(2) That he was engaged in the commission of kidnapping - - other felony which involves or any t h e- r e a t of physical force - violence m or -against any individual. "If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty." (Emphasis added.) Under the second proposition to be proved, the jury had several choices in determining how the woman's death came about. First, the jury could determine that Coleman "purposely or knowingly" caused the woman's death. If so, the jury could convict Coleman of deliberate homicide. Second, the jury could convict Coleman of deliberate homicide if it found that he was engaged in the commission of kidnapping. Third, the jury could convict Coleman of deliberate homicide if it found that he was "engaged in the commission of . . .any use or of other felony which involves the - - threat - physical force or violence against any individual." (Emphasis added. ) Therefore, the jury could base a guilty verdict for the charge of deliberate homicide by concluding that Coleman "purposely or knowingly" caused the death of the woman, or by applying the felony-murder rule that Coleman caused the woman's death while he was kidnapping her or while he was committing any other felony that involved using physical force or threatening to use physical force against the woman or any other person. The language "any other felony" provides a much wider range of possible felonies that the jury may have considered beyond that of kidnapping. The verdict returned by the jury, however, provides no basis from which one can determine which statutory theory or theories were used by the jury to convict. The verdict form signed by the jury foreman states only that: "We, the jury, in the above-entitled cause find the defendant guilty of Deliberate Homicide as charged. " Did the jury decide without reference to the felonymurder rule that Coleman had purposely or knowingly killed the woman? Or did the jury decide that Coleman caused the woman's death while kidnapping her? Or did the jury decide that Coleman caused the woman's death while he was engaged in the commission of some other unspecified felony that involved the use of force or a threat to use force? Or did the jury base its verdict on more than one of these statutory theories of criminal responsibility? Finally, -- important, was and most the jury on at least one -- unanimous - - - - - of these statutory theories of - criminal responsibility when it returned its guilty verdict? -.. The trial court failed to instruct the jury that in order to convict Coleman for deliberate homicide, it must agree unanimously upon at least one of the alternative theories of criminal responsibility relied upon by the State. Gipson, supra and Green, supra, require that a jury be so instructed. The verdict does not establish whether the jury found that the defendant purposely or knowingly caused the woman's death or whether it found the defendant guilty by application of the felony-murder rule. And the verdict does not indicate that the jury was in unanimous agreement that the defendant was criminally responsible under any one, specific theory. Based on my previous discussion of the unanimity requirement, the deliberate homicide conviction should not be permitted to stand. It must be reversed and a new trial ordered. Chapman v. California, supra; and see, United States v. Gipson, supra. COUNT 11: THE AGGRAVATED KIDNAPPING CHARGE, JURY INSTRUCTIONS AND VERDICT The same situation occurs with count 11, the charge of aggravated kidnapping, but here policy reasons also require reversing the conviction for the added reason that because of this conviction, Coleman was sentenced to death. Due to the zeal of the trial court in laying the foundation to enable it to impose the death penalty, the jury was required in its verdict to make a special finding that the woman met her death as a result of being kidnapped. Even assuming this to be a unanimous finding, it still cannot be upheld because of the defect in the underlying aggravated kidnapping conviction. The prosecutor charged Coleman with count 11, aggravated kidnapping, in the following language: "That the defendant knowingly or purposely and without lawful authority restrained another person, to-wit: Peggy Lee Harstad, by holding her in a place of isolation and by using physical force to facilitate the commission of a felony, to-wit: Sexual Intercourse Without Consent, - for the and purpose of inflicting bodily injury on and terrorizing the said victim, Peggy Lee Harstad, in the of resulting - - death - Peggy Lee Harstad." (Emphasis added.) Just as the deliberate homicide charge was phrased in the conjunctive, so was the aggravated kidnapping charge phrased in the conjunctive. This being so, the State was required to prove each essential fact charged. However, the jury was not instructed on this charge in the conjunctive, but was instructed in the disjunctive. Instructions 37, 38 and 39 make it abundantly clear that the jury was given several statutory theories of criminal responsibility under which it could find Coleman guilty of aggravated kidnapping. Each of these instructions sets out a different list of essential facts to be proved in order to sustain a conviction. Such an inconsistency should not be permitted in any criminal case, let alone in a death penalty case. Here, this inconsistency is reason enough to reverse the conviction of aggravated kidnapping. How does anyone know which of the inconsistent instructions the jury followed in reaching its guilty verdict, or whether, because of the inconsistencies, the jury followed any of them at all? In instruction 37, the trial court defined the crime of aggravated kidnapping as follows: "A person commits the crime of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person by secreting or holding her in a place of isolation with- - - following purposes: - any of the "(1) to facilitate commission of any felony; " ( 2 ) or to inflict bodily injury or to terrorize the victim." (Emphasis added.) In this instruction the jury was told that it could convict if Coleman, in restraining the woman, had the purpose to commit any felony, - if he had the purpose to inflict or bodily injury, - if he had the purpose - terrorize the woman. or to Then, instruction no. 38 attempted to set out other facts which the State was required to prove, according to the actual charge filed against the defendant: "The offense of Aggravated Kidnapping requires that the voluntary act (the secreting or holding of the lawful authorityin a place - - victim without -of isolation, or the holding of said person by physical force or threats thereof), be done either knowingly or purposely, and in addition thereto, that it be done for one of the following purposes: " (a) to facilitate the commission of any felony (in this case sexual intercourse without consent of the victim, - an aggravated assault upon the or victim), or "(b) to inflict bodily injury on the victim." (Emphasis added.) In this instruction, the jury was told that the State had to prove these facts: First, that Coleman held or secreted the woman, and that he did so either without lawful authority - by using physical force or threatening - or to use physical force. Second, that Coleman had one or more of the following purposes when he held or secreted the woman: (a) the purpose to facilitate the commission of - felony any (here, limited to sexual intercourse without consent or aggravated assault) or (b) the purpose to inflict bodily injury upon the woman. Assuming there is substantial evidence to support each of these alternative theories, there is still no way to tell whether the jury was unanimous in applying any one theory. Instruction no. 38 considerably expands the range of alternatives set out in instruction no. 37. But then instruction no. 39 further muddies the waters by again setting out and expanding the theories of criminal responsibility under which Coleman was charged: "To sustain the charge of aggravated kidnapping, the state must prove the following propositions: "First: That the defendant knowingly or purposely restrained Peggy Harstad by secreting her in a place of isolation; and "Second: That the defendant had the purpose in so acting to facilitate the commission of any felony, or to inflict bodily injury, or to terrorize Peggy ~arstad. 7 "Third, that in so doing the defendant acted without lawful authority. "If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty. "If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty. " (Emphasis added. ) Instruction no. 39 differs considerably from instruction no. 37. The jury was told that it could find Coleman guilty by finding that he had any one of three purposes in restraining or secreting the woman. First, the jury could find Coleman guilty by finding he had the purpose to commit any felony. Although instruction no. 37 also states any felony, instruction no. 39 considerably expands upon instruction 38, which limited the purpose to the commission of sexual intercourse without consent or aggravated assault. Second, the jury could find Coleman guilty by finding his purpose was to inflict bodily injury upon her. This prosecution theory is also stated in instructions no. 37 and 38, and therefore is not inconsistent. Third, the jury could find Coleman guilty by finding his purpose in holding or secreting the woman was - terrorize her. to This language is consistent with instruction no. 37 but is not consistent with instruction no. 38. Because these instructions are inconsistent, there is no way to determine which of the instructions the jury has followed, or whether the jury has disregarded them altogether. Where there has been inconsistent instruction on the essential elements of the crime charged, as there was here, it should not be tolerated on appeal. Here especially, where incon- sistent instruction on the elements of the crime may have led to a conviction resulting in the death penalty, this Court should not have to think twice before reversing the conviction and granting a new trial--reversal should be automatic. The dangers inherent in inconsistent instruction on the essential elements of aggravated kidnapping are further magnified by the general verdict returned by the jury which fails to disclose the theory or theories the jury applied in reaching its verdict. The verdict stated: "A. We, the jury, in the above-entitled cause, find the defendant Guilty of the offense of Aggravated Kidnapping as Charged. We further find that Peggy Harstad [did] [did not] die as a result