*1 COLEMAN, DEWEY EUGENE Appellant, Petitioner MONTANA, STATE OF Respondent Respondent. No. 81-115. April Submitted 1981. Aug. 28, Decided 1981.
Rehearing
Sept.
Denied
1981.
Mike John Helena, Atty., Atty. Gen., Forsythe argued, County John S. Asst. Forsyth, respondent. respondent for the court. Opinion HARRISON delivered the
JUSTICE County Court dismissal appeals from a Rosebud District Chapter relief. Title Montana petition post-conviction ofhis Code Annotated. appeal on this are base presented petitioner of the issues
None
Therefore,
criminal cause.
the facts
underlying
in the
facts of the
Lee Harstad
Peggy
for the death of
surrounding Coleman’s conviction
in our decision
Afull text of these facts can be found
will not be recited.
*4
(1978),
1,
177 Mont.
appeal,
of an earlier
State v. Coleman
facts
be discussed with ref-
Operative procedural
1. Is relief a new civil action or a continuation of previous criminal cause? judge 2. Should the testimony have recused himself when his required as to certain claimed violations? petitioner
3. In not post-conviction entitled to relief because he has been sentenced to death?
4. Are claims of by constitutional violations barred judicata res they because appeals? were decided earlier Coleman 5. Were thirteen of Coleman’s constitutional properly claims “they dismissed because include vague allegations, they new are too vague claims, to state unsupported by authority new or are judicata? therefore res barred
6. Were seven of Coleman’s constitutional claims properly authority dismissed because the inapplicable “new cited is either petitioner’s clearly distinguishable case or leaving from it the claims judicata”? barred res
7. Were five of Coleman’s constitutional claims waived “because he failed to raise them in appeal they his direct and because are without merit”?
I. POST-CONVICTION RELIEF AS CIVIL OR
CRIMINALACTION recognizes This court the unique post-conviction nature of the remedy. Montana proceeding law does not label the as either civil or criminal, although chapter providing post-conviction relief is in procedure Chapter 21, criminal title. Title Montana Code Annotated. MCA, provisions seq.,
The Montana
of 46-21-101 et
are derived
§
essentially
from the Uniform
Act
Post-Conviction Procedure
and are
(28
2255).
similar to the federal statute
U.S.C.
The federal courts
§
consistently
have
held that an action under 28 U.S.C. 2255 is a civil
§
action, independent
original
of the
criminal conviction. See
Heflin
(1959),
United States
358 U.S.
79 S.Ct.
433 537, 514 (1973), 458; Noble v. State 109 Ariz. P.2d State v.Richardson (1965), 471, 799; (1968), 194 Kan. 399 P.2d Smith v. State 79 N.M. (8th 450, 961; 1965), Sigler 673, 444 P.2d Noble v. Cir. 351 F.2d cert. (held denied, 853, 98, 17 81, post-con 385 U.S. 87 S.Ct. L.Ed.2d nature); applications (1975), viction are civil in People v. Jones 30 706, 411; Ill.App.3d (Mo.1959), 332 N.E.2d State v. Smith 324 707; 1967), (Fla.App. S.W.2d Tolar v. State 196 S.2d 1.
Clearly, this
appeal
is not intended to be another form of
from
case,
separate
criminal
but a
vacating, setting
civil action aimed at
aside or correcting a sentence. There is no Montana
interpreting
case
post-proceeding
the nature of the
petition,
proceeding
but the
could
closely analogized
to that seeking
corpus
a writ of habeas
which
this court decided in 1927
an independent
proceeding.
civil
(1927),
August
198, 213,
737,
v. Burns
79 Mont.
255 P.
741.
important
It is
to note that we do not here intend to erode the
fundamental principle discussed below
sentencing
that the
court is
proper
court for the post-conviction petition.
areWe mindful that
party
to a civil action is entitled to two substitutions of presiding
judges.
4,
Section
by
3-1-801 subd. MCA (adopted
order of this court
26).
29,1976,
However,
December
34 St.Rep.
because an applicant
post-conviction
for
relief
specific
is directed
the more
provisions of
post-conviction
bring
statute to
petition
in this court
inor
him,
court that sentenced
we find that the
judge disqualification
two
grant
3-1-801,
4, MCA,
subd.
post-conviction
§
unavailable to the
petitioner. Montana,
general
when a
statute is in conflict with a
act,
specific
specific
statute
take precedence.
1-2-102,
will
Section
MCA;
(1957),
In Re
339,
Coleman's Estate
132 Mont.
We hold that the Montana post-conviction relief procedure is
civil in nature
independent
underlying
criminal cause. We
proceed
will
to consider the
appeal
issues raised on the
to this court.
Coleman contends that it
deny
was error to
various requests without
evidentiary
hearing.
deny
It is not error
application
an
for
post-conviction relief
evidentiary hearing
without an
if
allega
tions are without merit or would
petitioner
otherwise not entitle the
(1968)
to relief.
supra.
643,
Clark v. State
Tramel v. State
92 Idaho
(Alaska
649; Donnelly
1973),
448 P.2d
v. State
516
(allega
P.2d 396
post-conviction
tions in
petition
vague
were too
illusory
to war
(Alaska
rant evidentiary hearing); Widermyre
1969),
v. State
885;
452
People Lyons (1978),
384,
916;
P.2d
196 Colo.
(1976),
Cook v. State
220 Kan.
434 for deny application post-conviction
The decision to admit or
an
discretionary
relief is a
one and one that will not be disturbed
46-21-201, MCA;
court absent a clear abuse of discretion. Section
107;
(1974),
P.2d
Brudos v.
Ariz.App.
State v. Ybarra
527
(1977),
680;
Or.App.
P.2d
Sullivan v. State
Cupp
222 Kan.
II. judge the district should have Coleman next maintains judge petition post-convic- over his presiding recused himself as sentencing judge. light tion relief in of the fact that he was *6 the post-conviction proceeding, Petitioner that in a sentenc- observes to, alia, testify propriety inter the ing judge likely would be called to Judges, 46 Am.Jur.2d 91 at Citing of the death sentence. § a should excuse himself as a matter of judge Coleman submits that disagree. may if that he called as a witness. We appears course it be compelling purpose policy the recognize Coleman fails to MCA) (§ 46-21-103, of the statute portion considerations behind that post-conviction relief be filed either petition which directs that a for 46-21-101, (“may also MCA the of conviction or this court. See § court ...”). petition imposed the sentence the court which sentencing judge preside at the sub- Historically, having the following for the proceeding earnestly has been advocated sequent (1) place the District Court at the reasons: it reduces the burden on (2) of confinement; proceeding the cost of the since most of it reduces the probably called are in the locale where likely the witnesses to be (3) familiar with the occurred; and, convicting the court is more trial surrounding the case. circumstances totality of the facts and Comment, 11 Procedure 3§ U.L.A. Post-Conviction Commissioner’s (1974). was enunciated important consideration Still another (1974), 95 Donaldson in Still v. State Supreme Idaho Court Justice Idaho 437: proceeding the is matter whether
“Although it doesn’t relief, it post-conviction corpus habeas or for denominated as one for of the Uniform Post-Conviction necessary procedures that the is still the district designed give to followed. The Act was Procedure Act be any to correct a chance court which made the initial determinations addition, In in that court. irregularities that occurred mistakes or a to make such required facts has it all the court before relief must Therefore, petition or for application the determination. I.C. conviction occurred. court the filed in the district where be added.) (Emphasis 19-4902.” § court post-conviction the also of the view that
This court is judge petitioner if the shows the only recuse himself judge should A trial otherwise unobtainable. the of material evidence source him a automatically make familiarity a case does not judge’s with Luby proceedings. Bresnahan v. post-conviction material witness 171, 22 The Bresnahan 455, 418 P.2d A.L.R.3d 1193. Colo. familiarity judge’s the trial the of emphasized importance court also collaterally civil being criminal attacked the which is case with testimony, pages of of thousands action. The case at bar involved delay briefs, records. We are mindful and trial court motions justice which would and burden on efficient administration himself herself if were familiarize judge required occur another evidentiary purpose post-conviction record with this showing of hearing. delay only justified by strongest Such can sought evidence to be adduced from materiality unavailability sentencing judge. entirely it clear to this case, petitioner never makes testimony judge. he from the district just hoped elicit court what judge processes sentencing excursion into mental Abstract fully judge acquainted of a who is justify pro do not recusal forma attempting at to embark appears petitioner case. It best testimony damaging about fishing trip, hoping on a uncover discovery procedure would not be fairness of the sentence. Such at especially suspect when directed allowed with witness but is People (1971), 174 judge. the trial Moore v. Colo. See *7 P.2d 114. 485 find, therefore, specific compelling that unless some
We
sentencing
sought
testimony
from the
of
evidence is
to be adduced
else, many
for
sub
judge
can
found nowhere
and such evidence
be
preside
petition
over a
for
judge
reasons the trial
should also
stantial
to
line of
The Act itself lends credence
this
post-conviction relief.
legislature,
easily
it can be
inferred
reasoning, and
filed
the court
post-conviction petition
should be
providing that
conviction,
sentencing judge preside over
intended that the
of
regarding the
proof
standard of
proceeding. The
post-conviction
only
strongest
testimony
high;
necessity
sentencing judge’s
of a
In
See
unavailability warrants recusal.
showing materiality and
of
(2nd
1976),
III. APPLICABILITY OF POST-CONVICTION PROCEDURE
TO CAPITAL CONVICTIONS regard issue, to the 46-21-101, third MCA, § recites in applicable part: “Circumstances in validity which may sentence challenged. be A
person adjudged guilty of an offense in a court of record who has no adequate remedy appeal... may petition the court imposed which sentence, supreme court, any justice or of the supreme court vacate, aside, set or correct the sentence.”
This court specifically has not addressed question of whether capitally-sentenced defendants are entitled protections to the of the post-conviction statute, relief or whether the automatic sentence statute, 46-18-307, review MCA, et seq., § in place stands post-con viction relief. We are aware of the language of Sheehy Mr. Justice (1979), State v. Coleman 299,] [185 1000, Mont. 1006, 605 P.2d 36 St.Rep. 1134, 1135, denied, cert. 970, U.S. 100 S.Ct.
L.Ed.2d wherein he writes: “Because the review conducted by the court [pursuant automatic provisions review of 46-18-307 through § 46-18- § MCA] statutorily place stands in recourse to the Sentence Division, Review completion of this review will mark the end of upon cause, state action this excepting the upon petition action added.) rehearing.” (Emphasis cf., But State v. 280, 322, McKenzie Mont.
1229.
That language, noted, only specifically pertains to the sentence procedure review only generally could it interpreted repre- sent a bar to post-conviction the utilization of procedure. The post- conviction statute does not limit its provisions to noncapitally-sen- tenced persons, nor does the automatic review statute herald itself as an remedy. exclusive Such an interpretation would have to be inferred from the nature of the statutes and policies involved. We do not believe that such interpretation an given can be to these statutes.
In arriving conclusion, at plain meaning post-conviction particularly statute is persuasive. The statute provided that person adjudged guilty “a of an offense” is entitled to access to the post-conviction procedure. legislature If the intended this statute applied only sentences, to be in noncapital we must conclude that it expressly would have done person” so. The terms of“a “any person” and “a “any crime” or crime” generic are terms
437 Any acts and actors. limita- encompassing very spectrum broad procedures must be made grant post-conviction ofreview tion ofthe interpret clearly power It not the of this court to by legislature. is American contrary legislative intent. See the law in a manner (1980), 542,] 131, Mont. 617 P.2d 37 Supply [189 Linen Co. v. DOR 76, (1968), 438 1707, v. Anaconda Co. 151 Mont. St.Rep. Dunphy P.2d 660. regarding the
Although argues persuasively the State sentences, regarding finality intent we do not believe legislature’s meaning” inap of the statute demonstrates its “plain Though aware of these plicability capitally-sentenced offenders. interests, competing legislative power this court does not have the go beyond unequivocal provisions the clear and of the law.
IV. APPLICABILITY OF RES JUDICATA TO PETITION FOR RELIEF
POST-CONVICTION any Montana law is bereft of decision on whether the doctrine of judicata applicable prayer post-conviction res to a relief. As a general proposition, we have held: judicata
“The judgment doctrine of res states that a final on the competent jurisdiction merits a court of is conclusive as to the thereby litigated, parties causes of action or issues as to the and their privies, judicial in all in the other actions same or other tribunal (1976), jurisdiction.” Meagher of concurrent Co. Water Dist. v. Walter 361, 850, 358, 169 Mont. 547 P.2d 852.
The doctrine reconsideration of an issue if four elements bars (2) “(1) same; present: parties privies are or their must be the (3) same; subject-matter of the action must be the the issues must be (4) same, subject-matter; and and must relate to the same in reference to the capacities persons of the must be the same subject-matter and to the issues between them.” Brannon Lewis (1963), 200, 207-208, 706, 711. County 143 Mont. 387 P.2d Clark consistently judicata, Aside from the bar of res this court has of issues relitigation proceeding refused to allow a collateral (1976), 512, Quigg 168 Mont. appeal. determined direct In Re 449,] (1980), [188 v. Crist Mont. Spurlock 544 P.2d by reaffirming the 498, 501, in some cases St.Rep. 614 P.2d 37 104, 105, (1973), Mont. holdings. Digiallonardo v. Betzer prior accord, 85 S.C. Orricer v. State N.W.2d 461.
In light dearth, absence, if complete of guiding Montana case regard, law this a review of the law as it has evolved and *9 developed regard applicability with to the judicata res Act, 2255, Federal 22 U.S.C. will aid. §
Historically
principle
judicata
of res
was not seen to apply to
writs of
corpus
petitions
See, Sokol,
habeas
for relief under 2255.
§
21.5; cf.,
Federal
Corpus
Kelley, Finality
Habeas
and Habeas Cor-
§
(1975).
pus, 78
1
However,
W.Va.Law Rev.
a new rule has been
recognized regulating successive federal
grounds
motions on
pre-
viously heard
and determined. In Sanders v. United States
1,
1068,
148,
373 U.S.
83 S.Ct.
10 L.Ed.2d
the court stated:
“Controlling weight may
given
be
prior application
denial of a
(1)
for
corpus
only
federal habeas
or 2255 relief
if
ground
the same
§
presented in the subsequent application
adversely
was determined
(2)
to the applicant
prior application,
on the
the prior determination
(3)
merits,
was on the
justice
the ends of
would not be served
reaching the merits of the subsequent application.”