of said Aggravated Kidnapping. "B. "(Strike out bracketed word or words that do not apply) ." To find Coleman guilty of aggravated kidnapping, the jury had to find that Coleman, in restraining or secreting the'woman, had, as his purpose at least one of those purposes listed in instructions no. 37, 38 and 39. How can we tell which purpose or purposes the jury used.in reaching its decision? And, because the instructions are inconsistent on an essential element of the crime, how can we tell which instruction the jury used? And, because the instructions are inconsistent, can we be sure that the jury used any of the three instructions? The aggravated kidnapping charge must be reversed. First, in a criminal case inconsistent instructions as to an essential element of a crime, requires a reversal and a new trial. See Price, 622 P.2d 160, and cases cited in my dissent (622 P.2d 168, 37 St.Rep. 1935A). Second, the trial court erred in failing to instruct the jury that its verdict must be unanimous on any theory or theories of criminal responsibility charged by the State. People v. Olsson, supra, People v. Embree, supra; State v. Golliday, supra; State v. Bleazard, supra; People v. Thompson, supra; United States v. Gipson, supra. Third, the trial court submitted ambiguous verdict forms to the jury, and the verdict returned fails to disclose the statutory theory or theories on which the jury based its guilt determination. Fourth, consider that substantial evidence does not support each of the statutory theories submitted to the jury. 216, 616 P.2d 628. State v. Green (1980), 94 Wash.2d And finally, consider that the aggravated kidnapping conviction laid the foundation for imposition of the death penalty. Reversal is absolutely required if the judicial system is to maintain its integrity. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT EACH OF THE ALTERNATIVE THEORIES GIVEN TO THE JURY In instruction no. 38, the jury was told that it could convict Coleman by finding that he held or secreted the woman for the purpose of committing sexual intercourse without consent or for the purpose of committing aggravated assault. There is no substantial evidence to support either of these theories. There is not a shred of evidence to establish that when the woman was first held or secreted, Coleman then had as his purpose that of committing sexual intercourse without consent. When the woman was kidnapped, according to the testimony of accomplice Nank, it was their purpose to rob the woman and to kill her. In fact, it was not until sometime later, at Nank's initiation, that Coleman (according to Nank) accomplished an act of intercourse with the woman. The fact that accomplice testimony, however weak (corroborated only by a negroid pubic hair found in the woman's car), indicated that at some time during this episode Coleman had intercourse with the woman, fails to establish that Coleman had intercourse as his purpose in holding or secreting her. Even under holdings which assume jury unanimity by the giving of a general instruction, e.g. State v. Souhrada, supra, the conviction must be reversed because substantial evidence does not support the alternative theory that Coleman held or secreted the woman in order to accomplish an act of sexual intercourse without consent. Nor is there substantial evidence to support a conclusion that Coleman had as his purpose in holding or secreting the woman to commit an aggravated assault upon her. Accomplice Nank testified that he and Coleman planned to rob and kill the first person they got a ride from, but this does not establish that it was Coleman's purpose to commit an aggravated assault upon the woman. Although it can be argued that an aggravated assault would be committed in the process of killing the woman, it nonetheless does not establish that Coleman held or secreted the woman for the specific purpose of committing an aggravated assault. Instructions no. 37, 38 and 39 also each provide that Coleman could be convicted of aggravated kidnapping if he had as his purpose in holding or secreting the woman, to inflict bodily injury upon her. not support this theory, either. Substantial evidence does Accomplice Nank's testimony states only that it was their purpose to rob and kill the person who picked them up. Although it can again be argued that a purpose to kill subsumes a purpose to inflict bodily injury, it nonetheless does not establish the fact that Coleman held or secreted the woman for the specific purpose of inflicting bodily injury upon her. Instructions no. 37 and 39 told the jury that if could convict Coleman of aggravated kidnapping by finding that he had the purpose in holding or secreting the woman, to terrorize her. There is not a shred of evidence to support this conclusion either. Assuming the testimony of accomplice Nank to be true, undoubtedly the woman, at some stage of the events leading to her death, was terrified. But Nank never did testify that he or Coleman had the specific purpose to terrorize the person who gave them a ride-. Based on accomplice Nank's testimony, and assuming it to be sufficiently corroborated, Coleman could have been charged under the aggravated kidnapping statute with having the specific purpose to commit two felonies: homicide. charged. (See, section 45-5-303, MCA.) robbery and But he was not so Rather, he was charged with having the specific purpose, among others, of committing sexual intercourse without consent, of committing an aggravated assault, of inflicting bodily injury, and of terrorizing. evidence supports none of these theories. Substantial Even under holdings which assume jury unanimity by the giving of a general instruction, e.g., State v. Souhrada, supra, Coleman's conviction must be reversed because the jury may have convicted on a theory not supported by substantial evidence. We should be compelled to reverse this conviction and grant a new trial. The jury instructions are inconsistent on the essential elements of the crime charged. There is no assurance that the jury reached a unanimous verdict on at least one of the alternative theories of criminal responsibility set out for establishing Coleman's purpose in holding or secreting the woman. For at least four of those purposes listed in the instructions, there is no substantial evidence there is no corroboration for this testimony. The negroid pubic hair found in the woman's car certainly does not corroborate that he used physical force. There is no assurance that the jury based its conviction on this definition of "without consent." By instruction no. 33, the jury could also convict Coleman by finding that he had intercourse with the woman by threatening her or anyone else with imminent death, bodily injury, or kidnapping. But Nank's testimony negates the conclusion that Coleman accomplished intercourse by making any of these threats. There is no evidence Coleman threatened her or anyone else with imminent death, bodily injury, or kidnapping. The lack of substantial evidence in the record to support this alternative theory of proving the essential element of "without consent," requires that the conviction be reversed. Furthermore, substantial likelihood exists that the jury used a theory not supported by the evidence to convict Coleman of sexual intercourse without consent. The jury made I an additional finding, later held by this Court in Coleman - to not be supported by substantial evidence (579 P.2d at 742-43), that Coleman had inflicted physical injury on her while accomplishing the act of intercourse. Because the jury made this finding, the likelihood is that it determined that Coleman threatened her with bodily injury and then carried it out by actually inflicting physical injury. There is, however, no substantial evidence to support that conclusion and this Court has already determined that the jury erred in finding that Coleman inflicted physical injuries upon her. Beyond the substantial evidence question, however, is still the fact that Coleman may have been deprived of a unanimous jury verdict on the issue of "without consent." There is no assurance that the jury was unanimous on this issue. The jury was not instructed that it must reach a unanimous verdict on any "without consent" theory. Our standard of review is again governed by Chapman v. California, supra. Proper application of Chapman requires that the sexual intercourse without consent conviction be reversed and a new trial granted. See, United States v. Gipson, supra. PART I11 A JUDGE WHO HAS IMPOSED THE DEATH PENALTY ON A DEFENDANT SHGULD NOT SIT ON THAT DEFENDANT'S APPLICATION FOR POSTCONVICTION RELIEF The majority blandly decides in Part I1 of its opinion that general policy considerations require that the sentencing judge or trial judge also preside over a petition for postconviction relief. this holding. As a general proposition, I agree with However, such a holding should never apply in a case where the defendant has been sentenced to death. Further, because of the allegations made in the petition for post-conviction relief, the sentencing judge should have removed himself from the case. Where a sentencing judge has already imposed the death penalty, it offends my sensibilities that this same judge should preside over the defendant's petition for postconviction relief. This is especially so, where the petition not only attacks the validity of the conviction, but also attacks the validity of the sentence and the conduct of the sentencing judge in imposing the sentence. How can this Court give any credence to the decisions of the judge when, in acting on the petition for post-conviction relief, he has simply adopted verbatim the findings and conclusions proposed by the State of Montana. (See Appendix A to this dissent.) If post-conviction relief is to have meaning, and especially in a death penalty case, due process of law must require that the judge carefully consider each of the issues raised by the petitioner. Needless to say, he failed miserably in this case. Additional allegations Coleman makes in his petition for post-conviction relief directly or indirectly attacking the fairness of the sentencing judge, also' required that a different judge preside over Coleman's final attempt to get justice within the state court system. Furthermore, Coleman stated in his petition that he would have to call the sentencing judge as a witness to obtain evidence of his claims. These allegations required, especially in a death penalty case, that the sentencing judge call in another judge to preside over the