15,
Where a trial or appellate court has determined the federal claim, prisoner’s may proper discretion in a case be against exercised grant of a hearing. appellate 2255 Where the trial or § court has prisoner’s claim, considered and decided a federal may open it that, 2255 motions, court to determine on the basis § files and records, prisoner is entitled to no relief. See Thornton v. United (D.C. 1966), (dissenting States Cir. 368 F.2d opinion J.). Wright, judicata
The res rule has come to a point now its evolution where it can certainty “ground be said with that a previously relief appeal prisoner’s considered on from a federal conviction cannot be attacking reconsidered on a motion sentence under 28 U.S.C.S. (1976) Torcia, Procedure, 2255.” Wharton’s Criminal 649 at 401 § § and cases cited therein. judicata applied
Res cannot be in such a deprive manner as to right post-conviction However, Coleman of the to file a procedure. res judicata rehearing already litigated can be used to bar the of issues under interpretation preserves the rule Sanders. This the Montana post-conviction remedy by judicial requiring inquiry into the detention, propriety preventing ofthe sentence and ofthe while abuse procedure by relitigation claim previously of a considered and Sanders, relitigation found insufficient. As discussed would mean effort, judicial risking cluttering a waste of of the court’s limited already resources with collateral attacks decided on the merits. As it, “judicial put economy one court dictates restrictive limitations of (7th 1971), Twomey reruns.” United States ex rel. Townsend v. Cir. 350, 357, denied, 452 F.2d cert. 409 U.S. 93 S.Ct. beyond
L.Ed.2d gone statutorily 98. Some states have Sanders and prohibit single more than one collateral attack on a conviction. See (1964); 27.26(d); Mo.Sup.Ct.R. Ill.Ann.Stat.C. 122-3 § (1963). Wyo.Stat.Ann. Tit. 7-408.3 §
We, therefore, adopt previously quoted criteria as Sanders opinion. in this affirm the holding We of the District Court that the following twenty-seven issues have been considered previously and alleged decided this court and Coleman has no new facts or law respect to these issues which additional require considerations: F, H, I, G, J, L, M, N, P, R, S, T, V, W,Y, Z, AA, DD, GG, HH, II, JJ, KK, LL, MM, NN, and PP.
V. VAGUENESS AS BAR TO EVIDENTIARY HEARING *10 The lower court denied they thirteen of Coleman’s claims because vague were too unsupported by authority state new claims or were were, therefore, by judicata. barred argued res The State in the “vague District Court that allegations” present do not and proper basis for agree. review. We
Vague rehashings
previously adjudicated
of issues
by a
competent jurisdiction
court of
unworthy
will not make
magi
claims
cally meritorious.
allegations
injustice
Naked
cannot constitute
grounds
provide any
new
or
basis for relief. Cf. Hooker v. People
(1970),
226,
173 Colo.
Again,
We affirm the of the District Court that the judicata thirteen issues or claims are dismissed as res because the vague allegations validity prior new do not affect the deter B, E, K, Q, U, X, CC, EE, FF, OO, QQ, RR, minations of this court: and XX.
VI. APPLICABILITY OF DEVELOPED AUTHORITY NEWLY
We next consider Coleman’s contention that seven of his
properly
grounds
claims were not
dismissed on the
that
new
authority
inapplicable
clearly distinguishable,
cited
either
or
leaving
by
judicata.
recognized
Cases have
claims barred
res
although particular
issues have been addressed and determined
adversely
appeal, post-conviction
may
to a
on a direct
court
prisoner
where there
nevertheless consider such matters
has been substan
(D.N.Y.
change
tial
in the
United States v. Sorenson
applicable law.
(1st
1970),
1268;
1975),
F.Supp.
Robson v. United States
Cir.
claims,
evidentiary
note that no
We have reviewed Coleman’s seven affirm the distinguishable. cases cited Coleman are We therefore holding following District that the seven claims are barred Court’s authority clearly judicata inapplicable res as the new cited is A, C, D, O, BB, TT, distinguishable: and W.
VII. DISMISSAL ON GROUNDS OF WAIVERAND
LACK OF MERIT The District Court held that five of Coleman’s claims were appeal. failed to raise them on his direct dismissed because he merit. that the five claims were without District Court further found remedy, the post-conviction procedure Because the is a new civil them proceedings failure to claims in earlier would bar present However, the claims from at this time. we have reviewed presentation *11 court unmeritorious. It was not error for the and find the same to be (Alaska Sanders, summarily. supra; Widermyre v. State deny them 186, (1977), 114 Ariz. 1969), 885; State v. Richmond 452 P.2d denied, 2988, 41, 915, S.Ct. 53 cert. 433 U.S. 560 P.2d 1312; (1976), 497, 1101; 190 Colo. People Trujillo L.Ed.2d Morris, supra. Andrews v. following by the District Court of
We affirm the dismissal UU, WW, YY, SS, they are without merit: claims the basis that on and TIL. hearings held, petitioner attorney
Two were with and his 14, 1978, present, following July on the dates: June and 16 and hearing, 1978. At the petitioner June counsel for noted to the court that in presentence report view of the fact a had not prepared, been presenting he was not an report. presentence additional The report petitioner contained the information that had never been convicted any prior felony prior present charge. petitioner to the Counsel for noted:
“May defendant, the record show that on behalf of the we are not going gentleman to call [probation this officer Lofland] Thomas stand at this time for examination. That does not agree mean we the report, simply going that we are not to call him as a witness. Very
“THE COURT: well. Now the announcement that the defense does produce any any not intend to ... call witnesses to establish mitigating circumstances, the court has before it all during matters trial, the course of testimony heard the relating to the aggravating circumstances and mitigating also some circumstances ...”
Thereafter, requested court each side to submit proposed findings fact, conclusions of petitioner law and briefs. Both the the State having submitted their findings conclusions, briefs and the court hearing July 10, held a second 1978.
At the beginning July of the 10 hearing, judge the trial submitted petitioner’s counsel and State counsel findings his and conclusions and thereafter counsel petitioner for read prepared into the record a mitigation. us, statement With this record before we cannot fault the trial court in the sentencing petitioner. Petitioner, at the first hearing, did testify mitigation, declined to examine the officer prepared presentence who report, given opportunity an to submit both further briefs on the sentencing and proposed his findings and allege conclusions. To now he was denied due process opportunity and an present argument his is without merit.
Here the trial court forty-nine was faced with some separate claims for relief. While Carter v. Illinois 329 U.S. 67 S.Ct. 91 L.Ed. holds that systems states are free to devise their own cases, system, review of criminal case, as illustrated in now petitioner allows two appeals, contemplated by result not legislature. July 10 hearing judge, indicates that the trial sentence, pronouncing stated:
“In pronouncing sentence I do parties want the to know that this extremely agonizing the court to make. have not looked at the points lightly, many that have been raised arguments but *12 defense, heretofore, and raised the of course have been considered the standpoint found from the factual that defendant the has doubt, disagree I do that guilty, beyond a and not with was reasonable jury. mitigating is that the defen- conclusion of the One circumstance felony, has to time been convicted of but prior dant not committed, enormity feeling crime the of the and court’s view aggravated the cir- that this one circumstance does not overcome effect, cumstances, findings required I have made to written judgment by law. I have made conclusions and which have been Also time, only and the state at this and I will furnished to defendant judgment.” and at this time read the court’s conclusions affirmed. The District Court is judgment The sentence and are a directed to schedule new date for execution.
CHIEF HASWELL and JUSTICE WEBER and W. W. JUSTICE LESSLEY, SHEEHY, Judge, sitting for JUSTICE concur. District MORRISON, dissenting:
JUSTICE respectfully dissent. that the conviction problem The first with this case is defendant’s sufficiently testimony which was upon accomplice was based The court have by independent evidence. trial should corroborated quote trial. I a in defendant’s behalf at time of will directed verdict failed. extensively transcript that the state’s case from show imposition deal with the part The of the dissent will second aggravating That concerns circumstances penalty. death discussion the conditions under which circumstances and mitigating versus penalty may imposed. death defendant, Coleman, met at Dewey Eugene and Robert Nank being Sheridan, Wyoming. Coleman was Hospital Veteran’s history had of mental illness. depression.
treated for Nank Hospital discharged from the Veteran’s Coleman and Nank were motorcycle. They gas” “ran out of came Montana on Nank’s Montana, eve- Montana, Forsyth, during Roundup, between unsuccessfully they ning July hours 1974. Coleman testified securing some purpose for the tried to hitchhike to the nearest town that, since Coleman began get dark and Coleman stated gasoline. It a ride and Nank black, ability their to obtain impairing he was Coleman, Thereafter, Nank according to him to hide himself. directed a ride. Coleman testified stop a vehicle and obtain was able to Forsyth. direction of and headed left driver Nank later and car sometime driving the returned Coleman said that Nank Coleman to instructed emotionally upset. Nank that he was wet him. Coleman motorcycle and come with from the things their remove Harstad to be the drove, later determined They what was obeyed. stopped Nank direction of Rosebud. vehicle, Forsyth in the past something ap- up which pickup and Rosebud and Forsyth between in Rosebud and stopped He also at bar a blanket. peared to be that he had killed a woman. He advised Coleman obtained Cokes. two *13 “ran out Forsyth and the Harstad vehicle headed toward Nank back Coleman, a field and hid Nank went into gas”. According to carry purse, which directed to woman’s something. Coleman was and, money pursuant purse, found no he did. Coleman looked at directions, into a culvert. The two walked purse threw the to Nank’s early morning hours. Nank obtained Forsyth, arriving there in the to motorcycle. Nank gasoline in a can and hitchhiked back they they stated that even- for Coleman and left. Coleman returned Boise, Idaho, they apartment rented and and tually to where went stated that he did not time of their arrest. Coleman lived until the he was afraid of Nank and report Nank to the authorities because being implicated. because he was afraid of point testimony departs from Coleman’s at Nank’s Harstad, a ride. In contrast to victim, Peggy stopped give to Nank woman, young alone testimony Coleman’s that Nank left him. He testified that Nank testified that Coleman went with he, Nank, in the right in the front seat and was Coleman was seated they proceeded stated that as toward middle next to the driver. Nank he Forsyth Peggy stop to the vehicle so that could he asked Harstad got He that he and Coleman out of the vehicle urinate. stated and headed They urinated it. then returned to vehicle beside Forsyth, testified that he Forsyth. they approached towards As Nank to the side of the ignition turned the off and maneuvered vehicle yellow nylon together hands with a Peggy road. Nank tied Harstad’s to clothing except attempted for her blouse. He rope. He removed her not maintain an erection. sexual intercourse with her but could have Peggy “got then in the backseat” with He testified that Coleman Nank, now intercourse with her while Harstad and had sexual car, held onto her foot. standing outside they drove dressed the victim testified that he thereafter Nank that Coleman Eventually Nank stated deciding around what do. that he threw the Harstad. then claimed Peggy decided to kill Nank tied, shoulder, and headed down with her hands still victim over his toward the Yellowstone River. He stated that Dewey Coleman hit her top the head continuously with a motorcycle helmet and that then Coleman attempted strangle yellow her with the nylon rope. He stated that he, when this did not kill Nank, the victim that held her head under water in the Yellowstone River until she drowned.
Nank also related how he Boise, and Coleman Idaho, went to obtained an apartment and continued to live until the time of their arrest. Following arrest, their Nank and the defendant were inter- rogated by law Boise, enforcement officials in Idaho. Coleman main- innocence, tained his but Nank confessed agreed to testify against Coleman.
The testimony of an accomplice is suspicion viewed with because there is a strong for lying. motive In this case a number of law enforcement techniques were used to obtain a confession from Nank. A police Nank, officer admitted telling though true, it was not that he had witnessed a hanging and that gruesome. it was He further told Nank, though true, it was not that Coleman had confessed and blamed Nank for the murder. Nank thereafter exhibited a willingness confess, only but would do so with some assurance that he would hang. He was assured law enforcement they officials that would every make effort to see that he hang would not and Nank thereafter gave a implicating confession Coleman.
Nank charged homicide, with deliberate sexual intercourse *14 consent, without and aggravated kidnapping. Only the latter offense carried the death penalty. Nank permitted to plead guilty and receive noncapital sentences for deliberate homicide and rape. The aggravated kidnapping charge, which carried the death penalty, was held in abeyance until against Nank testified Coleman at the trial. After Coleman’s trial the aggravated kidnapping charge against Nank was dismissed. why
It is obvious an accomplice’stestimony must be viewed with distrust. Before a charge against criminal a defendant can survive a directed verdict and be jury, submitted to a there must be inde- pendent corroborating implicating evidence the in defendant the corroborating crime. That evidence “must raise more than suspicion in, ofthe commit, defendant’s involvement opportunity the crime charged.” (1981), 436,] 292, [192 State v. Warren 295, Mont. 628 P.2d St.Rep. 773, 776, (quoting (1979), from State Hemp [182 Mont. 1218). 383], 96, 99, 36 St.Rep.
The following excerpt
case,
is taken from the first Coleman
State
(Decided
26, 1978),
v. Coleman
April
1, 28,
177 Mont.
opinion cited conviction. The court found testimony to sustain the defendant’s motorcycle hel- A crack in defendant’s corroborating evidence to be: met; rope belonging on the to the two Peggy a hair of Harstad found purse; in her men; fingerprints Peggy Harstad’s car and Negroid and head hair Negroid pubic hairs similar to defendant’s vehicle; in the evidence that the defendant found the victim’s approximately road at the same together Nank were seen on the same The court held that Peggy disappeared. time that Harstad the commission of sufficiently evidence connected the defendant to charged the offenses to allow the conviction to stand. with Nank in the
The evidence that defendant was on road vicinity Peggy disappeared where Harstad does not corroborate anymore testimony of testimony of Nank than it corroborates the evening testified he Nank on the Coleman. Coleman that was with question. fingerprints purse The same is true of Coleman’s in the in the vehicle the vehicle. Coleman testified that he was Harstad told him after Nank returned with the vehicle. He testified that Nank through He that he first went dispose purse. testified purse and examined its contents. The existence of Coleman’s fingerprints purse’s on the contents and the vehicle corroborate testimony of Nank. There- testimony of the defendant as well as fore, explana- the reasonable “equally this evidence is consonant with the defen- part the innocent conduct on the pointing tion toward therefore, guilt, qualify does not pointing dant” as it is toward corroborating evidence. take this case any corroborating sufficient to
If there is evidence *15 motorcycle helmet or in in the cracked to the it must be found found in the hairs were testimony pubic that Coleman’s rehable shows that reading transcript A of the victim’s vehicle. careful sufficient corroboration did not exist. in Dewey motorcycle
There was a crack Coleman’s silver colored prosecution helmet. The contended that this corroborated Nank’s testimony repeatedly Peggy top that Coleman struck Harstad on motorcycle the head helmet. with There was no foundation to motorcycle striking show that such a could or would crack a helmet. testimony There was no to show that the helmet could be cracked in cracking such a fashion without skull of victim. This victim autopsy. had no skull fracture at any
If the crack in significance, the helmet had corroborative it destroyed by pathologist’s testimony. Pfaff, was Dr. John board pathologist, testify by certified forensic called to the State was prove decomposed autopsy that the remains which he examined at Peggy questioned were those of Harstad. He did so. He then about findings his in connection with the tissue which covered the skull. He head, if top testified that trauma occurred to the he would tissue, expect bleeding to see into the but that he saw none. The following excerpts testimony: are taken from his bony any
"... I could find no evidence of fracture of the skeletal I remains that examined. the skull there was no brain tissue remaining. lining The fibrous membrane which covers the brain and separate significant from the skull bones was still intact. This is skull, injury may because in of skull fracture or to the it cases serious bleeding detached and become contain or blood extravasation. Such was not observed this case.
“Question: tissue, you any scalp And within that did find evidence wound, hemorrhage? of an incised a laceration or a I “Answer: did not.
“Question: you lining Did examine that dural to determine and wound, hemorrhage? ascertain whether there was laceration or I did. “Answer:
“Question: you And did find? what none.
“Answer: found hematoma, “Question: Doctor, your is it respect to subdural hematoma without testimony possible that it is to have subdural fracturing of the skull and injury scalp, injury to the without or is that injury hemorrhage lining, possible? without to the subdural usually injury scalp. to the possible, “Answer: It’s but there bone, struck to the may injury There be no but there is blow if *16 (Em- patient living. scalp usually there is evidence that if added.) phasis “Question: you did find right. particular All Now in this case injury evidence to substantiate to the head or to the face? examined, In I I “Answer: the tissue found none.
“Question: Well, examination, you autopsy whatever did that used, you, procedure you whatever was available to whatever you employed, you any injury whatever scientific method that did find to the head or to the face? (Trial Ill, 572, 603, Transcript
“Answer: I did not.” Vol. pp. 633.) only The remaining evidence claimed for corroboration is that pubic Dewey hairs similar to Coleman’s were found in the Harstad vehicle. samples
The record reveals that hair were taken from the defen- subjected dant and microscopic examination. Both head hair and pubic hair belonging to defendant were available for that examina- tion. The victim’s car was vacuumed and numerous hair samples obtained from vacuuming. samples These were also scrutinized microscopically and compared samples to the hair of defendant.
It should be remembered that defendant testified he was in the driving Therefore, victim’s vehicle after Nank returned the vehicle. the existence of defendant’s hair in the car corroborates defendant as well as provide independent corroborating Nank and does not However, evidence sufficient to sustain places great conviction. State upon pubic reliance the fact that defendant’s hair allegedly was found in the victim’s vehicle. The record does not support the State’s position. case, an effort to prosecution corroborate the State’s called
an expert
prove
witness to
that the
hair found
the victim’s vehicle
was connected to the defendant.
quoting excerpts
Before
from the
expert’s testimony,
important
cognizance
it is
to take
of the eviden
tiary rule here applicable.
testimony
upon
The offered
must be based
degree
probability”
“reasonable
of scientific
and is
if
inadmissible
testimony
upon
“possibility’.
is based
a mere
Moen v.Decker Coal
(1980),
79,]
2220;
Co.
St.Rep.
[185 Mont.
36
Azure v.
(1979),
234,]
City Billings
968;
[182
P.2d
St.Rep.
Mont.
(1971),
33, 487
1307;
Farris v. Clark
158 Mont.
P.2d
Stordahl v.Rush
Implement Company
148 Mont.
“Question: you comparison make a Did automobile, and the K-2 as having come from have mentioned as Dewey Coleman? the head of coming from you have mentioned Yes, I did. “Answer: findings?
“Question: your And what were hairs, these between that there some similarities “Answer: found those hairs. between there some differences but also were final conclusion? that, your “Question: a result of what As or not these hairs as to whether I reached no conclusion “Answer: the same source. could have come from hairs, pubic the known you compare pubic “Question: ... Did Q-29 hairs that were removed Dewey Coleman with hairs from Harstad’s vehicle? Peggy from from the debris *17 Yes, I did. “Answer: your findings?
“Question: And what were — in hairs Negroid pubic I that the the two black “Answer: found match the vehicle, microscopically which vacuumings from the the area ofMr. being pubic from the to me as were submitted hairs which Coleman. please? further
“Question: you explain that Will alike microscopically Well, hairs were the fact that the “Answer: the same have come they could me to conclude that allowed from — from the Negroid pubic hairs the two black pubic The two source. pubic the have come vehicle could vacuumings of the victim’s from area or Mr. Coleman. source, you the same it come from
“Question: say don’t does You source, right? could have come say that it possible it’s from 1802,1805, VIII, pp. Vol. (TrialTranscript That’s correct.” “Answer: added.) 1806,1905,1906.) Emphasis testimony too Montana, this was in law
Under well established received, could not evidence, once and received speculative to be to sustain conviction. sufficiently corroborative upon relied be Coleman, the court supra, wherein in State This court’s decision testimony that evidence, upon also relied the corroborative identified rope. nylon yellow in the found embedded the victim’s hair was that the only corroborate would such hair Though the existence of Nank’s victim, not corroborate and would killing the used rope was was evidence itself present, was testimony that Coleman on hair found sought to relate witness expert The same insufficient. was brown that there He testified the victim. with the hair of rope rope. grayed again Caucasian hair embedded in the ends of the He hair rope testified that the found in the could have been the hair of such Peggy testimony Harstad. Under the rule above enunciated Additionally, upon expert could not relied be corroboration. person witness that he could determine the testified not sex from had whom the hair came. Nank also brown Caucasian hair.
Interestingly, this same hair testified that he had examined expert, hair taken from the blanket later determined to blanket which Peggy Harstad had her car she left home. Brown Caucasian when on hair was found the blanket. Nank had testified that he and smoking cigarettes they were on blanket after had killed Peggy that he nothing Harstad. Coleman testified knew about the blanket had physical and had no contact with it. examination Negroid upon revealed no hair blanket.
There simply was no corroboration sufficient lend credence to testimony of Nank. The trial court realized At the time this. rested, prosecution verdict, the defense moved for a directed trial court indicated there no but stated was corroboration he Supreme would allow the Court rule on the question.
After the defense made a motion for directed verdict because there was not an accomplice’s testimony, sufficient corroboration for prosecution following resisted discussion held: Well, “THE COURT: treat this as a serious motion.
“MR. regard? OVERFELT: what Well, motion, “THE I am going grant COURT: I say but it has some merit.
“MR. I frankly OVERFELT: think it any. don’t has We could have gotten alone, Honor, circumstantial evidence Your *18 I’m confident of that. Well,
“THE you all opportunity COURT: have shown is the for this (Trial boy plenty black to do it. You have opportunity.” shown of 2106-2107.) EX, Transcript pp. Vol. noted, previously
As testimony showing only oppor- corroborative tunity go Though is insufficient to to jury. allow the case the trial found, found, corroboration, court as I have that there is no he Supreme nevertheless allowed the case to so go an opportunity complete Court would review the record have and amake determination. greatly by only am case. The bothered evidence charged
defendant of the an guilty accomplice is crimes comes from every peijure who was a liar who had reason to self-proclaimed and history of violence though he had a accomplice, himself. This defendant, The noncapital sentence. deviation, given was sexual evidence, previous had no by competent guilt proven whose was to death. yet sentenced felony record and was by three statutes governed in Montana The death sentence entirety: in their quoted are hereinafter which are Aggravating circumstances “Aggravating Circumstances. following: of the by a
“(1) committed and was deliberate homicide the offense was prison. in the state imprisonment serving sentence person by a “(2) committed homicide and was deliberate The offense was deliberate of another previously convicted had been defendant who homicide.
“(3) committed homicide was was deliberate The offense means of torture. by a
“(4) committed homicide was deliberate The offense was ambush. lying in wait or person
“(5) as a and was committed deliberate homicide The offense was result in the which, completed, if would operation a scheme or part of person. one of more than death
“(6) defined in subsec- homicide as deliberate The offense was (l)(a) officer killed while 45-5-102, peace and the victim was tion duty. his performing in the
“(7) resulted kidnapping which aggravated The offense was MCA.) (Section 46-18-304, of the victim.” death any of are Mitigating circumstances circumstances. “Mitigating following: criminal “(1) history prior significant has no The defendant activity. under the
“(2) defendant was while the committed The offense was emotional disturbance. mental or influence of extreme under substan- “(3) duress or under extreme acted The defendant person. of another tial domination criminality
“(4) appreciate defendant capacity of law was requirements conduct to conform his or to his conduct substantially impaired. conduct
“(5) in the defendant’s participant was a The victim the act. consented to committed
“(6) in an offense accomplice an was The defendant relatively minor. participation and his person, another *19 “(7) crime, defendant, the time ofthe commission ofthe The at age. years less than 18 (Section
“(8) Any mitigation penalty.” fact exists in of the other MCA.) 46-18-304, In determin- mitigating and circumstances. aggravating “Effectof the court imprisonment, a sentence of death or
ing impose whether to mitigating circumstances aggravating shall take into account the a sentence impose enumerated in 46-18-303 and 46-18-304 and shall aggravating if or more circumstances of death it finds one sufficiently circumstances substan- mitigating finds that there are no death leniency. impose tial to call for If the court does not a sentence of exists, aggravating and one of the circumstances listed 46-18-303 may imprisonment any for life or for impose the court sentence of (Section by defining the offense.” 46-18- term authorized the statute MCA.) quoted penalty imposed statutes the death is if Under above aggravating mitigating there is an circumstance and circumstances 46-18-303, leniency. do not call for The first six subsections of section MCA, only aggravating defendant. The cir- inapplicable are statute, existed, cumstance to found under the if indeed one would be (7). absolutely corroborating be rooted in There is no subsection in aggravated evidence to show that this defendant was involved resulting in of the if one kidnapping the death victim. Even were accept testimony” expert, only the “hair offered it would corroborate that defendant committed the act of sexual intercourse. This act could not have resulted the death of the victim. There is testimony corroborating testimony no the defendant Nank’s victim. participated in an act which in the death of the resulted very strong mitigating A circumstance exists under 46-18- felony Furthermore, MCA. The defendant has no record. under statute, existing mitigation, must any subsection fact guilt The the defendant is questionable considered court. certainly mitigating such a factor. testimony support
We have seen there no corroborative Nank’s of this matter. I would like to examine Nank’s tes- version testimony. timony unreliability itself to show the total of that of the State’s purpose of such examination is to show the weakness case, innocent, the fact that the likelihood that the defendant is in such a circumstance. penalty imposed the death should never be Coleman, judge the trial should consider Though convicted certainty guilt imposing penalty. the death of Coleman’s before There was no confession from the defendant. There were no disinter- directly connecting ested witnesses Coleman to the commission ofthe charged. discussed, offenses previously independent As there was no If corroborating testimony evidence of kind. Nank’s lacked *20 credibility, the evidence ofColeman’sinvolvement becomes even more speculative. following excerpts from the record upon bear Nank’s veracity:
“Answer: She the pickup through driveway drove and over maybe I tipped motorcycle down within five feet of the bike. then right up proceeded gas side and I fill the Iup. to tank lied to her. This going always trying up is back to the crime and I was to make stories. Youknow.
“Question: you you Did tell them the same that thing have told the days? here the last two No, I lied to “Answer: Mr. Brake.
“Question: In respect you what did lie to Mr. Brake? Dewey “Answer: I bed. I Told Mr. Brake that tied Peggy Harstad I up Dewey and told him that undressed her instead of me. “Question: any any you So that statement in that record took LSD 25 or 30 times would a lie? maybe going
“It was a lie in so much that at that time I was try my to use that as an excuse to be admitted for crime into state hospital going prison, maybe instead of and so that is the reason statement, I I that made that and did lie because I heard of cases like before, may lied, yes. I
this so have “Question: you somebody you So now did tell had used LSD times, it, though you you thought you 25 or 30 lied but even about might get get hospital something, be able to off or into a state or right? it, yes.
“That of purpose would be Well, “Question: you any aggressive give examples did them of your part? behavior on know, lying nothing I I did a lot so I cannot state
“Answer: don’t (Trial truthfully get I a correct answer...” about what said there 1130.). V, 1056, 1057, 1102, 1103, Transcript pp. Vol. testimony contrary to the testimony
Nank’s on the stand was also telling he enforcement officers. Nank testified that law lying. officers were One of the law truth and the law enforcement originally enforcement officers who interrogated Nank following his Boise, Idaho, arrest stated that Nank told him he upset became Peggy Harstad something because she had said ego. to hurt his Nank, trial, during the Coleman accused the law enforcement officer lying following about this matter. The excerpt is taken from the transcript:
“Question: you And do recall that he T you said bet that she probably said something you that either your ego, you hurt made very mad, extremely upset’, something that, you like and did drop your head and any not make comment question? to that I
“Answer: did not make comment because I knew that he was trying to make me make some kind of a statement.
“Question: said, And then he say ‘Did she something to infuriate you your or hurt ego’,or type thing, you said, Yes, Yes, she did.’ No,
“Answer: say never did that. Mr. Brake lied and I also told Judge Martin when I inwas an earlier hearing court before about that.
“Question: Mr. Brake lied? *21 (Trial “Answer: Mr. Brake did he.” Transcript V, pp. Vol. 1092.)
Law enforcement officer Brake had also testified that at the time Nank and Coleman were arrested in their apartment Boise, that Nank police told the your “Get out Nank, ass of here.” during trial, Coleman again accused the law enforcement officers of lying. The following excerpt is taken from the record.
“Question: you And did you when were arrested tell police the Boise your to ‘Get ass out of here’?
“Answer: No. Mr. that, Brake lied about and I also tried to explain Judge that to Martin in an earlier court hearing that I said that Mr. — n Brake lied. That’s one thing, I have never I have never called a policeman (Trial that, name. He lied about too.” Transcript V, Vol. 1227.) p.
Again, Officer Brake testified that he read the rights constitutional to Nank at the Nank, time of his arrest. while testifying during the case, disputed this. Nank testified: —
“Question: verbally Did he did Mr. verbally you Brake advise your rights you as soon as placed were under arrest?
“Answer: atNot that time. particular time, Not at that no. “Question: Youheard Mr. say Brake that he did you your advise rights, and that’s a lie according you? verbally not arrested
“Answer: He did at that time when we were time, no, he rights advise us of our at that did not.
“Question: testify heard that You him he did?
“Answer: He did do it.
“Question: then, Well he lied? (Trial 1227.) Transcript V, He lied.” p.