hearing. Issue C claims that the sentencing judge, without notice to Coleman, amended the information before the trial started, and without legal authority to do so. He alleges this was an amendment of substance because without it, the death penalty could not have been triggered in the event of a conviction for aggravated kidnapping. The sentencing judge added the words to the information "resulting in the ..death of Peggy Lee Harstad." It cannot be doubted that this jury finding triggered the application of the death penalty, for the statutes then mandated the death penalty in the event of such a determination. See, Coleman - 579 P.2d 732. I, The essence of Coleman's claim is that the trial court would get the death penalty in the event of a conviction. To establish the judge's intentions, Coleman wanted the judge to testify. In Coleman - 605 P.2d 1000. I dissented 11, to this Court's decision in effect validating the judge's amendment of the information. (I know of no authority permitting the judge to become an advocate by changing the charge.) This amendment, which mandated the death penalty in the event of a conviction, was the beginning of the orchestration of the proceedings by the trial court which eventually led to Coleman being sentenced to death. Issue Y claims that the judge made his decision to hang Coleman before the judge even held the sentencing hearins. Gol-eman a l l e- q e i l e ~ ~ ~ d e & a - K la c t thU; illef c 2 . RTG Coleman alleges the SV undeniable fact that the sentencing judge arrived at the hearing with his findings and conclusions and death sentence already prepared. I dissented to this procedure in Coleman - 605 P.2d 1000, 11, and concluded that it was a blatant denial of due process of law. Although I believe that the facts speak for themselves, Coleman alleges in Issue Y that he is entitied to have testimony from the sentencing judge himself as to whether he decided to impose the death penalty before he even held the sentencing hearing. Coleman is entitled to that testimony, even though the judge would never admit that he had prejudged the case. In any event, Coleman would be entitled to ask the judge why he had his sentence of death prepared in advance of the hearing, and whether he also had prepared in advance findings and conclusions and a sentence that did not impose the death penalty. Issue BB claims that the sentencing judge failed to consider that Coleman had no previous criminal record of any kind. Coleman alleged he needed the testimony of the sentencing court to determine why he had never considered the negative criminal record, The semantics used by the sentencing court have been the subject of my dissent in Coleman - 605 P.2d 11, lC00, 1002 - 51, and I again elaborate on this issue in part VIII of my dissent. Issue DD claims that the sentencing judge, in ruling that Coleman and Nank burglarized a home earlier on the same day as the crimes involved here, relied solely on the uncorroborated trial testimony of Nank. 11, In Coleman - I con- eluded that the sentencing court had no right to make a ruling based on Nank's testimony, and I further dissented to the use of that ruling in denying Coleman full credit for not having a previous criminal background. to 1040. 605 p.2d 1027 If the sentencing judge made this ruling based on testimony or evidence other than provided by Nank at the trial, Coleman claims he is entitled to know the source, and therefore that he must be permitted to examine the sentencing judge. Coleman should have that right. Issue I1 claims that the sentencing judge in fact decided that the sentencing statutes were mandatory if it found the existence of an aggravating fact and that mitigating factors were not "sufficiently substantial to call for leniency." Therefore, once the sentencing court made these preliminary findings, Coleman claims that the sentencing judge believed that he was required to impose the death penalty. If this was his interpretation, Coleman claims that this interpretation flies in the face of Supreme Court rulings holding that mandatory provisions are impermissible. Because this interpretation does not exist on the face of the findings and conclusions entered by the sentencing judge, Coleman claims that he needs the testimony of the sentencing judge to find out if he in fact interpreted the statute as mandatory. Coleman is entitled to know if this was the interpretation given by the sentencing judge, and because the judge is the only source of this information, his testimony is imperative. Issue JJ claims that the sentencing judge believed he was limited by statute to consider only if mitigating factors were "sufficiently substantial to call for leniency . . ." If this is so, Coleman claims that the sentencing court determined that he could not consider other factors which might affect the decision. Only by the testimony of the sentencing judge, Coleman claims, can it be determined how the judge interpreted his obligation in relation to consideration of mitigating factors. Because the sentencing record is not clear on this point, Coleman is entitled to an explanation. That explanation can come only from the sentencing judge. Issue KK seems to claim that the sentencing judge applied different standards of proof to mitigating factors than he did to aggravating factors. Although the claim is not at all clear, I assume that his claim is that the statute setting forth the aggravating factors has no standard of proof at all, while, on the other hand, the statute setting forth the mitigating factors, requires that these factors be "sufficiently substantial as to call for leniency . . ." The findings and conclusions are silent as to the standards of proof applied to aggravating factors and mitigating factors, and therefore, Coleman claims he is entitled to have the sentencing court testify as to the standards it used in making these findings. Because the sentencing court did not state the standards applied, it is again clear that the only source of what standards were applied must come is testimony from the sentencing judge. 0 Issue 0 s&ems to be similar to Issue KK. Coleman claims that he is entitled to know precisely what standard the sentencing judge used in finding the existence of aggravating factors and the nonexistence of mitigating factors. -75- He also alleges under this contention that the sentencing court may have relied for sentencing, on "evidence, statements, testimony, comments, opinions, letters or telephone calls from other persons, and not presented at any hearing attended by Coleman." Again, the only person who would have this knowledge is the sentencing judge. If any one of these allegations raised by Coleman is not sufficient by itself to have another judge preside over Coleman's petition for post-conviction relief, certainly the force of all of them combined is undeniable cause for the judge to have removed himself, and in the event of his refusal, for this Court to order his removal. The judicial system is somehow demeaned by not having another judge take a look at the case, even though I am fully aware of the inherent back-scratching proclivities of the trial bench. If it was so important that the sentencing judge preside over the petition for post-conviction relief because of his familiarity with the case and with the issues, I then fail to see how his Court implicitly condones his adoption of the State's proposed findings of fact and conclusions of law--hook, line and sinker. In addition, Coleman's allegations made the testimony of the sentencing judge imperative--for the judge was the only source of the evidence needed for Coleman to establish his claim. But because of the judge's refusal to remove himself from the case, the judge effectively prevented Coleman from obtaining evidence on these issues. By writing the opinion so as not to disclose the issues raised, the majority has also denied Coleman the full and fair appellate review to which he is entitled. PART IV THE MAJORITY HAS ERRED IN PERMITTING THE SENTENCING COURT TO APPLY DEATH PENALTY STATUTES TO COLEMAN WHICH WERE ENACTED AFTER THE DATE OF THE CRIMES After our decision in Coleman - the sentencing court I, again sentenced Coleman to death, but this time the court retroactively applied Montana death penalty statutes enacted after the date of the crimes. In Coleman - Coleman claimed 11, that application of these death penalty statutes violated the ex post facto clauses of the United States and Montana Constitutions. He further argued that this retroactive application of statutes violated certain Montana statutes designed especially to prohibit retroactive application of statutory provisions. In holding against Coleman, the majority stretched the law to the breaking point. P. 2d iD0~,1023 - 1026. 605 I dissented on both grounds and concluded that the sentencing court and this Court had violated the United States and Montana Constitutions, as well as existing Montana statutes. 605 P.2d 10fl0, 1023 -.1026. Issues Z and AA, again raise these issues and, of course, Coleman again lost before the sentencing court and before this Court. In the omnibus ruling in Part IV, which decided against Coleman on this and 13 other issues by one stroke of the pen, the majority has declared this issue to be res judicata. I have stated my views once in Coleman 11, and need not repeat them here. I would hold that we have violated the United States Constitution and our own constitution in retroactively applying the death penalty statutes, as well as violating statutes designed to prevent this very kind of unfairness. By properly applying the standards set out in United States v. Sanders, supra, I would again review this question and grant the relief requested. PART V THE SENTENCING STATUTES UNCONSTITUTIONALLY REQUIRE THE DEFENDANT TO PERSUADE THE SENTENCING COURT THAT HIS LIFE SHOULD BE SPARED By Issue 00, Coleman states that section 46-18-305, MCA, unconstitutionally shifts the burden of persuasion to him to prove mitigating facts and to persuade the sentencing judge that his life should be spared. The relevant part of section 46-18-305 provides: ". . . ... the court shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency." This statute undoubtedly places the burden on a defendant to persuade the sentencing judge that his life should be spared. In adopting verbatim the State's proposed findings and conclusions on this point, the sentencing court totally missed the issue raised. The court ruled: "00. Montana's capital sentencing scheme provides for the consideration of mitigating circumstances, a provision which benefits capital defendants. The issue presented involves only sentencing, not guilt or innocence, and petitioner's due process claims are without merit. See Coleman 11, 605 P.2d at 1057, cert.den. 100 n t . m, and State v. Watson, Ariz., 586 P.2d 1253, 1258 (1978), cert.den. 440 U.S. 924. 