“Answer: Vol. testimony inconsistency. Though Nank’s itself was riddled with replete examples, following record is is illustrative. When victim, testifying gave following about who undressed the Nank testimony:
“Question: took didn’t you? You her shoes off Yes, I did. “Answer:
“Question: You her? undressed 1189.) (Trial V, Dewey Transcript p. did.”
“Answer: Vol. V, from following testimony page is taken Vol. the trial transcript.
“Question: you And did her? undress IYes did. “Answer:
“Question: you again? up And did dress her Yes I did.” “Answer: V, Vol. of trial page transcripts,
And from testimony is following taken:
“Question: Dewey Do I that took her clothes off? understand never Dewey did her “Answer: not take clothes off.
“Question: off? you Do I took her clothes understand I did take clothes off. “Answer: her
“Question: pants? And that included her — well, moreless or She had on some kind of trousers “Answer: whatever.
“Question: underpants? Did include wearing if underwear at that I do not remember she was “Answer: time not.
“Question: you put back Did her clothes on? her on. I think with what she was put jeans blue back “Answer: *22 on, yes. them back wearing, put
“Question: you only one that dressed or -undressed So that were her, correct? is that Yes, that’s
“Answer: correct. officials he gave law enforcement the first statement Nank On the Nank testified that said undressed the victim. stand Coleman testimony and changed and then undressed victim had undressed the victim. His only one who testified that he was least, say was incredible. testimony, beginning with his childhood. history of violence Nank had a a he attacked his mother with butcher Though the records show that him with the knife, his mother who attacked he testified that it was testimony during the course of following knife. Nank related trial: Coleman’s — mother, Mary, “Question: you your that Mrs. Nank Now stated name? that her first Margaret. “Answer: you years age,
“Question: Margaret. At one time when were 18 your you throat and chased around the house held a butcher knife at you the head and shoulders and then poker beating upon with a telling in the tearing going the front of her dress and out street you sexually; you that had attacked her did do that? people other No, you wrong, that sir. “Answer: stated “Question: Well, your did she hold a knife at throat? butcher Yes, did. “Answer: she
“Question: you poker? And did she chase around the house with a Yes, “Answer: she did.
“Question: you Did she hit about the head and shoulders with poker? Yes,
“Answer: she did.
“Question: Did she tear the front of her dress?
“Answer: The front of her blouse.
“Question: you had her people And did she tell other attacked sexually? No, she did not.
“Answer:
“Question: She did not? no, at people,
“Answer: She did not run out the street holler did she not.
“Question: people you Did she tell other had attacked her sexually? (Trial might I think she have told a doctor. I donot know.”
“Answer: 1075.) V, Transcript pp. Vol. had attacked his mother
Though the records show that Nank sexually, may and indicate that he have attacked her butcher knife that his he took the witness stand in the Coleman case and said aggressor mother in fact had been the and he the victim. hospitals pre- in mental on four
Nank had been institutionalized history including occasions. He had a of violence violence vious *23 felony against both his mother and his sister. He had a record. hand, history On the had no of and no other violence felony record. Coleman a homosexual. was psychologist respect rapist’s typical
A testified with to a charac- testimony pattern teristics. This showed that Nank fit the but fact, Coleman did not. In this witness testified that the incidents of being homosexuals zero”. rape “practically involved was In I my years nineteen at the bench and bar have seldom been so A deeply by injustice disturbed of a result. defendant is here sentenced to die there no practically where is credible evidence connecting the defendant to the commission of the crime. There are strong reasons to believe the defendant did not commit crime for imposed. yet And this is penalty which the death court authoriz- ing imposition implore of that irrevocable sanction. I the federal record, finding wanting upon courts to examine this and it to be as do, prevent gross injustice. as I to and intervene SHEA, dissenting: JUSTICE event, I
Although penalty the death should vacated in would dissent, in my also reverse the convictions for the reasons stated and for the reasons stated in the dissent of Justice Frank B. Morrison. Although proper ruling, dismissal is the even in the event of failure dismiss, accomplice to of Nank’s tes- evidence corroboration I timony penalty imposed. thin that a death should not be also is so the death join relating imposition Justice Morrison in his dissent to penalty. I, II, parts portion part III and a IV of the exception
With the in such a majority opinion, opinion decides issues wholesale due summary have ourselves denied Coleman the manner we mention, fails to let alone process opinion to which he is entitled. The justice in discuss, attempt get the issues raised in Coleman’s final to such a system. court does one write a dissent state How begin? How does one know where to nonopinion? majority post-conviction holds that part opinion, III of the death, I and with this
relief is available to a defendant sentenced legis- unthinkable that either wholeheartedly agree. It would be availability of relief. could foreclose the lature or this court would or give however, holding seems to carte Unfortunately, the rest of for deny any applications and all blanche to a district court automatically af- relief, that decision will be post-conviction the issues. to even state or discuss firmed this court our refusal The District Court’s treatment application post-con- of Coleman’s for appalling, viction relief is handling this court’s of Coleman’s appeal from that order is appalling. even more case,
In the normal I agree part majority’s would II of the opinion that judge sentencing judge the trial and the should also preside an application post-conviction over general relief. But that give way rule must to a situation where one under a penalty death seeking post-conviction relief. For reasons which state in detail in part my dissent, III of post-conviction judge relief here should *24 have in judge preside called another application over Coleman’s for post-conviction relief. His failure mockery any to do so made a of meaningful presented consideration of the claims to the court. Mini- mally, this court should have ordered a hearing new before another judge. district agree,
I however, I part of the majority opinion in its conclusion that post-conviction essentially relief is a new civil action. And though even it illogical is somewhat to hold that judge who presided over the criminal case also preside should over the application post-conviction of relief, reasons, there are sound except in case, a death penalty judge for the same presiding over both proceedings. —
Finally, I agree with a part of the majority opinion part IV part opinion of the holding that judicata may res applied to a petition post-conviction for relief if the criteria of Sanders v. United States 1, 83 1068, 10 U.S. S.Ct. L.Ed.2d are followed in making this majority has, decision. But the in the remainder of IV, part and in parts other opinion, totally of the negated very those Sanders, criteria set out in by its summary wholesale and treatment of the issues.
United States v. Sanders is concerned with the extent a federal court in a post-conviction relief proceeding such as corpus, habeas can give controlling weight previous to a denial of corpus. habeas Al- though it procedurally is inapplicable us, to the case before nonethe- less Sanders does adopt sound and workable standards can apply to a petition for post-conviction relief after there has been a direct appeal. majority But the here has recognize failed to that we must consider each criteria justly say before we can judicata that res should bar the claim. This court must decide first ground that the same presented at another proceeding Second, and determined adversely. this court must then determine whether the previous decision was on third, merits. And this court must decide whether the ends of require By issue. this
justice again that we reexamine the third criteria, if apply judicata the court can refuse to res even the issue — justice if the of previously has been decided on the merits ends require it. criteria, has majority miserably applying here failed these if way determining opinion
for there is no from the how or So for applied. criteria were much Sanders. my eight they
I are at best parts, have divided dissent into arbitrarily give But these divisions do some semblance divided. concerning my appeal. order to views This presentation case on was aided neither Coleman’s brief nor his appeal occurs, hearing. at the When this situation arguments counsel’s is, course, even more. Coleman raised complicated situation trial court and before this 52 issues. Counsel lettered issues court Z, though beginning alphabet at again A and then started more, lettering AA through alphabet and went once the issues —ZZ through say, 52 issues. it is more than a little Needless itself with 52 issues on appellate difficult court concern when appeal. process complicated That even more the briefs arguments poor. oral are so I
I on those which to have have chosen to concentrate issues believe merit. not to that I at least some of the other say most This is believe con- merit, require me to issues not to have but time constraints worthy centrate on issues feel are most of discussion. those I, Part eight parts, divided divided follows: This dissent is into *25 Panel; II, Ver- Jury Unanimous Improper Empanelling Jury Part Sentencing IV, III, Judge; Part Recusal of Part Requirement; dict Statutes; V, Uncon- Penalty of Death Part Application Retroactive Defendant; VI, Right Part Shifting of Burden of Proof to stitutional Imposed; Question Penalty Death Should be Jury to Trial on Whether VII, Hearing Question of Death Evidentiary Part to Whether Right Punishment; VIII, Part Hanging by Constitutes Cruel Unusual Appellate Review. Meaningful Denial of totally has failed mention the majority opinion Because in issues, by designated refer letters as other than to to them the I the trial appeal, append relief and petition post-conviction of each disposes in Exhibit A. The order court’s order to this dissent raised, difficult to determine although at times it is of the issues this order is emphasize I exactly what issue was decided. further proposed findings and conclusions adoption word-for-word reason, hardly can considered this it presented law the State. For being analysis the careful judge judiciously carrying of a trial out his duties. (1978), 1,
I dissented in I 43, both Coleman 177 Mont. 39 to 732, 756, 299,] 579 P.2d 754 to II [185 Coleman Mont. 1000, 1022 2249, 605 P.2d St.Rep. 2248 to and I still issues, however, adhere to those views. On some of these I expand do my more on views in this dissent.
PARTI IMPROPER EMPANELLING OF JURY PANEL F, By holding Issue covered majority opinion omnibus of the IV, in Part the defendant deprived claims he was right of his to have jury properly that was empanelled. selected and In I [177 Coleman 1,] Mont. majority against 579 P.2d held him. I dissented on issue, 754-756, this alone, and for this reason I grant would defendant a new trial.
The majority has cut real comers and did not reach the real issue I, reason, and for again would review it applica- tion ofthe Sanders criteria. It seems that all majority is concerned about is whether there 12 jurors present were try the case and not jurors how happened to be there in the place. my first dissent, I pointed out the improper procedures in calling used in the panel jurors, of which at least some 12 jurors were called in the manner described.
PART II THERE IS NEITHER ASSURANCE THAT THE JURY REACHED A UNANIMOUS VERDICT ON ONE OR MORE THEORIES OF CRIMINAL RESPONSIBILITY SUBMITTED TO JURY, THE NOR ARE ALL THEORIES SUPPORTED BY SUBSTANTIAL EVIDENCE. UU,
Issue an issue not raised in Coleman’s appeals, first two claims that all three convictions must be reversed because there is no jury assurance that agreement reached unanimous on one or more of the alternative responsibility theories of criminal submitted jury charge. assurance, on each Without this Coleman claims that he has been denied right his to unanimous verdict as guaranteed by the Sixth and Fourteenth Amendment of the United Constitution, State guaranteed by II, and as Article Montana § *26 Constitution.
460 genuine attempt a to analyze has raised this issue without
Counsel it The apply and to this case. same issue has been raised in the issue court, and now and Fitzpatrick the McKenziecases before the undoub- recipient the cross tedly Coleman’s counsel has been of some fertiliza- believe, nonetheless, that Coleman has raised an issue deserv- tion. court, review Coleman’s convictions ing of careful this that the jury reversed there is no assurance that should be because unanimity single theory statutory responsibility. on reached a is not the fact is a death My position penalty based on that this cause; if penalty the issue is serious one even the death were not issue. fact that has been underlying the But the sentenced courts, court, hang requires especially carefully to all to But the and this the merits of this claim. trial court court consider miserably virtually the issue treating have failed frivolous. Court, in of its Supreme The United States the aftermath decision constitutionality emphasized the has upholding penalty, the death the the only penalty proper need to be sure not that death is the finding process penalty, guilt scrupulously but that the has been (1980), 625, 100 2382, In v. 447 S.Ct. adhered to. Beck Alabama U.S. L.Ed.2d Court stated: Supreme 65 penalty imposed insure that the is on the basis of “To death ... (the courts) emotion,’ than have invalidated caprice ‘reason rather procedural reliability that diminish of the rules tended to sen- apply to rules that tencing reasoning determination. The same must ” added.) reliability (Emphasis guilt diminish the determination. recognized Supreme long question has And Court penalty in a case must not whether a verdict was unanimous death guesswork. be left to S.Ct. 333 U.S. Andres United States it jury that must be
L.Ed. the trial court failed instruct guilt as to both and as to sentence recommendation. unanimous death involved, penalty a conviction required Under the statute verdict it jury directly unless stated in its imposed requires court held that where a statute imposed. should not be required, jury had not unanimity jury input sentencing, unanimity that it must reach as to expressly been instructed also mandatory (thereby triggering no whether it made recommendation a recommenda- or whether it made penalty), of the death imposition there no penalty imposed. Because the death not be tion that unanimity requirement that the knew assurance “In reversed, stating: death sentencing, Court Supreme respect *27 unanimity] as to [doubts here presented these cases, such as doubts 752, 68 S.Ct. U.S. at the accused.” 333 in favor of resolved should be at 885. (1979), [186 Mont. case, McKenzie State v. third McKenzie
In the of discussing impact the 425, 474, St.Rep. 474,] jury the jury instructions on Sandstrom-type unconstitutional the may McKenzie also have verdicts, specter the added raised the jury because of unanimous verdicts of less than been the victim the failure ofthe jury, and because of charges to the many alternative conviction. I underlying basis for the the specify returned to verdicts (5th Cir., 1977), 553 Gipson United States quoted cited and from of twelve 457-458, “[Requiring the vote held that: F.2d which right that his to does little to insure jurors to a defendant convict jury of con- prerequisite unless this protected unanimous verdict is required.” action is also defendant’s course of sensus as to the case has penalty in a death of a nonunanimous verdict specter The here. now been raised I, distinct crimes: Count charged with three
Coleman was III, II, and Count homicide; aggravated kidnapping; deliberate Count charged, each ofthese crimes intercourse without consent. For sexual on several it could reach a verdict based jury the instructed that was I, Count responsibility. criminal Under theories of alternative of guilty it find Coleman deliberate jury was instructed could rule, by finding that he felony-murder or by homicide use of the But under the Peggy killed Harstad. purposefully knowingly felonies, several jury given was the choice of felony murder rule felonies, determining whether apply including unspecified II, aggravated Count guilty felony-murder. Under Coleman was of here) (which penalty the death triggered conviction kidnapping had in mind felony Coleman jury given several choices of what was Furthermore, Peggy Harstad. he held or secreted to commit when by substantial evidence. unsupported choices are several these consent, jury was III, without Under sexual intercourse Count consent”. One proof of the issue of “without given two choices as to evidence. unsupported substantial those choices is on unanim- jury only general instruction gave The trial court stated that “... such verdict charges, which ity, applicable to all three you agree must on unanimous, means that all of which must be jury that its failed, however, instruct the The trial court verdicts.” one or more unanimous on charge must be verdict on each jury given forms The verdict responsibility. criminal theories of court, provide trial no basis to determine the underlying statutory theory applied by jury theories finding guilty. jury guilty returned verdicts on all charges, three but the specified only
verdicts guilty I, Coleman was of Count deliberate homicide; that he guilty II, was of Count aggravated kidnapping; and that he guilty III, of Count sexual intercourse without consent. It impossible to determine from these verdicts jury whether the was unanimous on one or more theories of criminal responsibility for an essential addition, element of the crime. In at theory least one “without consent” jury submitted to the charge on the of sexual (Count III) intercourse without consent is unsupported by substantial evidence. But more important, several theories submitted (Count II) charge aggravated kidnapping are supported by substantial evidence. It remains for those more knowledgeable *28 than me to explain how appellate court can approve the death penalty for the conviction aggravated kidnapping though even several theories of criminal responsibility charged offense, as in that supported by are not substantial evidence.
Both the trial court and the majority sloughed have off this issue essentially as frivolous.
In adopting verbatim the proposed State’s finding conclusion, the trial court ruled:
“UU. Petitioner contends that he
right
was denied his
to a unani-
jury
mous
verdict. But when
whole,
the instructions are read as a
they must
299],
[185
under Coleman II
1052,
Mont.
605 P.2d at
claim
Cupp
fails. See
v. Naughton,
141, 147,
396,
414 U.S.
[94 S.Ct.
400,
addition,
38 L.Ed.2d
In
petitioner’s
368].
reliance on the federal
misplaced
constitution is
in that the federal constitution does not
guarantee the right
jury
to a
in
felony jury
unanimous
verdict
state
Apodaca
trials.
v. Oregon,
1628,
[92
This treats the summary issue a most evading rather than meeting question majority opinion raised. But the is worse, even for it identify issue, fails even to analyze let alone to respect issue with to the procedural charges, context of the instructions, and the verdicts returned. The majority disposes of this claim ruling another omnibus in Part opinion, disposing VII of its of this and four more issues: post-conviction procedure remedy,
“... Because the is a new civil the failure present proceedings claims earlier would not bar However, them at presentation from this time. we have reviewed the and find the claims same to be unmeritorious. It was not error for the deny summarily...” court to them
The trial court’s rebanee on
v.
Johnson Louisiana
406 U.S.
356, 92
Apodaca Oregon (1972),
S.Ct.
This court denying equal protection law, without distinguish between situation where a defendant charged is with statutory one crime and one theory of criminal responsibility, and a situation where a defendant charged crimes, with one or several but where charged he is also multiple statutory theories of responsibility. situation, criminal general the first instruction on unanimity, in guilty addition to a only verdict returned on the charge only statutory theory responsibility charge, for that would unanimity. assure But that is not so in the second situation where a *29 charged crimes, defendant is charged three but also with com- mitting those crimes in several ways. situation, alternative In this general unanimity Rather, instruction as to will not jury suffice. the must be instructed that its verdict must be any unanimous on one or statutory more in applied reaching Further, theories its verdict. the verdicts returned should statutory disclose the basis on which the jury fulfilled, reached its verdict. If requirements these are not charged defendant deprived such a situation is equal protection grievous, where, here, of the law. This situation is especially the defendant has been sentenced to death. REQUIREMENT THE CON-
THE UNANIMOUS VERDICT IN THE TO TEXT OF THE CHARGES FILED: FAILURE OF STATE FOLLOW STATUTORYPROCEDURES First, charging by alleging recognize we must that offense, the State failed to statutory several theories for the same so, problems If the proper statutory guidelines. it had done we follow statute, 46-11-404, MCA, applicable face here would not exist. The § filing charges, of alternative clearly procedure sets out the for the is, offense.” Section 46-11- that “... different versions of same 404(1), MCA, part: states in relevant
“(1) indictment, information, complaint may charge or two or An commission, together connected in their more dif- different offenses offense, the same or two or more different offenses statements ferent prosecution ... The is not separate of the same class under counts forth in required to elect between the different offenses or counts set indictment, complaint, may and the defendant be information charged. Each convicted of number of the offenses offense of convicted must be stated in the verdict which the defendant added.) (Emphasis finding the court.” “may”, message is that the Although statute uses the word charge in the manner stated in order to avoid prosecutor should charge three problems prosecutor such as exist in this case. The did crimes, him to do so. But the statute separate permits and this statute of the same offense” are also states that if “two or more statements If had separate it done so “under counts.” been charged, that here, on each of the jury would have returned a verdict done counts, for its decision would be separate and therefore basis clearly contemplates procedure specified. The statute also theories, required is not to elect his but stating prosecutor that the the defendant is convicted must be stated that “each offense of which in the verdict...” mean, in the entire sentence to context with read this last
subsection, charged separate counts with a if a defendant is offense, form must be same a verdict different statement of the statement, jury must return a separate prepared for that procedure offense. If this statement of the particular verdict on that case, precise know the basis in this we would had been followed then, charge. each It is the State reached its verdict on which charging improperly responsibility who must assume ambiguous verdicts. setting in motion the Coleman and for *30 statute, by the following magnified this is in not The State’s error jury the its verdict must be court to instruct failure of the trial theory responsibility criminal statutory of unanimous on each to Again, fault must be laid the instructions. the by to it presented Furthermore, provided trial trial the court the State and to the court. jury’s for the case. ambiguous the verdicts general to the a of the law relation proceed I next to discussion the verdict, then will discuss jury a unanimous and requirement of instructions, the in this case. jury the and verdicts returned charges, STATUTORY DETERMINING JURY UNANIMITY WHERE OF THE ARE CHARGED THEORIES CRIMES IN THE COUNT ALTERNATIVELY SAME statutory count, only and if only charged If one crime is in one one requirement normally theory pleaded, unanimity of that crime is the jury It is to the it must presents problem. no sufficient instruct problem entirely a But the is different reach unanimous verdict. charged count, a defendant is with one crime in one but where where count, committing that alterna- charged in the same he is with crime tively ways. in several different charged aggravated kidnapping example,
For if a defendant is with felony commit of intercourse without purpose with a the sexual consent, assault, if felony or it is not sufficient six aggravated the the the the jurors kidnapped believe that defendant woman consent, and of without the six other purpose sexual intercoruse the the for the jurors kidnapped believe that defendant woman If committing aggravated jury her. returns purpose upon of assault a basis, unanimous the they agreement, not in a verdict this are situation, question it a whether verdict cannot stand. is not of theories, question it is supports substantial evidence both theory. up one It is jury unanimously agreed at least whether court jury unanimity appellate to reach function jury unanimity. is to determine if the in fact reached — FUNCTION OF DETERMINING JURY UNANIMITY APPELLATE COURT mind, court, course, jury’s cannot and so appellate The read filed, necessarily charges involves an examination of review given defining charges, the instruc- instruction the elements those unanimity, and the given regard requirement tions jury. Obviously, if the verdict actually returned verdicts specifies theory used in finding guilt, problem no is presented. only It is then question of examining the evidence to theory determine if the supported by evidence. question, therefore, nearly always arises where the verdict ambiguous form is only jurors actually know what was decided.
Ambiguous jury verdicts in criminal frequently cases are the result *31 of a failure properly charge crimes, a crime or and of a failure to give jury proper example, instructions and verdict forms. For if a charged crimes, defendant is in Count I with two or more what does jury a verdict reveal where it finds guilty the defendant is of Count I? Did the jury convict the defendant of one crime or both? theWas (3rd jury respect unanimous with to either? United States v. Stark 1975) 112, Cir. see, 515 F.2d 116-117.Also United v. States Uco Oil (9th 1976), 833, 835, (1977), Co. Cir. F.2d 966, 546 cert. den. 430 U.S. 1646, 97 And, course, S.Ct. 52 L.Ed.2d questions 357. the same can asked, be although slightly context, in a different if a defendant is charged crime, in Count with one but where several alternative alleged theories are also jury that count. If the guilty returns a I, verdict questions to Count arise jury as to whether the convicted defendant under theory, one alternative or more than one alternative theory, addition, or under all alternative theories. In question one arises also jury agreement to whether the reached unanimous on at theory? least one No one knows.
One of the first questions
jury
is to determine how the
instructed
question
unanimity.
on the
Some courts have held that
general
instruction
unanimity
see,
on
is sufficient. For example,
(1976),
374,
State v.
1328;
Arndt
87 Wash.2d
P.2d
553
United States
(2nd
(Iowa
1975),
311;
v.
1979),
Natelli
Cir.
527 F.2d
State v. Williams
248;
(1948),
377,
285 N.W.2d
State v.
122
Souhrada
Mont.
hand,
The defect of a instruction has in United been out Gipson, supra: States v. unanimity requires jurors
“The rule thus to be substantial agreement just step preliminary as to a defendant what did as determining guilty charged. whether the defendant is of the crime Kequiring jurors the vote of twelve to convict a defendant does little right protected to insure that his to a unanimous verdict is unless
467
defendant’s course of
as to the
jury consensus
prerequisite of
at 457-458.
553 F.2d
required.”
also
action is
instruct
the trial court
that
ruling
requirement
is a
Implicit in this
a basis
any theory used as
unanimity on
it must reach
jury
that
guilt.
find
jury must be instructed
have held that a
courts
Several state
theories
the alternative
or more of
unanimous on one
its verdict be
See,
example, State v.
jury for its decision.
submitted
1000, 1003; People v.
(1943),
Utah
133 P.2d
103
Bleazard
And
because instructions failed to murder, was not instructed premeditated and because unanimously statutory theory order agree that it must same *32 Embree, Michigan And in the to reach a verdict. N.W.2d 693-694. they instruct again trial courts that must Appeals
Court of
warned
of
juries
question
must be unanimous on the
their verdict
it
or whether was
alleged
premeditated
whether the
murder was
felony-murder
the
calling
application
in
of
committed
a situation
Golladay,
Finally, in
the
Mich.App.
Obviously, theory if the responsibility clear, of criminal and the clear, verdict is review can then center sufficiency on the of the If appellate evidence. court can jury applied state that the to a particular theory decision, or theories in reaching its the court can then confine itself to examining the evidence to determine its suf- ficiency. sufficient, affirmed; not, If it is it can be if the conviction must be reversed.
But appellate what does the court ifdo the verdict fails to disclose statutory theory jury on which the analysis based its decision? An of all sufficiency theories to determine their clearly proceeds on the assumption theory used, that whatever jury jury or theories the was unanimous. assumption unanimity, Without this the convic- precisely tion would be reversed inability because of the the say court jury that the verdict was unanimous.
But an assumption unanimity should never be made a case here, such as the one involved unless the specifically has been instructed that it must be unanimous on statutory theory or theories on which the State prosecution. give has based its Failure to event, this instruction is cause for reversal. In this appellate review determining would then be confined to whether all theories are supported by substantial evidence. If all supported, were so judgment would be reversed and a new trial ordered under all supported, theories. If not so the case would be reversed with retrial only supported by on those theories substantial evidence. n *33 appellate assumption unanimity, Where the court rests on an however, required only supported by reversal is if all theories are not jury substantial evidence. But the reason for reversal is not that the theory theory was less than unanimous on a or on which it based its conviction, Rather, -unanimity for is assumed. the reason for reversal theory supported on a not may been unanimous jury have is that the theory is the reason for Uncertainty to the used as the evidence. used a the same as that to reverse rationale is much reversal. This on an is inconsistent instructions jury jury given verdict where rule policy a fundamental Reversal is based on important point oflaw. jury tell followed cannot whether appellate that if the court unfair to affirm a instruction, and it would be correct or incorrect See, example, my an erroneous instruction. verdict based on 1,] 160, St.Rep. Mont. [191 in Price dissent State v. theory appellate review. developed thoroughly where uncertainty is as in both situations The reason for reversal impelling evidentiary theory may it have followed an jury to what the did where instruction, evidence, by the or an erroneous supported not uncertainty a correct was is created as whether verdict therefore reached. responsibility are alternative theories of criminal
Where several ambiguous the verdict is as to presented jury, and where which necessity an theory applied, or were review of rests on theories actually theory jury no knows implicit recognition that one what instructed, If reaching jury in its verdict. had been followed however, any theory to reach applied that it must be unanimous on decision, jury assume that the appellate a then an court should instruction, in But where there is no such fact unanimous. The appellate assumption. question court should not make that boils — leeway jury can policy permitted down to one of how much given its due to the fact that a reaching decision? If consideration stake, liberty policy his life is at should come defendant’s even down on the side of reversal. this, general unanimity instruction should not
In a case such unanimity. assumption an that the enshrine the Either verdict agreement, assumption jury or an jury reached unanimous analysis, agreement, further fails did not reach unanimous without way assumption An either still rests problem. to deal with the basic recognition appellate that the court cannot tell how the implicit on an certainty actually In to the actual decided the case. addition verdict, be man- ambiguous from the reversal should also resulting State, defendant, problem. not the caused dated because system. judicial a defect defendant should suffer from charging alter- alternatively in one count rather than charging (see MCA, supra) the State natively 46-11-404 separate counts § compounded then The trial corut problem ambiguity. initiated the *34 ambiguity jury the by failing to instruct the that its verdict must be unanimous on or one more of the alternative theories of criminal
responsibility alleged finally, as State. And the trial court again problem by submitting added to the jury ambiguous surely verdict forms. Doubt inheres in this situation. This situation (the court) was created by prosecution the State and the given benefit of this doubt should be to the defendant. United States Andres, case, supra. any process criminal fundamental due a impels reversal; in a penalty death case such as this fundamental process due a mandates reversal. FILED, THE
ANALYSISOF CHARGES THE INSTRUCTIONS GIVEN, THE AND VERDICTS IN RETURNED THIS CASE charge count, formal count, The for each the instructions for each count, and the essentially verdict forms for each present the same problems. I, The for instructions Count deliberate homicide II, charge, aggravated for Count kidnapping charge, and for III, Count the sexual charge, respec- intercourse without consent tively gave jury several statutory alternative theories on which jury jury given could its general base verdict. The unanimity designed instruction to all three apply counts. But unanimously was not instructed that it agree any must Furthermore, one or more of statutory the alternative theories. nothing forms required verdict more than determination that the guilty guilty homicide, or guilty defendant was not of deliberate or guilty aggravated not kidnapping, guilty guilty sexual intercourse without consent. (instruction 41) general unanimity on
The instruction No. stated: retire, you you
‘You are instructed that are to elect one of when your members foreman will at sign who verdicts arrived the jury. unanimous, you
“Such must be which verdicts means all of your must will agree provided the verdicts. Verdict forms convenience. you verdicts, you your notify
“When reached will the bailiff have added.) you (Emphasis who will return into court.” separate charges. each proceed next to discuss CHARGE, COUNT I: THE DELIBERATE HOMICIDE JURY INSTRUCTIONS AND VERDICT prosecutor following language charge used the in the formal (Count I): homicide deliberate purposefully knowingly “That the defendant caused the death Harstad, being, Peggy engaged of another human to-wit: Lee while following Kidnapping the commission of the felonies: and Sexual Consent, involving physical Intercourse Without the use of force and against Peggy violence the said Lee Harstad.” charge, This unequivocally conjunctive, required that the prosecutor prove following each of the facts:
1. deliberately knowingly That Coleman caused the death of Harstad; Peggy Lee engaged