2752 A The majority, in its omnibus ruling in part V disposed of this and 12 other issues on the ground that they are res judicata and vague. Issue 0 is neither. 0 Cohtrary to.the trial court's ruling that we ruled 11, on this issue at 605 P.2d at 1057, in Coleman - and contrary to the implication of the decision here, we did not rule on this issue. Rather, the majority held in Coleman I1 - that section 46-18-305, MCA does not limit the sentencing court "from considering any aspect of the defendant's record or character as a mitigating factor." This ruling says nothing about the shifting of the burden of persuasion. claim cannot be vague where Coleman asserts that section The 46-18-305 unconstitutionally shifts the burden of persuasion to him to convince the sentencing court his life should be spared. This section unmistakeably shifts the burden of persuasion; the question is whether it is constitutional to do so. Both the trial court and this Court have failed to rule on this issue This question was raised in Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, but the Supreme Court vacated the death sentence on other grounds and so specifically declined to rule on this issue. 438 U.S. 609, n. 16, 98 S.Ct. 2967, N. 16, 57 L.Ed.2d 992, n. 16. I would hold that the Montana statute is unconstitutional. In a capital offense, basic fairness in the sentencing process requires that the state have the burden of proving the existence of aggravating factors, and the nonexistence of mitigating factors. Further, the State should have the burden to convince the sentencing court that the defendant's life should be taken. In all criminal trials, the defendant is presumed innocent, and the State must prove each essential fact beyond a reasonable doubt. 90 S.Ct. 1068, 25 In Re Winship (1970), 397 U.S. 358, L.Ed.2d 368. This rule should not be permitted to evaporate in the sentencing stages where the results of that process may result in a death sentence unless the defendant can prove substantial mitigating factors and can also convince the sentencing court to spare his life. At a sentencing hearing, to keep the burden on the state, the presumption must be that the defendant is entitled to a punishment less than death and the State must prove all those factors necessary to the imposition of the death penalty. Those burdens were not met here, for not only did the statute impose the burden on Coleman that his life -79- should be spared, Coleman also had no meaningful opportunity to present his case because the sentencing court came to the sentencing hearing with an order imposing the death sentence ready to be filed at the end of the hearing. Given this fact, how can anyone conclude that the sentencing court had not already decided to impose the death penalty? PART VI RIGHT TO JURY TRIAL ON DEATH PENALTY ASPECT OF CRIME Issues HH and PP claim that Coleman has a right to a jury trial on the death penalty aspects of this case. In Issue HH, he claims that the jury should have the final right to determine whether he should live or die. By Issue PP, he claims that the jury should have the right to determine the presence or absence of both aggravating factors and mitigating factors. He has raised only one of these issues before, Issue PP, and this Court in Coleman - ruled 11, against him. 605 P.2d 1015 . t ~ 1018. I dissented. 605 ~ . 2 d 1022. By adopting verbatim the findings and conclusions prepared and presented by the State, the trial court, of course, decided against him. (See, Appendix, Issues HH and PP of sentencing judge's order.) In part IV of its omnibus ruling disposing of 27 issues, this Court today rules against him, without ever discussing the issue as to whether the jury should be the ultimate sentencing authority in a capital case. Contrary to the implied assumption of the majority opinion, this issue is not foreclosed. In Lockett v. Ohio, supra, Lockett claims that she had a right to a jury trial on all issues and that a jury should decide the ultimate issue of life or death. The United States Supreme Court, however, vacated the death sentence on other grounds, and expressly reserved judgment on this issue. 98 S.Ct. 2954, 57 L.Ed.2d noted in footnote 10: 973. 438 u.S. 586, The court expressly "nor do we address her contention that the Constitution requires that the death penalty be imposed by a jury . . ." If the death penalty can be called civilized, the only way it can remain so within concepts of contemporary community standards, is to require the jury to make that final, fateful decision. In lkimphrey v. Cady (1972), 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394, the United States Supreme Court recognized that in determining facts and being involved in capital sentencing "the jury serves the critical function of introducing into the process a lay judgment, reflecting values generally held in a community." Later, in Gregg v. Georgia, supra, the Court recognized the need to involve the juries in the capital sentencing process as "a significant and reliable index of contemporary values." 428 U.S. 1531 96 s.c~. 2909, 49 L.Ed.2d 859. And eight years earlier, the Supreme Court stated that jury involvement in a capital case serves "to maintain a link between contemporary values and the penalty system--a link without which the determination of punishment could hardly reflect 'the evolving standards of decency that mark the progress of a maturing society.'" Witherspoon v. Illinois (1968), 391 U.S. 510, 520, n. 15, 88 S.Ct.. 1770, n. 15, 20 L.Ed.2d 776, n. 15. 11, In my dissent in Coleman - I briefly set out my views as to why a jury should be involved in the sentencing process in a capital case, and why a jury should make the final and fateful decision whether a defendant should live or die. P.2d at 1045. My experience since then, in dealing with 605 the capital cases that have been and are now before this Court for review, has convinced me even more of the correctness of this view. In addition to what I stated there, all that I have stated concerning the procedural irregularities and errors that took place before the trial, during trial, and after trial (during the sentencing process) should be considered. The final blow to Coleman in his application for postconviction relief, came when the trial .court adopted verbatim the proposed findings and conclusions presented by the State of Montana, denying any relief to Coleman, and affirming all that the trial court had done before. Combine all the errors or irregularities taking place during the history of this case, and I do not believe too many appellate courts could state in good conscience that Coleman has been granted due process of law sufficient to sustain constitutional attack. Add to that the fact that we are dealing with a death penalty case, and I don't think any appellate court could state in good conscience that Coleman has been granted due process of law. In effect, by refusing to discuss or even identify any of the substantive issues raised by Coleman in his petition for post-conviction relief, the majority here has done nothing more than rubberstamp the findings and conclusions of the trial court and those findings and conclusions came straight from the State .of Montana's typewriter. PART VII DEATH BY HANGING AS CONSTITUTING CRUEL AND UNUSUAL PUNISHMENT Issue TT claims that death by hanging constitutes cruel and unusual punishment under 1972 Mont. Const., Art. 11, 5 22, and under the Eighth and Fourteenth Amendments to the -82- United States Constitution. Coleman points out that only three states permit death by hanging (Montana, Delaware and Washington) and it has been rejected in all other American jurisdictions and in all European jurisdictions. (I note here that since Coleman filed this claim, the Washington State Supreme Court has held that death by hanging constitutes cruel and unusual punishment. State v. Frampton (1981) - Wash. 2d I , 627 P.2d 922.) He alleges that persons executed by hanging die slowly, usually by strangulation, and suffer extreme pain in excess of that inherent in the extinguishment of life. He further alleges that one of the reasons for this slow, tortuous form of death, is that competent hangmen no longer exist in the United States or elsewhere, and therefore the hanging cannot be competently administered. The trial court disposed of this issue by reference to 11, the majority opinion in Coleman -- Mont. , 605 P.2d 1000, 1059, where the majority simply deferred to the legislature and stated: "We have no power to change these settled provisions of the law, nor can we say that hanging is constitutionally cruel or unusual." The majority opinion has simply denied this claim in its omnibus ruling in part VI of the opinion, disposing of this and 6 other claims. The court states that it has no power to change the law, but the simple fact is that courts have from the beginning of the separation of powers, been changing the law--yes, even settled provisions of law. The real reason is simply that the majority does not want to change the law in this case. But Coleman claims here that he is entitled to an evidentiary hearing to establish that death by hanging is in fact cruel and unusual. This question cannot be rationally decided without first considering the scientific or expert evidence that is now available. The Washington Supreme Court did so, and quoted some graphic testimony and statements as to the barbarity of hanging as the method of inflicting capital punishment. 627 P.2d 934 to 936. The United States Supreme Court has repeatedly stated that the Eight Amendment--prohibition against cruel or unusual punishment--"must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v, Dulles (1958), 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630. Using this standard ". . . what might have been common and not thought to be cruel or unusual in 1789 might be completely obnoxious to society in the United States today." Owens-El v. Robinson (1978), 442 F.Supp. 1368, at 1375. The legislature certainly does not have the right to be the last word on the constitutionality of its own legislation, but that is precisely the effect of the court's opinion in Coleman - and ratified here today sub11, silencio. The fact that the legislature has provided for hanging as the prescribed method of carrying out the death penalty, or the fact that the legislature has refused to change the method of execution, does not enshrine the legislation on a throne of invincibility from constitutional attack. I would grant Coleman an evidentiary hearing on this issue. Perhaps the evidence would be revealing to all, perhaps even to members of the legislature. In addition to what I have stated h e r e q ' b - J/ dissent should -- bc, parts 11, I11 and VIII of this C C ~ ) S ; ~ , F I - ~ ~ . The combination of these factors screams loudly for a constitutional requirement that only a unanimous jury should be permitted to make the fateful decision of life or death. My experience has been that the judiciary of this state is incapable of fairly and rationally administering a death penalty law. Only by interposing a jury between the defendant and the judiciary can there be any assurance of decisions arrived at only after fair consideration of all the facts. PART VIII DENIAL OF MEANINGFUL APPELLATE REVIEW Issue QQ alleges that in our first review of the death 11) sentence (Coleman - we denied him meaningful appellate review. In Coleman - after reviewing several factors which 11, the majority had either overlooked or ignored, I stated that ". . . it is virtually impossible to rationally and fairly administer and enforce a statutory scheme of capital punishment." 605 P.2d at 1045. As this, and two other death penalty cases continue to tortuously wind their way through this state's court system, I am more convinced of the correctness of this statement. The sentencing courts and this Court just seem to have approached these cases with their eyes closed. Similar views were stated by Justice Marshall in a concurring opinion in the case of Lockett v. Ohio, supra, where he expressed disgust with the way the trial courts and appellate courts of the various states were administering their capital punishment statutes in an apparent attempt to meet minimum constitutional standards. He stated: "The opinions announcing the judgment of the Court in Gregg v. Georgia, 428 U.S. at 188-198 (opinion of Stewart, Powell and Stevens, J. J.) Texas, 428 U.S. 262, 271-276 (1976) (opinlon of Stewart, Powell, and Stevens J. J.), aurak-6~. and Profitt v. Florida, 428 U.S. 242, 259-260 (1976) (opinion of Stewart, Powell, and Stevens, J. J.), upheld the constitutionality of the death penalty, in the belief that a system providing sufficient guidance for the sentencing decision maker and adequate appellate review would assure 'rationality,' 'consistency,' and 'proportionality' in the imposition of the death sentence. Gregg v. Georgia, supra, at 276. That an Ohio trial court could impose the death penalty on petitioner under these facts, and that the Ohio Supreme Court on review could sustain it, cast strong doubt on the plurality's premise that appellate review in state systems is sufficient to avoid the wrongful and unfair imposition of this irrevocable penalty." 438 U.S. at 621, concurring opinion. In his petition for post-conviction relief, Coleman outlined how this Court had failed to adhere to the statutes requiring mandatory appellate review. In disposing of this contention, the trial court simply adopted the one sentence conclusion proposed by the State: "QQ. The review provided petitioner by the Montana Supreme Court was carefully outlined and applied in Coleman - 605 P.2d at 1020-21." 11, In Coleman 11, - I dissented to our review and concluded that it was woefully inadequate. 605 P.2d 1032-1047. I fail to com- prehend how the majority can, in its omnibus ruling in section five, dispose of Issue QQ and 12 other issues, by the bland statement that the trial court properly dismissed this claim "as res judicata because the vague new allegations do not affect the validity of the prior determination of the Court . . ." If this Court has never before decided the issue of whether we denied Coleman meaningful appellate review in 11, Coleman - I fail to see how this issue can be res judicata. In addition, I fail to see that Issue QQ is vague where Coleman cites a specific statute that this Court has absolutely failed to adhere to in reviewing the death sentence. In Issue QQ, Coleman raises two questions concerning our failure to give him meaningful appellate review. He has, however, throughout his petition, raised other issues concerning our review, and I feel it is appropriate to consider these issues in this portion of my dissent. I will first discuss the issues raised in Issue QQ. Coleman first claims, and correctly so, that this Court has never promulgated procedural rules to implement the mandatory requirements for determining whether a sentence of death is disproportionate to the sentence imposed in similar cases. Second, he claims, and correctly so, that our review contemplated by statute and mandated by Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 894, has s59 failed to consider other cases where a defendant has been convicted of deliberate homicide or aggravating kidnapping. This Court is specifically required to grant automatic proportional review to all death sentence, and to promulgate rules under which the review is conducted. In response to decisions of the United States Supreme Court, the legislature enacted section 46-18-310, MCA, and subsection 3 specifically states that the Montana Supreme Court shall determine: "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." To facilitate this review, section 46-18-308, MCA, states in part that the automatic review mandated by statute ". . . shall - - - in accordance with be heard rules -- promulgated - - Supreme Court." by the (Emphasis added.) Coleman rightly claims that this Court has never promulgated the rules to provide method and procedure under which death sentence are reviewed for proportionality. He further claims, and this cannot be denied, that he has asked this Court to promulgate the rules. The simple fact is that even to this date, this Court has not yet promulgated those rules. HOW, then, is Coleman to get the review to which he is entitled? How can this Court sanction the imposition of the death penalty whenit has failed to first comply with the statutory requirement that we adopt rules setting forth the method by which proportional review is conducted? Obviously, a federal court will have to answer this question. A second, and even more serious clai~becauseit involves the actual proportional review conducted by this Court, is that we failed to comply with the proportional review mandated by Gregg v. Georgia, supra. Gregg requires that on mandatory review the state's highest appellate court, that the court consider "whether the sentence -- death of is excessive - disproportionate - - penalty imposed or to the in Gimilar cases, considering -- crime - - defendant." both the and the This language means that our system of review must allow access to and a consideration of all reasonably recent cases in this state where a defendant has been convicted of either deliberate homicide or aggravated kidnapping. Our duty is to review each of these cases and consider the nature of the crime involved and the individual characteristics of the persons who committed the crimes. We must then compare those situations with the crimes committed here and with the personal characteristics of the person involved here. This Court has wholly failed to provide proportional review as mandated by Gregg, and I therefore fail to see how this Court can sanction the imposition of the death penalty. I would hold, therefore that on Issue QQ alone, Coleman is entitled to again come before this Court for proportional review--after this Court has promulgated the rules required by statute. I next consider our review of other issues raised by Coleman concerning the sentencing court's findings and conclusions, and our failure to review these issues. By either overlooking or cavalierly disposing of the issues without discussion or even identification, we have further denied meaningful appellate review to Coleman. I repeat that we are statutorily required to review all death penalty sentences to see that there has been full statutory compliance in the sentencing process. We are further required to review all of the sentencing court's findings and conclusions, even if no issue concerning them has been raised by the defendant. Section 46-18-310, MCA. In Issue BB and Issue DD, Coleman alleges failure of the sentencing court and this Court to give consideration to the fact that he had no criminal background--he had not even been charged or arrested for a misdemeanor. Issue BB claims that the sentencing court should have ruled as a matter of law that Coleman had no significant history of criminal conduct. Issue DD claims that the sentencing court improperly found that, on the same day as the offenses charged here, Coleman and Nank had burglarized a house in Roundup, Montana, and therefore that Coleman was not really entitled to a designation of having no significant criminal conduct. Coleman further claims that the trial court based this burglary finding on Nank's uncorroborated trial testimony. It was error to base this finding on Nank's uncorroborated testimony. And it was also error because Coleman had no opportunity to cross-examine Nank at the sentencing hearing; nor did he have any opportunity to offer rebuttal evidence at a sentencing hearing. This finding was first revealed while the trial court was reading the death sentence. Despite these substantial claims, the majority here has responded only in silence. I dissented in Coleman - to the I1 sentencing court's findings and to the methods by which it made its decisions. 605 P.2d 1035-1036. The undeniable fact is that the sentencing court used Nank's trial testimony as the basis to find that Coleman had committed a burglary on July 4, 1974, and therefore that Coleman was not entitled to full credit for having no significant history of criminal conduct. In fact, I concluded that by its findings and conclusions, the sentencing court had stretched the law to the breaking point in order to impose the death penalty. 