2. That he did so while he in the commission of both consent; kidnapping and sexual intercourse without engaged 3. That while in the commission of these crimes Coleman physical used accomplish force to them. out, however,
As it turns jury the was not instructed the conjunctive itself, language charge of the but rather was instructed jury that the if could convict it determined that either knowingly woman, or purposely killed the or that he did so while engaged in the commission of applications several alternative felony-murder rule. jury
The I, was instructed in the exact language of Count but was also instructed on the essential provided facts to sustain the (instruction 27) charge of deliberate homicide. This instruction No. unequivocally jury told the that it had a statutory choice of several responsibility theories of criminal which base its conviction: charge homicide, “Tosustain the of prove deliberate the State must following the propositions:
“First, that performed causing the defendant the acts the death of Harstad; Peggy
“Second, so, that when the defendant did “(1) purposely knowingly He acted or or “(2) engaged kidnapping any That he was in the commission of or felony other which the use or threat or physical involves of force against any violence individual. you your “If find from consideration of all the evidence that each beyond doubt, propositions proved of these has been a reasonable added.) you guilty.” (Emphasis then should find the defendant proposition Under the proved, jury second to be the had several determining First, choices in how the woman’s death came about. the jury “purposely knowingly” could determine that Coleman or caused so, jury the woman’s death. If the could convict Coleman of deliberate Second, jury homicide. could convict Coleman of deliberate if engaged homicide it found that he was in the commission of Third, kidnapping. jury could convict Coleman of deliberate “engaged any homicide if it found that he was in the commission of... felony other which physical involves the use or threat or force added.) against any violence (Emphasis individual.” Therefore, jury guilty charge could base a verdict for the by concluding “purposely deliberate homicide that Coleman or know- ingly’ woman, by applying felony-mur- caused the death of the or der rule that Coleman caused the woman’s death while he was kidnapping committing any felony her or while he was that other using physical threatening physical involved force or to use force against person. language “any the woman or other other felony” provides range possible a much wider jury felonies may beyond have kidnapping. considered The verdict returned however, jury, provides no basis from which one can determine statutory theory jury which or theories were used to convict. signed by jury only The verdict form foreman states that: “We, jury, guilty the above-entitled case find the defendant charged.” of Deliberate Homicide as jury felony-murder
Did the decide without reference to the rule purposely knowingly that Coleman had killed the did woman? Or decide that Coleman caused the woman’s death while kid- *36 napping jury her? Or did the decide that Coleman caused the woman’s engaged death while he was in the commission of some other un- specified felony that involved the use of force or a threat to use force? jury statutory Or did the base its verdict on more than one of these criminal Finally, important, theories of and was responsibility? most jury statutory the unanimous on at least one these theories of of responsibility guilty criminal when it returned its verdict? that in jury
The trial court failed to instruct the order to convict homicide, agree unanimously upon Coleman for deliberate it must at responsibility least one of the alternative theories of criminal relied Green, a upon by Gipson, supra supra, require the State. and that jury jury be so instructed. The verdict does not establish whether the purposely knowingly found that the or caused the woman’s defendant guilty by application of the death or whether it found the defendant jury indicate that the And the does not felony-murder rule. verdict criminally that the defendant was agreement in unanimous was one, on theory. my previous Based any specific responsible under unanimity the deliberate homicide requirement, of discussion the It must be reversed and permitted to stand. should not be conviction (1967) California, U.S. Chapman v. a trial ordered. new 705; see, Gipson, 824, 17 United States supra; S.Ct. L.Ed.2d supra. CHARGE, II: THE KIDNAPPING
COUNT AGGRAVATED AND INSTRUCTIONS VERDICT JURY charge II, aggravated Count the of The same situation occurs with the con- require reversing also kidnapping, policy but here reasons conviction, reason of this Coleman viction for the added that because laying Due zeal ofthe trial court in the to death. was sentenced jury the was impose penalty, to it to the death foundation enable special finding in its to make a the woman met required verdict this to he a being kidnapped. assuming her as a of Even death result unanimous defect in finding, upheld it still because of the cannot underlying aggravated kidnapping conviction. II, kid- charged aggravated with Count prosecutor Coleman following in napping, language: and without lawful knowingly purposely
“That defendant Harstad, by authority person, Peggy another Lee restrained to-wit: using physical her in of force holding place a isolation felony, a Sexual Intercourse facilitate commission of to-wit: Consent, and, inflicting injury purpose bodily Without for the on Harstad, terrorizing victim, Peggy resulting in the said Lee added.) Peggy (Emphasis death Lee Harstad.” charge conjunc- phrased as the homicide in the Just deliberate was in the con- tive, aggravated kidnapping charge phrased so was the so, essential junctive. being required prove This the State was each However, charge charged. jury fact was instructed disjunctive. Instructions conjunctive, it was instructed but 37,38 given clear several abundantly and 39 make it under which it could find statutory responsibility theories of criminal kidnapping. guilty aggravated essential sets out a different list of But each these instructions inconsis- Such an proved in order to sustain conviction. facts to be case, let alone permitted in criminal tency should not be enough Here, inconsistency is reason penalty death case. *37 reverse the conviction of aggravated kidnapping. anyone How does know which of the inconsistent instructions the jury followed in reaching guilty verdict, whether, its or inconsistencies, because ofthe jury any followed of them at all?
In instruction the trial court defined aggravated the crime of kidnapping as follows:
“A person commits the aggravated crime of kidnapping if he knowingly purposely or and without lawful authority restrains person by another secreting or holding her in place ofisolation with any following purposes: of “(1)to facilitate any commission of felony;
“(2)or to inflict bodily injury or to terrorize the victim.” (Emphasis added.)
In this jury instruction the was told that it could convict if Coleman, woman, in restraining the purpose had the to commit any felony, or if he purpose had the bodily injury, or if he had the inflict purpose to terrorize the woman.
Then, instruction attempted No. 38 to set out other facts which the State required to prove, according to the charge actual filed against the defendant:
“The offense Aggravated Kidnapping requires that voluntary (the act secreting holding or the victim without authority in lawful place isolation, or the holding of said person byphysical or force thereof), threats be done either knowingly purposely, or and in addi- thereto, tion that it be done for one of the following purposes: “(a) (in to facilitate the any commission of felony this case sexual victim, intercourse without consent of the aggravated or an assault upon victim), or
“(b) added.) bodily to inflict injury on the (Emphasis victim.” instruction, jury was told that the State had prove First, these facts: that Coleman held or woman, secreted the and that he did so either without authority lawful or using physical force or threatening physical to use Second, that Coleman had one or force. more of the following purposes when he held or secreted the woman: (a) the purpose to facilitate the (here, commission felony limited assault) (b) to sexual intercourse without aggravated consent or purpose bodily injury to inflict upon the woman. Assuming there is no substantial evidence support each of these alternative theories, way there is still no to tell whether the was unanimous in applying any theory. one considerably
Instruction expands range No. 38 of alternatives set out in instruction No. 37. But then instruction 39No. further *38 the again setting expanding muddies waters out and the theories of responsibility criminal under charged: which Coleman was
“To charge aggravated sustain the of kidnapping, the state must prove following the propositions:
“First, That the defendant knowingly purposely or restrained Peggy by secreting isolation; Harstad her in a place of
“Second, That the purpose defendant had the in acting so facilitate the any felony, commission of bodily injury, or to inflict or Peggy terrorize Harstad.
“Third, doing in so the defendant acted without lawful authority.
“If you your find from consideration of all the evidence that each propositions of these proved beyond has been doubt, a reasonable you then should find guilty. the defendant “If, hand, you on the other your find from consideration of all the evidence that propositions these has not proved beyond been doubt, you reasonable then should find the guilty.” defendant not added.) (Emphasis
Instruction No. 39 considerably differs from instruction No. 37. jury The was told that it guilty by could find Coleman finding that he had any one of three purposes in restraining secreting or the woman. First, jury the guilty by could find Coleman finding he had the purpose to any felony. commit Although instruction No. 37 also states any felony, instruction No. 39 considerably expands upon instruction 38, which limited purpose the to the commission ofsexual intercourse without consent or aggravated Second, assault. jury the could find guilty by Coleman finding his purpose bodily injury was to inflict upon prosecution her. This theory is also stated in instructions No. 37 and and therefore Third, is not inconsistent. jury could find guilty by finding purpose holding secreting his in or woman language was to terrorize her. This is consistent with instruc- tion No. 37 but is not consistent with instruction No. 38. inconsistent,
Because these way instructions are there is no jury followed, determine which ofthe instructions the has or whether jury disregarded altogether. has them Where there has been inconsistent instruction on the essential elements of the crime charged, here, as there was it should not be appeal. tolerated on Here especially, where inconsistent instruction on the elements of the may crime have led to a in resulting penalty, conviction the death reversing think — before conviction court should not have to twice should be automatic. granting a new trial reversal in instruction on the essential dangers The inherent inconsistent magnified by are further aggravated kidnapping elements jury fails to disclose the general verdict returned which jury applied reaching in its verdict. theory or theories the stated: verdict cause, We, in find the defendant jury,
“A. the above-entitled Charged. Guilty Aggravated Kidnapping of the offense not] die as a Peggy [did] [did find that Harstad “B. We further Aggravated Kidnapping. result of said
“(Strike apply).” word or words that do not out bracketed kidnapping, had guilty aggravated To find Coleman woman, had, Coleman, restraining secreting or to find that listed instructions purpose purposes as his at least one of these purpose purposes 37, 38 and 39. How can we tell which No. And, the instructions reaching its decision? because jury used *39 crime, how can we an essential element of the are inconsistent on And, the instructions jury the used? because tell which instruction any the three inconsistent, jury that the used of can we be sure are instructions? First, in charge must be reversed. aggravated kidnapping element instructions as to an essential
a criminal case inconsistent Price, See crime, and a new trial. requires a reversal ([191 1,] my in dissent Mont. and cases cited 622 P.2d 1935A). in Second, trial court erred the St.Rep. 37 must be unanimous failing jury the that its verdict to instruct charged by the responsibility theory theories of criminal or Embree, Olsson, State v. v. supra, People v. supra; People State. Bleazard, Thompson, People v. Golladay, v. supra; State supra; Third, the trial court sub- Gipson, United States v. supra. supra; jury, and the verdict forms to the ambiguous mitted verdict statutory theory or theories on which returned fails to disclose Fourth, that consider guilty determination. jury based its statutory each of support does not evidence substantial (1980), v. Green State jury. theories submitted ag- that finally, And consider P.2d 628. Wash.2d imposition the foundation conviction laid gravated kidnapping judicial if the absolutely required penalty. the death Reversal integrity. to maintain its system is OF EACH DOES NOT SUPPORT EVIDENCE
SUBSTANTIAL TO THE JURY THEORIES GIVEN ALTERNATIVE THE that it could convict jury was told No. In instruction for the he held or secreted woman by finding that Coleman consent or for committing sexual intercourse without purpose is no substantial assault. There committing aggravated purpose of either of these theories. support evidence to to establish that when woman not a shred of evidence There is that of secreted, purpose then had as his or Coleman was first held consent. When the woman intercourse without committing sexual Nank, testimony accomplice it was according to the kidnapped, was fact, it not until and to kill her. purpose their to rob woman later, initiation, (according that Coleman at Nank’s sometime Nank) The fact intercourse with the woman. accomplished an act of (corroborated only by a testimony, however weak accomplice that car), indicated that at some hair found in the woman’s negroid pubic woman, intercourse with the during episode Coleman had time purpose as his that Coleman had intercourse fails to establish assume secreting holdings her. Even under which holding or instruction, general e.g. of a State Souh- unanimity by giving rada, must be reversed because substantial supra, the conviction theory that Coleman held support the alternative evidence does accomplish an act of sexual or secreted the woman order to intercourse without consent. support a conclusion
Nor is there substantial evidence holding secreting the woman to purpose had as his testified upon Accomplice assault her. Nank aggravated commit an they got person kill the first planned to rob and that he and Coleman purpose that it was Coleman’s from, this does not establish a ride but it can Although the woman. aggravated upon assault to commit an in the would be committed aggravated that an assault argued woman, it does not establish killing the nonetheless process of *40 purpose of specific the for the held or secreted woman Coleman aggravated an assault. committing Coleman 37, 38, provide also each that No. and 39
Instructions purpose if he had as his aggravated kidnapping could be convicted of her. woman, bodily injury upon secreting the holding or inflict theory, Accomplice either. support this evidence does not Substantial and kill purpose it their to rob testimony only states that was Nank’s that again argued it can be up. Although them person picked who purpose kill subsumes a purpose to inflict bodily injury, it nonetheless does not establish the fact that Coleman held or secreted the woman specific for the purpose inflicting of bodily injury upon her.
Instructions jury No. 37 and 39 told the that it could convict aggravated Coleman of kidnapping by finding that he had the purpose in holding secreting woman, or to terrorize her. There is not a shred of support evidence to this conclusion either. Assuming testimony of accomplice true, Nank to be undoub- tedly woman, stage at some of leading the events to her death, was terrified. But Nank testify never did that he or specific had the purpose to person terrorize the who gave them a ride.
Based accomplice testimony, Nank’s and assuming it to be sufficiently corroborated, Coleman could charged have been under aggravated kidnapping statute having with specific purpose to commit two robbery felonies: and homicide. MCA.) (See, 45-5-303, But he was not charged. Rather, § so he charged having specific purpose, others, among committing consent, sexual intercourse without committing aggravated assault, an inflicting bodily injury, and of terroriz- ing. supports Substantial evidence none of these theories. Even holdings under jury unanimity which assume giving of a general instruction, Souhrada, e.g., State supra, v. Coleman’s conviction must be jury reversed because the may have con- theory victed on a not supported by substantial evidence. We should compelled to reverse grant this conviction and a new trial. The jury instructions are inconsistent on the essen- tial charged. elements of the crime There is no assurance reached a unanimous verdict on at least one of the responsibility alternative theories of criminal set out for estab- lishing purpose holding secreting Coleman’s the woman. For at purposes instructions, least four of those listed in the there is no substantial support Finally, evidence to them. this is penalty a death case and the permit margin courts cannot of error.