605 P.2d 1039-1040, Our failure to grant meaningful appellate I1 review in Coleman - further amplified the failure to follow the statutory guidelines. Based on the record before the sentencing court--Coleman had never before been arrested or charged for any kind of offense-I believe that compliance with section MCA, requires that the sentencing court find as a matter of law that Coleman had "no significant history of criminal conduct." The sentencing court's reliance on Nank's uncor- roborated trial testimony, the failure of the trial court to reveal the basis of this finding so that Coleman could crossexamine Nank at the sentencing hearing or present rebuttal evidence, convinces me that the sentencing court had sealed Coleman's fate with the hangman long before the sentencing hearing. No appellate court should tolerate the procedures used by the trial court in imposing the death penalty, for they constitute a flagrant denial of due process of law. This predetermination to impose the death penalty is further illustrated by the sentencing court's failure to consider Coleman's particularized circumstances, a requirement mandated by Gregg v. Georgia, supra, and also required by statute. Section 46-18-302, MCA. In my dissent in Coleman 11, I emphasized that the findings and conclusions used as the foundation for the death sentence, are barren of any reference to Coleman's particularized background. P.2d 1036-1038. 605 How can we, as an appellate court, know that Coleman's particularized background was considered, and what weight was given to it, unless both are mentioned in the findings and conclusions? This is yet another reason why the sentencing procedures utterly failed to comply with the spirit of the mandate contained in Gregg v. Georgia. Issue Y again claims that Coleman was denied due process of law when the sentencing court came to the sentencing hearing with the judgment of death already prepared and ready for filing at the end of the hearing. Section 46-18-310 (1), MCA requires that this Court review any death sentences to determine if it was "imposed under the influence of passion, prejudice, or other arbitrary factor." Proper application of this statute requires that this Court set aside the death penalty because of the ugly implication inherent in the sentencing judge coming to the sentencing hearing armed with his death judgment. I dissented to the judge's conduct in Coleman - 605 P.2d 11, lOOQ IQ22to 1051, and I do so again. It is beyond my comprehension that this Court can uphold this conduct. But recognizing that this Court is insensitive to this issue, the combination of all the factors set forth in my dissent, should require the death penalty to be set aside as violating the statutory guidelines of section 46-18-302, snpra. Our failure to give Coleman meaningful appellate review in Coleman - is only compounded by our failure today to undo I1 the injustice of that decision. This is Coleman's last chance to obtain review within the state system. But this Court has not even attempted to fairly consider the issues raised. Mandatory appellate review of death sentences, required by Gregg v. Georgia, and rsept. by statute, has failed abysmally in this case. The words of Justice Marshall in Lockett v. Ohio, supra, are again appropriate to end this discussion of our denial of meaningful review to Coleman, for they express exactly what has happened to each of these death cases that has come before this Court: ". . . That an Ohio trial court could impose the death penalty on petitioner under these facts, and that the Ohio Supreme Court on review could sustain it, cast strong doubt on the plurality's premise that appellate review in state systems is sufficient to avoid the wrongful and unfair imposition of this irrevocable penalty." (438 U.S. at 621, concurring opinion. Substitute the word Montana for the word Ohio, and Justice Marshall's comments fit the Montana situation like a glove fits a hand. The opinion written by this Court today has denied Coleman due process of law both on questions arising from his conviction and on application of the death penalty. CONCLUSION The majority opinion has one salutary aspect. It has finally freed Coleman from the yoke of the state court system and permits him to pursue his claims in federal court. A federal court cannot help but be more receptive to the important questions that Coleman has raised but this Court has turned down by wholesale and summary disposition. I cannot conceive that this case will leave a federal court with the abiding conviction that justice was done. 11 " I N THE DISTRICT COURT O THE SIXTEENTH J U D I C I A L DISTRICT F O T E STATE O MONTANA, F H F I N AND F R THE O ~ O ~ E B U ~ J f/ &/y''-~,-&' (7/ 1 f l f i h ~ ) c i v i l ( ~ o . 9115 ) DEWEY EUGENE COLEMAN, C r i m i n a l No. - ~ CLERK e & 2 ' p 1083 Petitioner, ) -VS I ) ) - COURT'S CONCLUSIONS, MEMORANDUM & O R D E R . 1 THE STATE O MONTANA, F Respondent, ) -_-------______--_--------------.-----------------------\ The Court h a v i n g c o n s i d e r e d b r i e f s and proposed f i n d - l2 l3 / 1 i n g s and c o n c l u s i o n s of p e t i t i o n e r and r e s p o n d e n t , a d o p t s t h e f i n d i n g s and c o n c l u s i o n s of r e s p o n d e n t , as follows: PROCEDURAL BACKGROUND Fol'lowing t h e October 6 , 1980, d i s s o l u t i o n of J u s t i c e I M a r s h a l l ' s s t a y of p e t i t i o n e r ' s e x e c u t i o n d a t e , respondent moved t h i s c o u r t t o s e t a new e x e c u t i o n d a t e f o r d e f e n d a n t . T h i s c o u r t t h e n n o t i f i e d t h e p a r t i e s t h a t a new d a t e of e x e c u t i o n would b e s e t on October 24, 1980. On t h e d a t e s e t f o r t h i s h e a r i n g , p e t i t i o n e r f i l e d a p e t i t i o n f o r postconvict i o n r e l i e f r a i s i n g 49 s e p a r a t e c l a i m s f o r r e l i e f . 23 24 1 1 In a d d i t i o n , p e t i t i o n e r s u ~ m i t t e d motion moving t h e c o u r t t o a " e n t e r an o r d e r r e c u s i n g i t s e l f a s t h e p r e s i d i n g judge i n t h i s cause. " On t h e same day, p r i o r t o i t s c o n s i d e r a t i o n of t h e motion t o r e c u s e , t h i s c o u r t g r a n t e d a motion s u b m i t t e d by 29 30 !1I respondent and o r d e r e d p e t i t i o n e r t o submit an amended p e t i t i o n w i t h i n t e n ( 1 0 ) days " r a i s i n g a l l c o n s t i t u t i o n a l grounds f o r r e l i e f . . . of which h e h a s knowledge a t t h i s t i m e and t o s o a l l e g e i n h i s amended p e t i t i o n . " The motion - h t o r e c u s e was t a k e n under advisement b y t h i s c o u r t p e n d i n g the s u b m i s s i o n o f a r e s p o n s e b y r e s p o n d e n t and a r e p l y b y petitioner. The c o u r t d e n i e d the m o t i o n t o r e c u s e on November 2 1 , 1980. *Vn3 A3c P e t i t i o n e r f i l e d h i s amended p e t i t i o n f o r p o s t c o n v i c t i o n r e l i e f o n December 1 2 , 1 9 8 0 , t h i s t i m e r a i s i n g 5 2 s e p a r a t e c l a i m s f o r relief. The p a r t i e s thereafter e n t e r e d a s t i p u l a t i o n t o the e f f e c t t h a t r e s p o n d e n t w o u l d f i l e i t s m o t i o n t o d i s m i s s p e t i t i o n e r ' s amended p e t i t i o n on D e c e m b e r 22, 1980. P e t i t i o n e r would f i l e h i s a n s w e r i n g brief on o r b e f o r e J a n u a r y 5, 1 9 8 1 , a n d r e s p o n d e n t w o u l d r e p l y b y J a n u a r y 12, 1981. Finally, a h e a r i n g o n the m o t i o n t o dismiss was s c h e d u l e d f o r J a n u a r y 1 5 , 1981. T h e m o t i o n t o d i s m i s s came o n r e g u l a r l y f o r h e a r i n g o n the 1 5 t h d a y o f J a n u a r y , 1 9 8 1 , w i t h p e t i t i o n e r , Dewey E u g e n e Coleman, a p p e a r i n g i n p e r s o n a n d t h r o u g h h i s c o u n s e l , C h a r l e s F. " T i m e r " Moses, a n d t h e S t a t e ' o f M o n t a n a , a p p e a r i n g t h r o u g h J o h n H. M a y n a r d , A s s i s t a n t A t t o r n e y G e n e r a l , a n d J o h n S. F o r s y t h e , Rosebud County A t t o r n e y , whereupon o r a l argument was p r e s e n t e d t o the C o u r t . P e t i t i o n e r and r e s p o n d e n t w e r e directed t o s u b m i t p r o p o s e d f i n d i n g s a n d c o n c l u s i o n s t o t h e c o u r t b y F e b r u a r y 1, 1 9 8 1 , a t w h i c h t i m e t h e m a t t e r w o u l d be deemed s u b m i t t e d , The c o u r t h a v i n g d u l y c o n s i d e r e d the matters s u b m i t t e d t o i t , NOW THEREFORE, I T I S ORDERED a s f o l l o w s : R e s p o n d e n t ' s MOTION TO DISMISS p e t i t i o n e r ' s PETITION FOR POSTCONVICTION RELIEF s h o u l d be, a n d hereby i s , g r a n t e d . CONCLUSIONS 7 c THE M O T I O N TO DISMISS I S GRANTED BECAUSE THE AUTOMATIC REVIEW PROCEDURES O TITLE 46, CHAPTER 18, PART 3, O F F THE MONTANA CODE ANNOTATED A R E THE EXCLUSIVE REVIEW PROCEDURES AFFORDED PEPSONS UNDER SENTENCE O DEATH F I N MONTANA. I. 1 I 2 3 3G9 4 The n e c e s s i t y of f i n a l i t y i n c r i m i n a l p r o c e e d i n g s , 5 e s p e c i a l l y those involving t h e death penalty, 6 coupled w i t h t h e a u t o m a t i c and comprehensive r e v i e w p r o c e d u r e s i n d e a t h 7 8 p e n a l t y c a s e s p r o v i d e d f o r i n Montana s t a t u t e s , e s t a b l i s h 9 t h a t t h e Montana l e g i s l a t u r e d i d n o t i n t e n d t h a t t h e p o s t - 10 c o n v i c t i o n p r o c e d u r e a c t a f f o r d d e f e n d a n t s c o n v i c t e d of 11 c a p i t a l o f f e n s e s a "second a p p e a l . " T i t l e 46, C h a p t e r 1 8 , 12 p a r t 3, M.C: A. c l e a r l y c o n t e m p l a t e s an a u t o m a t i c , compre- 13 h e n s i v e , and f i n a l a d j u d i c a t i o n of i s s u e s p r e s e n t e d i n d e a t h 14 15 penalty cases. 16 f a c t i n p e t i t i o n e r ' s c a s e when i t s t a t e d t h a t " . . . c o m p l e t i o n 17 of t h i s r e v i e w w i l l mark t h e end of s t a t e a c t i o n upon t h i s 18 cause. 19 .." The Montana Supreme C o u r t r e c o g n i z e d t h i s S t a t e v. Coleman, Mont., (1979), c e r t . denied, 100 S.Ct. 605 P.2d 1000, 1006 2952 ( 1 9 8 0 ) . 20 To a l l o w p e t i t i o n e r t o s e e k p o s t c o n v i c t i o n r e l i e f i s , 21 i n e f f e c t , t o provide p e t i t i o n e r with t w o appeals, a r e s u l t 22 23 n o t c o n t e m p l a t e d by t h e l e g i s l a t u r e o r t h e Montana Supreme 24 Court, 25 review i n c r i m i n a l c a s e s . 26 S t a t e s a r e f r e e t o d e v i s e t h e i r own s y s t e m s o f C a r t e r v. Illinois, 173, 329 U.S. Repetitious appeals i n death panalty cases a r e 175 ( 1 9 4 6 ) . 27 n o t c o n s t i t u t i o n a l l y r e q u i r e d and a c c o m p l i s h l i t t l e more 28 than t o f r u s t r a t e public confidence i n t h e e n t i r e criminal 29 30 j u s t i c e system. 31 11. THE MOTION TO DISMISS I S FURTHER GRANTED A TO 27 OF S PETITIONER'S CLAIMS BECAUSE THEY ARE BARRED BY RES 32 JUDICATA. Star Printing G . J MlIes City. Mont. r.*-,=i -3- --* n--~--m-~ - s -. r r - ~ m w ' 1 , - -2 -, >e- * :r-. - - , - ".'r,-.." * 3 . - 9 >+r* Z ? . <=I" m . -;,- w - **z-. ~ . ., r * . . -, ~ ~ ~ . 1 . ~ ~ r ~ ~ ~ - .. - - m--+ --- r ~ ~ w- y ~ u r * r , - T h e f o l l o w i n g 27 i s s u e s have b e e n p r e v i o u s l y c o n s i d e r e d a n d d e c i d e d b y the Montana Supreme C o u r t a n d p e t i t i o n e r h a s a l l e g e d n o new f a c t s o r l a w w i t h r e s p e c t t o these i s s u e s t h a t m i g h t affect the r e s u l t r e a c h e d i n h i s p r i o r a p p e a l s : F , G , H, 1, J, L, M, N, P, R, S , T , V, W, Y, Z , AA, DD, GG, HH, 11, JJ, KX, LL, MM, NN, a n d PP. E a c h o f these c l a i m s h a s b e e n c o n s i d e r e d b y t h e M o n t a n a S u p r e m e C o u r t i n S t a t e v. C o l e m a n , M o n t , , 5 7 9 P.2d 732 ( 1 9 7 8 ) , h e r e a f t e r r e f e r r e d t o a s C o l e m a n 2, o r i n S t a t e v. C o l e m a n , Mont., 6 0 5 P.2d 1000 ( 1 9 7 9 ) , cert. d e n i e d 1 0 0 S.Ct. 2952 ( 1 9 8 0 ) , hereafter referred t o a s Coleman G. T h e c l a i m s were previously decided against p e t i t i o n e r i n p r i o r appeals a t t h e £01-lowing p l a c e s . F. P e t i t i o n e r ' s c h a l l e n g e t o the j u r y p a n e l was rejected i n Coleman G. I 579 , P.2d a t 746-7, cert. d e n i e d 100 P e t i t i o n e r ' s c l a i m r e g a r d i n g the a d m i s s i o n i n t o e v i d e n c e of S t a t e ' s e x h i b i t No. I, - 5 7 9 P.2d a t 751. 20 was rejected i n Coleman Furthermore, the c l a i m i n v o l v e s a q u e s t i o n of s t a t e l a w a n d does n o t a m o u n t t o a c o n s t i t u t i o n a l deprivation, H. P e t i t i o n e r ' s c l a i m in;olving his challenge to N a n k ' s c o m p e t e n c y a s a w i t n e s s w a s addressed i n C o l e m a n 2, 579 P.2d a t 748. I. P e t i t i o n e r ' s c l a i m r e g a r d i n g Nank's testimony concerning his conversations w i t h law enforcement officials I I I was rejected i n Coleman J. p, 5 7 9 P.2d a t 749. P e t i t i o n e r ' s c l a i m r e g a r d i n g r e s t r i c t e d cross- e x a m i n a t i o n was rejected i n Coleman -4- 1 579 , P.2d a t 747. . r - * " ", - -.-,* - . ----.-. b - -" --- * % d I1 f II I I L. - L. Pettioner's claim concerning the admission into evidence of Exhibit No. 60 was rejected in Coleman 2, 3 ?47'1 579 P.2d at 752. 4 M. Petitioner's claim in connection with his attempt- 5 ed cross-examination of witness Hippard was rejected in I 7 1 Coleman 2, 579 P.2d at 747. N. 8 9 Petitioner's contention regarding evidence of the heighth and fall of the water in the Yellowstone River at lo the scene of the crime was resolved against him in Coleman 11 I -f 579 P.2d at 753. 12 P. Petitioner's contention with respect to Instruction 13 No. 22 was ruled on in Coleman 1,579 P.2d at 749. It was 14 again considered in light of Sandstrom v. Montana., in 15 Coleman 11, 605 P.2d at 1052-4, cert, denied 100 S.Ct, 2952. 26 I7 R. 18 Petitioner's offered Instruction No. 14 was deter- mined to have been properly refused in Coleman I 579 P.2d , 13 at 750. 20 S. Petitioner's claim involving Instruction No. 16 was 21 rejected by the Montana Supreme Court in Coleman I, 579 22 P2d at 750. 23 24 T. Petitioner's claim that his offered Instruction 25 No. 35A should have -been given was considered and rejected 26 in Coleman &, 579 P.2d at 750-1. 27 V. Petitioner's claim regarding the denial of his 28 motion for new trial on the grounds of newly discovered 29 evidence was rejected in Coleman 2, 579 P.2d at 753. 30 31 W. 32 Petitioner's ex post facto claim that Montana did not have a constitutional death penalty statute at the time Sa tr Mnting Ca. ld!lss City, Mon:. -5- I n T * petitioner committed the crime for which he received the death penalty was considered in Coleman Y. G, 605 P. 2d at Petitioner's claim regarding his opportunity to present argument concerning his sentence following remand after Coleman L was rejected by the Court for the reasons stated in Coleman 11, 605 P.2d at 1018. 2. Petitioner's claim regarding "retroactive" appli- cation of the 1977 death penalty amendments was considered in Coleman AA, x, P.2d 605 at 1012. Petitioner's claim that his sentence violates constitutional provision against ex post fact laws was rejected in Coleman x,605 P.2d at 1015, cert. denied 100 Sect. 2952. DD. Petitioner's claim regarding the district court's finding that he had participated in a burglary the same day he committed these other crimes was considered in Coleman 11, - 605 P,2d at 1020. GG. Section 46-18-302, MCA. Petitioner's claim regarding the exclusion of two jurors was rejected in Coleman HH. 2, 579 P.2d at 741. Petitioner's claim with respect to jury partici- pation in the sentencing procedure was rejected by the Montana Supreme Court in Coleman 11. x,605 P,2d at 1017. Petitioner's argiunent that Montana's death penalty statutes in effect impose a mandatory death penalty was rejected in Coleman 11, 605 P.2d at 1016. JJ. Montana's scheme for the consideration of miti- gating circumstances was found to pass constitutional muster '1 I I i n Coleman 2 KK. 3 G, 0 5 6 37'3 P.2d a t 1 0 1 6 - 7 P e t i t i o n e r ' s further contention regarding "stand- a r d s of p r o o f " w a s r e j e c t e d i n C o l e m a n =, 6 0 5 P. 2 d a t 1 0 5 7 . 4 LL. P e t i t i o n e r ' s d o u b l e j e o p a r d y c l a i m based o n h i s c o n v i c t i o n s f o r d e l i b e r a t e h o m i c i d e a n d a g g r a v a t e d kidnapping are w i t h o u t m e r i t . 7 cert. d e n i e d 100 S.Ct. 8 MM. 1 18 Coleman I J , 605 P.2d a t 1017, 2952. P e t i t i o n e r ' s d o u b l e j e o p a r d y c l a i m t h a t he c a n n o t be c o n v i c t e d o n b o t h c h a r g e s w a s r e j e c t e d . 11 P.2d s, 6 0 5 Coleman a t 1017. 12 NN. P e t i t i o n e r ' s c l a i m r e g a r d i n g s e n t e n c e r e v i e w by 13 t h e S e n t e n c e R e v i e w D i v i s i o n o f the M o n t a n a S u p r e m e C o u r t 14 h a s b e e n rejected b y the Montana Supreme C o u r t a n d the :5 U n i t e d S t a t e s Supreme C o u r t . 16 C e r t . d e n i e d 1 0 1 S.Ct. 255 17 IS PP. 19 P e t i t i o n e r ' s c l a i m w i t h r e s p e c t t o the r e q u i r e n e n t of a j u r y t r i a l o n a g g r a v a t i n g f a c t s a n d m i t i g a t i n g c i r c u m - 20 s t a n c e s w a s rejected i n C o l e m a n 1 , 6 0 5 P . 2 d a t 1 0 1 7 . 1 See, 21 rake ' v s Z a n t , U. 22 4 9 U.S.L.W. 3 3 7 1 ( 1 9 8 0 ) (White, J . , d i s s e n t i n g f r o m d e n i a l of c e r t i o r a r i ) . 23 24 S., 1 25 I s s u e s r a i s e d i n the p r i o r r e v i e w o f p e t i t i o n e r ' s c o n v i c t i o n which h a v e b e e n c o n s i d e r e d on their m e r i t s and 26 d e t e r m i n e d a g a i n s t h i m a r e res j u d i c a t a and he i s n o t 27 e n t i t l e d t o h a v e those i s s u e s r e d e t e r m i n e d , In r e Quigq, 28 1 6 8 Mont. 512, 5 4 4 P.2d 4 4 1 ( 1 9 7 6 ) , c e r t . d e n i e d 4 2 5 U.S. 29 9 9 4 ( 1 9 7 6 ) ; O r r i c e r v. S t a t e 8 5 S.D. 30 293, 181 N.W.2d 31 1 ( 1 9 7 0 ) ; W i l l i a m s v. U n i t e d S t a t e s , 4 2 6 F . 2 d 3s 1 9 7 0 ) , c e r t . d e n i e d 4 0 0 U. S . 881. Star Printing Co. VAes City, Man:. II 461 253 ( 9 t h C i r . P r i o r d e t e r m i n a t i o n of a n issue constitutes a final adjudication of that issue. State v. Coleman, Mont., 605 P.2d 1000, 1002. As a result, the petition for postconviction relief is dismissed with respect to these claims. 111. THE MOTION TO DISMISS IS FURTHER GWJTED AS TO 13 OF PETITIONER'S CLAIMS BECAUSE, WHILE TZEY INCLUDE VAGUE NEW ALLEGATIONS, THEY ARE TOO VAGUE, TO STATE N E W CLAIMS, OR ARE UbJSUPPORTED BY AUX9ORIT' AND THEREFORE BARRED BY RES JUDICATA. The following 13 issues have been previously considered and decided by the Montana Supreme Court. B, E, K, Q, U, X, CC, EE, FF, 00, QQ, RR, a n d X X The validity of the prior determination of the Montana Supre~e Court with respect to these issues is not called into question by petitioner's additional allegations. B. petitioner's claim alleging discrimination in the plea bargain-ing process on the basis of race was rejected by the Montana Supreme Court in Coleman - 579 P.2d at 744-5. I, E. Petitioner's claim regarding the recovery of the rope was addressed by the Montana Supreme Court in Coleman I 579 P.2d at 744. K. Petitioner's claim regarding the testimony of an F.B. I. agent and of sheriff akin was addressed in Coleman I, - 579 P.2d at 749. Q. Instruction No. 26 was considered by the Montana Supreme Court in Coleman - 579 P .2d at 750, and again in I, Coleman - 605 P.2d at 1054-6, - denied, 100 S.Ct. 11, cert. 2952. U. ~etitioner's claim that the verdict form as to Count 11, aggravated kidnapping, was erroneously given was considered in Co'leman - 579 P.2d at 751. Moreover, the jury I, also convicted petitioner of deliberate homicide. X. Petitioner's general claim regarding the review afforded his case in Coleman - is vague and meritless on the I basis of the opinion issued in that case. No specific error 37'5 is alleged as part of this claim. CC. petitionerfs claim regarding the district court's consideration of mitigating factors in general was reviewed in Coleman - 605 P.2d at 1019-20. 11, EE. Petitioner's claim that he was prejudiced by properly admitted evidence does not state a claim for relief. Coleman - 605 P . 2 d at 1020. Eoreover, the pro11, visions of the 1977 amendments to Montana's capital sentencing scheme were found to apply to petitioner in their entirety in Coleman -. section 46-18-302, MCA, requires 11 that evidence admitted at trial be considered for sentencing purposes. FF. Petitioner's claim that the constitution requires a finding of a specific intent to kill before a capital sentence may be imposed is unsupportable. Moreoever, this court found such an intent when considering the appropriateness of the death penalty at Finding of Fact No. 3 (b). 0. 