Our standard of Chapman review dictated the rule of California, supra. Proper application Chapman requires aggravated kidnapping conviction be reversed and a new trial granted. see, Gipson, supra. Also United States v. *41 III: THE
COUNT CHARGE OF SEXUAL INTERCOURSE CONSENT, JURY
WITHOUT THE AND VERDICT INSTRUCTIONS III, Similar defects exist with the conviction Count sexual prosecutor charge intercourse without consent. The worded the as follows:
“That had knowingly the defendant sexual intercourse without consent, wife, Harstad, Peggy with female not his to wit: Lee bodily injury upon Peggy the said Lee Harstad in the course inflicted committing (Emphasis sexual intercourse without consent.” added.) way jury
The defect exists in the instructed to proving consent,” “without one ofthe essential elements ofthe crime. The jury proved was instructed that “without consent” could alternatively. be Instruction No. 33 defined “without consent” as follows: “ Without consent’ compelled means: The victim is submit by death, by force or threat of imminent bodily injury, or kidnapping, to added.) anyone.” (Emphasis be inflicted on This 45-5-501(1), instruction is taken verbatim from MCA which § defines the term “without consent” for all ofthe sexual offenses in the criminal code.
By instruction, this could prove State lack woman’s by showing consent compelled by that Coleman her physical force to submit to him. accomplice testimony Nank’s establishes by had intercourse with the physical woman the use of force — her However, hands were tied. there is no corroboration for this testimony. negroid The pubic hair found in the certainly woman’s car does not physical corroborate that he used force. There no as- surance the jury based its conviction this definition of “without consent.”
By instruction jury by No. could also convict Coleman finding by that he had threatening intercourse with woman her anyone death, bodily injury, kidnapping. else with imminent or But testimony negates the accomplished Nank’s conclusion that Coleman by making any intercourse of these threats. There is no evidence death, anyone Coleman threatened her or else imminent bodily injury, or kidnapping. The lack of substantial evidence in the record support theory proving this alternative the essential element of consent,” “without requires that the conviction reversed. Furthermore, jury likelihood exists that the used a substantial theory by convict Coleman of sexual supported evidence to finding, jury made an additional intercourse without consent. supported by this not be substan- later held court Coleman to (579 742-43), physi- at that Coleman had inflicted tial evidence P.2d act of intercourse. Because injury accomplishing cal on her while finding, the likelihood is that it determined that made bodily injury *42 her with and then carried it out Coleman threatened is, however, no actually inflicting injury. There substantial physical already deter- support that conclusion and this court had evidence to finding physical in jury mined that the erred that Coleman inflicted injuries her. upon however, is the
Beyond question, the evidence still fact substantial may jury deprived that been of a unanimous verdict Coleman have jury no that the on the of “without consent.” There is assurance issue not that it must was unanimous on this issue. The instructed theory. Our reach a unanimous verdict on “without consent” California, again governed by Chapman standard of review inter- of the sexual supra. Proper application Chapman requires that trial be reversed and new course without consent conviction See, granted. Gipson, supra. United States v.
PART III DEATH PENALTY ON A A WHO HAS IMPOSED THE JUDGE SIT THAT DEFENDANT’S DEFENDANT SHOULD NOT ON RELIEF. APPLICATION FOR POST-CONVICTION general its blandly opinion in Part II of majority decides judge judge or trial require sentencing that the policy considerations general As a post-conviction relief. preside petition also over a for However, holding. holding such a should agree this proposition, has been sentenced to never in a case where the defendant apply Further, in the for allegations petition made death. because sentencing have removed relief, judge should post-conviction himself from the case. imposed penalty, death judge already sentencing has
Where
preside over
judge
same
should
my
that this
it offends
sensibilities
especially
This is
for
relief.
petition
post-conviction
defendant’s
conviction,
so,
validity
attacks the
petition
only
where
the conduct of the
validity
the sentence and
also attacks the
but
give
this court
How can
judge
imposing
in
the sentence.
sentencing
when,
judge
acting
on the the
any credence to the decisions of the
relief,
petition
post-conviction
simply adopted
for
he has
verbatim the
(See
findings
proposed by the State of Montana.
and conclusions
dissent.) If
relief is to have mean-
Appendix
post-conviction
Ato this
case,
due
must
ing,
especially
penalty
process
a death
law
carefully
each
the issues
require
judge
that the
consider
raised
say,
miserably in
petitioner.
Needless to
he failed
this case.
allegations
petition
post-con-
Additional
Coleman makes
his
directly
indirectly attacking
viction relief
the fairness of the
sentencing judge,
required
judge preside
also
that a different
over
attempt
get justice
system.
final
Coleman’s
within
state court
Furthermore,
stated in
that he
petition
his
would have to
sentencing
call the
judge as a witness to obtain evidence ofhis claims.
allegations required, especially
penalty case,
These
in a death
sentencing judge
judge
preside
hearing.
call in another
over the
sentencing judge,
Issue C claims that
without notice to
Coleman,
started,
amended the information
the trial
before
legal authority
without
alleges
to do so. He
anwas
amendment
it,
of substance because without
penalty
death
could not have
triggered
aggravated
been
in the event ofa conviction for
kidnapping.
The sentencing judge added the words to the
“resulting
information
in the
Peggy
death of
Lee Harstad”. It cannot be doubted that this
*43
jury finding triggered
application
penalty,
the
of the death
for the
statutes then mandated the
penalty
death
in the event of such a
See,
I,
determination.
Coleman
To the judge establish Coleman wanted the testify. 299], 1000, I II [185 Coleman Mont. 605 P.2d dissented to this in validating judge’s court’s decision effect the amendment of the (I authority permitting judge information. know of no the to become by changing amendment, an charge.) advocate the This which man penalty conviction, dated the death in begin the event of a was the ning by of the orchestration of the the trial court proceedings which eventually being led to Coleman sentenced to death. Y the judge hang
Issue claims that made his decision to Coleman judge sentencing hearing. alleges before the even held the Coleman fact that sentencing judge hearing undeniable arrived at findings already with his conclusions and death sentence prepared. 299], [185
I in II procedure dissented to this Coleman Mont. 605 P.2d and concluded that it was a blatant denial of due themselves, I process Although speak oflaw. believe that facts testimony Y alleges Coleman in Issue that he is entitled to have from he decided to sentencing judge impose himself as to whether penalty sentencing hearing. death before he even held the testimony, though judge is entitled to that even would never admit event, prejudged any that he had the case. In Coleman would be judge why prepared entitled to ask the he had his sentence of death in in hearing, prepared advance of the and whether he also had findings impose that did not advance and conclusions and sentence penalty. the death BB sentencing judge
Issue
claims that the
failed to consider that
kind. Coleman
previous
Coleman had no
criminal record
testimony
court
determine
alleged
sentencing
he needed the
why
negative
he had never considered the
criminal record. The
sentencing
subject my
used
court have been the
semantics
299],
1000, 1002-51,
II
[185
dissent in Coleman
Mont.
again
part
my
elaborate on this issue
VIII of
dissent.
sentencing judge,
ruling
DD
that the
that Coleman
Issue
claims
crimes
day as the
burglarized
and Nank
a home earlier on the same
here,
solely
testimony
relied
on the uncorroborated trial
involved
II,
sentencing
had no
Nank. In Coleman
I concluded that the
court
right
ruling
testimony,
and I further
to make a
based
Nank’s
ruling
denying
Coleman full credit for
dissented to the use of that
If
having
background.
criminal
Issue KK seems claim sentencing judge that the dif- applied ferent standards of proof mitigating than he did to ag- factors Although gravating clear, factors. the claim is not at all assume that his claim that is the statute forth setting aggravating factors has all, no of proof while, hand, standard at on the other the statute setting the mitigating requires forth factors that these factors be “sufficiently as leniency findings substantial to call for ...” The are silent proof applied conclusions standards of aggravat- ing factors, therefore, and mitigating factors Coleman claims he is entitled to have sentencing testify court as to the standards it used in making findings. these sentencing Because the did court state the applied, again standards it is clear that the only source of what applied standards were testimony must come as from the sentencing judge.
Issue 00 seems similar to be to Issue KK. Coleman claims he is entitled to know precisely what standard the sentencing judge used in finding aggravating existence factors and the nonexistence of mitigating factors. He also alleges under this contention that the sentencing may “evidence, court have sentencing relied for state- ments, testimony, comments, opinions, telephone letters or from calls persons, presented other and not at hearing by attended Again, only person knowledge Coleman.” would who have sentencing judge. If any allegations one these raised Coleman is not sufficient judge itself to have another preside petition over Coleman’s post-conviction relief, certainly the force of all of them combined is himself, judge undeniable cause for the to have removed *45 refusal, The judicial his for this court to order his removal. event of look system having judge is somehow demeaned another take a case, fully at I am aware of the inherent back- though the even important If it scratching proclivities of the trial bench. was so petition judge preside post-conviction the over the for sentencing issues, the I familiarity his the case and with relief because of the implicitly adoption then to condones his of fail see how this court — hook, line fact of law proposed findings State’s of and conclusions and sinker. testimony addition, allegations In the Coleman’s made — imperative only the was the source of
sentencing judge judge for claim. his But the evidence needed Coleman to establish because case, judge judge’s remove himself from the the the refusal to obtaining effectively prevented from evidence on these Coleman issues. raised, the
By writing opinion so as not to disclose issues fair majority appellate has denied Coleman the full and review also he is which entitled. PART IV THE THE HAS ERRED IN PERMITTING MAJORITY PENALTY APPLY DEATH STATUTES SENTENCING COURT TO OF AFTER THE DATE TO COLEMAN WHICH WERE ENACTED THE CRIMES I, sentencing again sen- our in Coleman court
After decision retroactively death, applied this time court tenced Coleman to but of the crimes. enacted after date penalty Montana death statutes II, of these death application In Coleman claimed that Coleman post ofthe United States penalty the ex facto clauses statutes violated argued He further that this retroactive Constitutions. Montana designed statutes application of violated certain Montana statutes statutory provisions. especially prohibit application retroactive Coleman, majority stretched the law holding against I dissented on both 1023-1026. breaking point. had sentencing court and this court grounds and concluded Constitutions, as well as and Montana the United States violated 1000, 1023-1026. statutes. 605 P.2d existing Montana and, course, Coleman AA, again Z raise these issues Issues In the sentencing this court. court and before again lost before on this IV, against Coleman in Part which decided ruling omnibus majority has declared pen, one stroke ofthe and 13 other issues my once in judicata. I have stated views this issue to be res II, them here. I would hold that we have repeat and need not and our constitution in the United States Constitution own violated statutes, violating retroactively penalty the death as well as applying very By properly kind unfairness. designed prevent statutes Sanders, supra, set out in United States applying standards grant requested. the relief again question would review this PART V THE SENTENCING STATUTES UNCONSTITUTIONALLY REQUIRE THE TO PERSUADE THE DEFENDANT *46 BE THAT HIS LIFE SHOULD SPARED. SENTENCING COURT 00, 46-18-305, MCA, By Coleman states that unconstitu- Issue § tionally persuasion prove mitigating the to him to shifts burden sentencing judge and the that his life should be persuade facts spared. part provides: The relevant of 46-18-305 § a death if it finds one or impose
“... the court... shall sentence of aggravating more of the circumstances and finds that there are no mitigating sufficiently leniency.” circumstances substantial to call for -undoubtedly places
This statute the burden on a defendant to persuade sentencing judge spared. the that his life should be adopting proposed findings the State’s and conclusions on verbatim totally the point, sentencing this the court missed issue raised. The court ruled: sentencing capital provides
“00. Montana’s scheme for the con circumstances, mitigating provision sideration of which benefits only capital presented sentencing, defendants. The issue involves not guilt innocence, petitioner’s process and due claims are without denied, 299], 1057, [185 merit. See Coleman II Mont. 605 P.2d at cert. 2952, Watson, 441,] [64 831] [120 L.Ed.2d and State v. Ariz. S.Ct. denied, 1253, 1258 (1978), 924, 1254, [99 cert. 440 U.S. S.Ct. 478].” 59 L.Ed.2d majority, ruling in Part V of this and disposed
The its omnibus ground they judicata vague. 12 other on the that are res issues Issue 00 is neither. that ruled on this issue at
Contrary ruling to the trial court’s we 1057, II, contrary implication 605 P.2d at in Coleman Rather, here, majority the decision we did not rule on issue. MCA, 46-18-305, does not limit held in Coleman II that § considering any sentencing aspect court “from of the defendant’s mitigating ruling says record or character as a factor.” This nothing shifting persuasion. about of the burden of vague claim cannot be where Coleman asserts that 46-18-305 § unconstitutionally persuasion shifts the burden of to him to sentencing This spared. convince court his life should be unmistakably persuasion; section shifts the burden of question is whether it is constitutional to do so. Both the trial court and this have failed to rule on court this issue. Lockett v. Ohio (1978), question
This was raised 438 U.S. 586, 2954, 973, Supreme 98 S.Ct. 57 L.Ed.2d but Court grounds specifically vacated the death sentence on other and so 609, n.16, declined to rule on this issue. 438 U.S. 98 S.Ct. n.16, 57 L.Ed.2d n. 16. would hold that the Montana offense, capital statute In a fairness is unconstitutional. basic sentencing process requires in the the state have the bur- factors, aggravating and the proving den of the existence of Further, mitigating nonexistence factors. the State should sentencing have the burden to convince the court defendant’s life should be taken. trials, innocent, and presumed
In all criminal the defendant beyond fact prove the State must each essential reasonable Winship doubt. In Re 397 U.S. 90 S.Ct. permitted evaporate rule L.Ed.2d 368. This should may sentencing stages process where the results of that prove result in a death sentence unless the defendant can can also convince mitigating substantial factors *47 hearing, sentencing spare sentencing his life. At a to court to state, the presumption the must be that keep the burden on the and the punishment defendant is entitled to a less than death necessary imposition to the of prove State must all those factors here, only for not Those burdens were not met penalty. the death life the on Coleman that his impose did the statute burden meaningful opportunity also had no spared, should be Coleman sentencing court came to the present to his case because the death sentence imposing an order the sentencing hearing fact, can hearing. Given this how ready filed at the end of the to be already decided sentencing the court had not anyone conclude that impose penalty? to the death
487
PART VI
DEATH
RIGHT TO JURY TRIAL ON
PENALTY ASPECT OF CRIME
a
trial
right
jury
Issues HH and PP claim that Coleman has
to a
HH,
penalty
on
death
of this
In Issue
he
that
aspects
the
case.
claims
jury
right
should
final
whether he
have the
to determine
should
By
PP,
jury
right
live
die.
claims
should
or
Issue
he
that the
have the
and
presence
aggravating
to determine the
absence of both
factors
mitigating
only
before,
factors. He has raised
one of these issues
Issue
PP,
II,
and this court in
him.
against
ruled
By adopting findings and prepared verbatim and conclusions State, court, course, presented against the trial of decided him. (See order.) sentencing and PP Appendix, judge’s part Issues HH issues, ruling disposing today IV of its omnibus of 27 this court rules him, against discussing jury without as to ever the issue whether the should be the sentencing authority capital ultimate a case.