0 Montana's capital sentencing scheme provides for the consideration of mitigating circumstances, a provision which benefits capital defendants. The issue presented involves only sentencing, not guilt or innocence, and petitioner's due process claims are without merit. See - Coleman 11, - 605 P.2d at 1057, cert. denied, 100 S.Ct. 2952, and - State v. kiatson, Ariz., 586 P.2d 1253, 1258 (1978), cert. denied 440 U.S. 924. QQ. The review provided petitioner by the Montana Supreme Court was carefully outlined and applied in Coleman *'T7'6 6 The RR. tioner's Montana imposition oi the death penalty i n peti- c a s e has been p r e s e n t e d t o and approved by t h e That d e t e r m i n a t i o n i s b i n d i n g on Supreme Court. R noted i n S p i n k e l l i n k v . s Wainwright, 578 F.2d t h i s court. c e r t . denied, arbitrariness and c a p r i c i o u s n e s s the U.S. condemned i n Furman are c o n c l u s i v e l y removed from a d e a t h p e n a l t y proceeding i f t h e s t a t e adheres t o i t s p r o p e r l y drawn d e a t h p e n a l t y s t a t u t e . YZ . aggravating Th.e enumerated in Montana s and capital mitigating circumstances sentencing scheme are s i m i l a r t o t h o s e approved by t h e United S t a t e s Supreme Court and p a s s c o n s t i t u t i o n a l muster under Gregg v. Georqia, 428 U.S. 153 ( 1 9 7 6 ) ; - P r o f f i t t v . F l o r i d a , 428 U . S . J u r e k v . Texas, 428 U . S . S.Ct. IV. 2954 ( 1 9 7 8 ) . 242 (1976); 2 6 2 (1976) and L o c k e t t v. Ohio, 98 - See Coleman - 605 P.2d a t 1057. 11, THE MOTION TO DISMISS IS FURTHER GRANTED AS TO 7 O F THE PETITIONER'S CLAIMS BECAUSE THE N E W AUTdORITY CITED I S EITHER INAPPLICABLE TO PETITIONER'S CASE OR CLEARLY DISTINGUISHABLE FRON I T LEAVING THE CLAIMS BARRED BY RES JUDICATA. The f o l l o w i n g c l a i m s i n c l u d e new a l l e g a t i o n s o f f a c t o r 21 23 '* 26 I/ / 1 1 /I c i t a t i o n . t o new a u t h o r i t y : The c l a i m s d o n o t , howevef, i n c l u d e new a l l e g a t i o n s o r new c i t a t i o n s o f a u t h o r i t y , which a f f e c t t h e v a l i d i t y o f t h e prior determinations 29 /I I 30 /'/ 31 32 of the Montana Supreme Court w i t h respect t o ' those issues. A. 28 - A s p a r t of t h i s claim p e t i t i o n e r a s s e r t s t h a t no r a t i o n a l t r i e r o f f a c t c o u l d have found beyond a r e a s o n a b l e doubt t h a t p e t i t i o n e r had t h e purpose, i n r e s t r a i n i n g Peggy Lee H a r s t a d , t o i n f l i c t bodily injury. 1 ~ i r q i n i a , U.S., I e s t a b l i s h i n g a s t a n d a r d o f review. 99 S.Ct. 2781 (1979) c i t i n g Jackson v . for purposes of T h a t s t a n d a r d o f review . # h a s been exceeded i n t h i s c a s e a s evidenced by t h e j u r y I verdict and t h i s court's ind ding No. 1, which reads in 377' pertinent part: I n t h i s a r e a Coleman i n i t i a t e d t h e a s s a u l t upon t h e v i c t i m by swinging h i s motorcycle helmet by t h e c h i n s t r a p and c r a s h i n g it a g a i n s t the. v i c t i m ' s head. Then t h e defendant p l a c e d t h e yellow nylon rope around t h e v i c t i m ' s neck and attempted t o s t r a n g l e h e r . Then b o t h t h e defend a n t and Robert Nank c a r r i e d t h e v i c t i m down t o a s l o u g h and, t h e defendant h e l d h e r under t h e water. The v i c t i m r o s e o u t of t h e water b r i e f l y and t h e n b o t h men went i n t o t h e water and h e l d h e r under u n t i l s h e e x p i r e d . P e t i t i o n e r ' s claim r e g a r d i n g t h e c o u r t ' s amendment C. I o f t h e i n f o r m a t i o n was c o n s i d e r e d i n Coleman -, 579 P.2d a t 745-6. The recently decided case of S t a t e v. Cardwell, 609 P.2d -1230 ( 1 9 8 0 ) , i s i n a p p o s i t e because (1) t h e Mont., amendment i n p e t i t i o n e r ' s c a s e was found t o be one form and n o t s u b s t a n c e ; ( 2 ) o n l y s u b s t a n t i v e amendments w i t h o u t l e a v e of - court a a f f e c t e d by Cardwell; and ( 3 ) t h e Cardwell ruling is not retroactive. p e t i t i o n e r ' s claim r e g a r d i n g h i s a r r e s t was r u l e d D. on by t h e Montana Supreme Court i n Coleman -, 579 P.2d a t I 743. The r e c e n t l y decided c a s e o f Payton v . -- U . S . , New York, 100 S . C t . been 1371 ( 1 9 8 0 ) , i s i n a p p o s i t e because Payton has n o t given r e t r o a c t i v e effect. This i s because t h e new c o n s t i t u t i o n a l d o c t r i n e it e s t a b l i s h e s i s n o t one aimed a t overcoming an a s p e c t o f . t h e c r i m i n a l t r i a l t h a t substantially i t s truthfinding function thereby r a i s i n g impairs questions trials. Moreover, as to V v. - t h e -accuracy of guilty verdicts city - - o f New York, 407 U.S. t h e purpose of i n past 203, 204 ( 1 9 7 2 ) . t h e exclusionary r u l e t o d e t e r p o l i c e misconduct i s n o t s e r v e d a t t h e p o s t - a p p e a l s t a g e and a p p l i c a t i o n of finding process. t h e exclusionary r u l e d e f l e c t s t h e t r u t h Stone v. Powell, 428 U . S . 465, 492 (1976). P e t i t i o n e r ' s claim of i n s u f f i c i e n t corroboration of l-(%ki53m~ ,k Nankls testimony was c o n s i d e r e d i n X_olea_n_I , 579 P.2d a t 0. 748. Petitioner's citation of Jackson v. Virqinia, U.S., 99 S.Ct. 2781 (1979), and Pilon v. ,. 7 / A - Bordenkinder, U.S., 100 * ISS (1980), do not establish a standard of review for S.Ct. :{'lrS corroborative evidence and are therefore inapposite. RB. Petitioner's claim with respect to the district court's consideration of his prior criminal history as a mitigating circumstance was considered in Coleman - 605 11, P.2d at 1019-20. Jackson, supra, and Pilon, do not affect this claim. TT. Petitioner s Eighth Amendment claim that hanging is a cruel and tortuous method of execution was rejected in Coleman - 605 P.2d at 1058-9. ~stablishing a method of - 11, execution is properly a function of the legislature. Wil-kerson v. Utah, 99 U.S. 130, 134-5 (1879). Gregg v. Georgia, 428 U.S. at 168-173. W. Petitioner's claim that his death sentence for the crime of aggravated kidnapping is disproportionate to the offense for which it was imposed is without merit. 11, - 605 P.2d at 1057. Coleman The death penalty imposed in this case was not the result of kidnapping only, but rather for the offense of aggravated kidnapping resulting in the death of the victim. V. section 46-18-303(7), MCA. THE MOTION TO DISMISS IS F'URTHER GRANTED AS TO 5 OF PETITIONER'S CLAIMS 'BECAUSE HE FAILED TO RAISE THEM IN HIS DIRECT APPEAL AND BECAUSE THEY ARE WITHOUT MERIT. The final five claims that have been raised in peti- tioner's petition have been raised for the first time in this proceeding. They are: SS, UU, WW, W , zz. Petitioner has waived his right to present these issues at this time by failing to raise them in the direct appeal of his conviction. People v. Jenkins, 11 Ill. App. 3d 690, 297 N.E.2d 279 (1973); Andrews v. Morris, Utah, 607 P-2d 816 (1980),cert. - denied 1 0 1 S . C t . 254 ( 1 9 8 0 ) . Beyond t h a t t h e : 'by9 c l a i m s a r e w i t h o u t m e r i t a s a m a t t e r of law The SS. contention raised here t h a t t h e death is p e n a l t y i s imposed s o r a r e l y t h a t . it s e r v e s fro l e g i t i m a t e state interests. This claim has been See - Gregg times and i s w i t h o u t m e r i t . r e j e c t e d numerous v . Georgia, 428 U . S . 153, 173 ( 1 9 7 6 ) ; S t a t e v . McKenzie, 1 7 1 Mont. 278, 557 P . 2 d 1023, 1033 ( 1 9 7 6 ) ; Andrews v. Morris, Utah, 607 P.2d a t 824 ( 1 9 8 0 ) ; and S t a t e v. F i t z p a t r i c k , F u r t h e r Order and Findings and ~ o n c l u s i o n ,p . 18-19 ( J a n u a r y 7 , 1 9 8 1 ) . p e t i t i o n e r contends t h a t he was denied t h e r i g h t UU. But when t h e i n s t r u c t i o n s a r e t o a ufianimous j u r y v e r d i c t . 11, r e a d a s a whole, a s t h e y must be under Coleman - 605 P.2d a t 1052, t h e c l a i m f a i l s . 141, 147 (1973). See Cupp V. Nauqhton, 414 U . S . I n a d d i t i o n , p e t i t i o n e r ' s r e l i a n c e on t h e f e d e r a l c o n s t i t u t i o n i s misplaced i n t h a t t h e f e d e r a l constitution does not guarantee the right v e r d i c t i n s t a t e felony jury t r i a l s . U.S. to a Apodaca v. Oregon, 406 404 (1972); Johnson v. L o u i s i a n a , 406 U . S . W. petitioner's unanimous 356 ( 1 9 7 2 ) . claim t h a t t h e I t e n t i r e r e c o r d t 1 was n o t c e r t i f i e d t o t h e Supreme Court because some u n s p e c i f i e d p r o c e e d i n g were n o t t r a n s c r i b e d i s w i t h o u t m e r i t . 46-18-309, MCA, recognizes the distinction section between the l t r e c o r d w c e r t i f i e d by t h e - s e n t e n c i n g c o u r t and t h e " t r a n s c r i p t w p r e p a r e d by t h e c o u r t r e p o r t e r . I t i s t h e duty of t h e a p p e l l a n t t o s e l e c t p o r t i o n s o f t h e l f t r a n s c r i p t t l t o be submitted i n a l l criminal appeals. YY. teenth Petitioner Amendment contends rights have S e c t i o n 46-20-302. MCA. t h a t h i s E i g h t h and Fourbeen violated because of a l l e g e d d i s c r i m i n a t o r y a p p l i c a t i o n of t h e d e a t h p e n a l t y i n Montana and i n t h e United S t a t e s . in support of this contention The a l l e g a t i o n s he makes are similar to those s u p p o r t i n g s i m i l a r c o n t e n t i o n s r a i s e d i n t h e United S t a t e s - . .- . . . .- I i ( f " k. Supreme Court i n Furman v. G e o r q i a , 408 U. 1 1 Greqq v. Georqia, 428 U. 3 F l o r i d a , 428 U . S. 238 ( 1 9 7 2 ) , S. 153 ( 1 9 7 6 ) , and P r o f f i t t v. S. 242 ( 1 9 7 6 ) , where t h e c o u r t r e f u s e d t o 4 a c c e p t t h e argument. The c o n t e n t i o n of d i s c r i m i n a t o r y 5 a p p l i c a t i o n of t h e d e a t h p e n a l t y f a i l s a s a m a t t e r of law on 6 S. 229 ( 1 9 7 6 ) , and t h e b a s i s of Washinqton v. D a v i s , 426 U . 7 8 V i l l a q e - A r l i n q t o n H e i q h t s v. M e t r o p o l i t a n Housinq Developof 9 ment Corp., 429 U. 10 Wainwriqht, 578 F.2d 1J ZZ. S. 252 ( 1 9 7 7 ) . = ~ p k i n k e l l i n kv. 582 (1978) . P e t i t i o n e r h a s f a i l e d i n h i s f i n a l a l l e g a t i o n of 12 e r r o r t o " c l e a r l y s e t f o r t h (any) a l l e g e d v i o l a t i o n o r 13 v i o l a t i o n s " a s r e q u i r e d ' b y S e c t i o n 46-21-104, MCA, and h i s 14 c l a i m t h e r e f o r e f a i l s a s a m a t t e r of law. 15 Dated t h i s 16 4/ day of February, 1981. /',& @ $< $, w . 23 24 25 '26 27 28 29 31 I 32 S:ar Hiding Cc. m a s City, Mm:. II -14- A ! ?/ \ D I S T R I C T JUDGE ~ ,..
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