Contrary
implied assumption
majority opinion,
Ohio,
issue is not
Lockett
supra,
foreclosed. In
v.
Lockett claims that
right
she had a
to a
trial
all
jury
jury
issues and that a
should
decide the
ultimate issue
life or
The United
Supreme
death.
States
Court, however,
grounds,
vacated
death sentence on other
expressly
judgment
586,
reserved
on this
438 U.S.
S.Ct.
issue.
2954,
If death penalty only can be called can way it standards, remain so within concepts contemporary community require jury final, make fateful decision. In Humphrey 504, Cady 509, 1048, 394, v. 405 U.S. 92 S.Ct. 31 L.Ed.2d Supreme recognized United States in determining Court facts being jury involved in capital sentencing “the serves the critical of introducing process lay judgment, reflecting function into the a generally community.” Later, Gregg values held in Georgia, 2909, 49 recognized U.S. 96 S.Ct. L.Ed.2d need the court juries capital sentencing process significant to involve the in the as “a contemporary index S.Ct. reliable values.” 428 U.S. earlier, eight years 49 L.Ed.2d And the Supreme 859. Court maintain capital stated that in a serves “to involvement case *48 488 — system
link contemporary penalty between values and the a link hardly determination punishment without the could reflect which ‘the evolving decency progress that mark the of a standards ” society.’ (1968), 510, 520, U.S. maturing Witherspoon v. Illinois n.15, n. S.Ct. 20 L.Ed.2d n.15. II, briefly my why
In my dissent Coleman I set out views capital case, sentencing process a should be involved in the in a and should final and why jury make a fateful decision whether My live P.2d at experience defendant should or die. 605 1045. since then, and dealing capital with the cases that have been are now review, for has me even more the before this court convinced this view. correctness of there,
In all concerning addition to what stated that I have stated procedural irregularities the place and errors that took before the trial, trial, (during sentencing process) and during after trial the application final blow to in his should be considered. The Coleman post-conviction adopted for relief came when trial court verbatim findings presented by the State of proposed and conclusions Coleman, Montana, denying any affirming all relief to and that trial court had done before. irregularities taking place during all the
Combine errors or case, many appellate history of this and I do not believe too courts granted good could state in conscience that Coleman has been due attack. Add that process of law sufficient to sustain constitutional case, and dealing penalty that are a death I don’t fact we good think state conscience any appellate court could effect, refusing granted process has been due of law. discuss raised Coleman in identify or even the substantive issues relief, here petition post-conviction majority his has done rubber-stamp findings than and conclusions of nothing more straight findings trial and those and conclusions came from court typewriter. State of Montana’s
PART VII DEATH BY AS CONSTITUTING CRUEL HANGING
AND UNUSUAL PUNISHMENT and by hanging constitutes cruel Issue TT claims that death II, Const., Art. and § under 1972 Mont. punishment unusual to the United States and amendments Eighth under the Fourteenth only permit death three states points Constitution. Coleman out it (Montana, has been Washington) by hanging Delaware European in all jurisdictions American rejected in all other claim, (I filed this that since Coleman note here jurisdictions. by hanging death has held that Supreme Court Washington State Frampton State v. punishment. and unusual constitutes cruel *49 922.) executed alleges persons that 469, 627 P.2d He 95 Wash.2d pain by strangulation, and suffer extreme slowly, usually hanging die of life. He further extinguishment in the of that inherent excess death, slow, tortuous form of the reasons for this alleges that one of longer exist in the United States hangmen no competent is that ad- elsewhere, hanging competently cannot be and therefore ministered. majority this issue reference to the disposed
The trial court
of
1000, 1059,
II,
299],
[185 Mont.
where
opinion in Coleman
have
legislature
and stated: “We
majority simply
deferred
law,
say
of the
nor can we
power
change
provisions
no
to
these settled
majority
constitutionally cruel or unusual.” The
hanging
is
ruling
part
VI
simply
has
denied this claim its omnibus
opinion
disposing of this and 6 other claims.
opinion,
of the
law,
power
change
that it has no
to
but
The court states
separation
beginning
fact
that courts have from the
simple
is
of law.
changing
yes,
provisions
even settled
powers
of
been
law —
change
majority
is
that the
does not want
simply
The real reason
he
entitled to
in this case. But Coleman claims here that
law
by hanging is in fact
evidentiary hearing
an
to establish that death
rationally decided
question
cruel and unusual. This
cannot be
expert evidence that is now
considering
without first
the scientific or
so,
quoted
did
some
Washington Supreme
The
Court
available.
testimony
barbarity
hanging
as to the
of
graphic
and statements
P.2d 934 to 936.
inflicting capital punishment.
the method of
stated that the
Supreme
repeatedly
The United States
Court has
—
against
punish-
cruel or unusual
Eighth
prohibition
Amendment
—
evolving
meaning
its
from the
standards
ment
“must draw
maturing society.” Trop
a
v. Dulles
decency
progress
that mark the
Using
standard
(1958),
prescribed method carrying penalty, out the death or the fact that legislature change has refused to execution, method of does legislation not enshrine the invincibility on throne of from constitu- tional attack. grant evidentiary would Coleman an hearing on this issue.
Perhaps revealing all, the evidence perhaps would be even to legislature. members of the here, II, addition to what I stated parts have III and VIII of this
dissent should be considered. The combination of these factors loudly screams for a constitutional requirement only a unani- mous should permitted to make the fateful decision oflife and My death. experience judiciary has been that the of this state is incapable fairly rationally administering penalty a death law. Only by interposing jury between the defendant and the judiciary can there be only assurance of decisions arrived at after fair consideration of all the facts.
PART VIII
*50
DENIAL OF MEANINGFUL APPELLATE REVIEW
QQ alleges
Issue
that in our first review of the death sentence
(Coleman II)
meaningful
we denied him
appellate review. In
II,
reviewing
Coleman
after
several factors
majority
which the
had
either
I
ignored,
virtually
overlooked or
stated that “...it is
impossible
to rationally
fairly
and
administer and enforce statutory
scheme of
capital punishment.”
this,
Similar views were in concurring stated Justice Marshall Ohio, opinion in the case of Lockett v. supra, expressed where he disgust way with the the trial and appellate courts courts of the administering capital various states were their punishment statutes in an apparent attempt to meet minimum constitutional standards. He stated: opinions
“The announcing judgment Gregg of the court in v. 188-198, Georgia, [96 2932-2936] 428 U.S. at S.Ct. at of (opinion Stewart, Texas, Stevens, J.J.), 262, Powell and Jurek v. 428 U.S. (1976) 271-276, 96 2950, 2956-58, 49 2960, [96 S.Ct. L.Ed.2d 929 S.Ct. Stewart, Powell, (opinion Stevens, J.), 913] 49 L.Ed.2d and J. and
491 (1976). Stewart, Florida, 259, 242, (opinion 260 428 U.S. v. Proffitt constitutionality Stevens, J.J.), death Powell, upheld and guidance for system providing belief that a sufficient penalty, in the review adequate appellate would sentencing decision maker and imposi- in the ‘rationality’, ‘consistency’, ‘proportionality’ assure 203, 96 Georgia, supra, v. at S.Ct. Gregg tion death sentence. Florida, at at Jurek v. supra at S.Ct. 2939. Proffitt That court 276, 96 at 2968. an Ohio trial could supra at S.Ct. Texas facts, under these and that impose penalty petitioner the death on it, strong cast Supreme the Ohio Court on review could sustain doubt systems premise appellate that review state is plurality’s imposition and unfair of this ir- wrongful sufficient to avoid penalty.” concurring at 98 S.Ct. at revocable U.S. opinion. relief, how petition post-conviction
In
Coleman outlined
this
his
mandatory
the statutes
requiring
court had failed
adhere to
contention,
In
appellate
disposing
simply
review.
of this
the trial court
“QQ.
adopted
proposed by
the one sentence
the State:
conclusion
petitioner
Court
provided
Supreme
review
the Montana
299],
II
carefully
applied
[185
outlined
Coleman
Mont.
II,
In
If this court has never before decided the issue of whether we II, denied Coleman review in I fail meaningful appellate addition, see issue can judicata. how this be res fail to see that QQ vague cites a specific Issue where Coleman statute absolutely reviewing court has adhere to in failed to death sentence. QQ, questions concerning
In Issue Coleman raises two our failure *51 has, however, give meaningful to appellate him review. He review, concerning issues our throughout petition, his raised other portion these in this appropriate I feel it is to consider issues QQ. my in dissent. I will first discuss the issues raised Issue claims, so, correctly court has first that this never Coleman mandatory require- implement promulgated procedural rules to dispropor- is determining a sentence of death ments for whether Second, claims, tionate to the sentence in similar cases. imposed he so, correctly contemplated by our review statute and man- by Gregg Georgia dated 428 U.S. 96 S.Ct. L.Ed.2d has failed to consider other cases where a defendant has aggravating kidnapping. been convicted of deliberate homicide or specifically required grant proportional This court is automatic sentence, promulgate review to all death and to rules under which response the review is conducted. In to decisions of the United States Court, 46-18-310, MCA, Supreme legislature enacted and sub- § specifically Supreme section 3 states that the Montana Court shall determine:
“Whether the disproportionate sentence of death excessive or cases, the penalty imposed considering in similar both the crime and the defendant. The court shall include its decision reference to those similar cases it took into consideration.” review, 46-18-308, MCA,
To facilitate this that the part states § by automatic review mandated statute “... shall be heard in accord- by ance with promulgated Supreme (Emphasis rules Court.” added.) rightly claims that this never promulgated court has
rules to method and under death sentence provide procedure which claims, are He farther and this cannot proportionality. reviewed for denied, promulgate that he has asked this court to the rules. The date, simple yet promul- fact is that to this this court has not even How, then, gated get those rules. is Coleman to the review to which imposition he is entitled? can court off the How this sanction statutory penalty comply death when it has failed to first with the requirement adopt setting that we rules forth the method which Obviously,a federal court will have proportional review is conducted? question. to answer this second, claim,
A and even more serious because it involves the court, actual conducted is that we failed proportional review by Gregg comply proportional review mandated v. Geor- mandatory review the state’s gia, supra. Gregg requires that on highest court, that the court consider “whether the sentence appellate disproportionate penalty imposed of death is excessive or cases, considering the crime and the defendant.” This similar both to and language system means that our of review must allow access in this state reasonably a consideration of all recent cases where ag- has convicted of either deliberate homicide defendant been gravated kidnapping. *52 cases consider the nature of these and duty
Our is to review each persons ofthe characteristics involved the individual crime those situations compare must then committed the crimes. We who characteristics personal committed here and with with the crimes wholly provide has failed to here. This court of the involved person I fail by Gregg, as and therefore to see proportional review mandated penalty. imposition of the death how can sanction the this court QQ alone, hold, Coleman is entitled I therefore that on Issue would — proportional review after this again court for come before by required court the rules statute. promulgated has by Coleman I our of other issues raised next consider review conclusions, findings and and our concerning sentencing court’s overlooking cavalierly either By failure these to review issues. identification, issues discussion or even we disposing of the without I meaningful appellate have denied review to Coleman. further penalty death repeat statutorily required are review all that we full statutory compliance see that there has in the sentences to been all required We further to review sentencing process. are conclusions, findings if issue sentencing court’s even no concern- 46-18-310, ing by raised defendant. MCA. them has been Section DD, alleges In BB and Issue failure of the sentenc- Issue Coleman that ing give court and this court consideration to the fact he had — background charged no he had not even or arrested criminal been sentencing court for a Issue BB claims that should misdemeanor. history significant have a matter of that Coleman had no ruled as law sentencing DD claims of criminal conduct. Issue court that, here, day charged improperly found on the same the offenses Montana, burglarized Roundup, had a house in Coleman and Nank really designation entitled to therefore Coleman was criminal further having significant conduct. Coleman claims no burglary finding on Nank’s that the trial court based this uncor- finding on testimony. It error to base this Nank’s roborated trial also testimony. And it was error because Coleman uncorroborated sentencing hearing; opportunity had no to cross-examine Nark at the nor to offer rebuttal evidence at a opportunity did he have This first while the trial sentencing hearing. finding was revealed reading the court was death sentence. claims, responded majority here has these substantial
Despite
sentencing
II
I
court’s
only in silence. dissented
its
which it made
decisions.
findings and to
methods
sentencing
fact is that the
court
undeniable
P.2d 1035-1036.
testimony
used Nank’s trial
as the basis to find that Coleman had
4, 1974,
burglary
July
committed a
and therefore that Coleman
history
having
significant
was not entitled to full credit for
no
fact,
findings
criminal conduct.
concluded that
its
and con-
clusions,
sentencing
breaking
court had stretched the law to the
point
impose
penalty.
in order to
the death
This
to
the death
is
by
sentencing
illustrated
the
court’s failure to consider Coleman’s
circumstances,
by Gregg
particularized
requirement
mandated
v.
46-18-302;
Georgia, supra,
required
and also
statute. Section
II,
findings
I
my
emphasized
in Coleman
that the
MCA.
dissent
sentence,
the
the death
are
and conclusions used as
foundation for
background.
particularized
barren of
reference to Coleman’s
court,
we,
appellate
Issue sentencing hearing sentencing when the court came to end ready filing and for at the judgment already prepared of death 46-18-310(1), requires that this court hearing. MCA Section “imposed if it was under any death sentences to determine review arbitrary Proper factor.” prejudice, or other passion, influence of death court set aside the requires this statute that this application of sentencing in the ugly inherent implication because of penalty with his death sentencing hearing armed judge coming to the judgment. 299], [185 in II judge’s conduct Coleman Mont. dissented to the my again. beyond I do It is P.2d 1022 to so recogniz- uphold this court can this conduct. But
comprehension that issue, of all to this the combination ing that this court is insensitive dissent, penalty my require should death the factors set forth 46-18-302, violating statutory guidelines § set to be aside supra. appellate review give meaningful
Our failure to Coleman today our undo the only compounded by II failure to last to obtain injustice of that decision. This is Coleman’s chance system. attempted But this court has not even review within the state fairly Mandatory appellate review of consider issues raised. statute, sentences, required by Gregg Georgia, death failed in this abysmally has case. Ohio, supra, again
The words of Justice Marshall Lockett v. are meaningful of our review appropriate to end discussion denial Coleman, they exactly each of express happened what has death that has court: these cases come before this impose That an trial could the death penalty "... Ohio court facts, Supreme Court on petitioner under these the Ohio it, strong plurality’s premise could cast doubt on the review sustain *54 appellate systems review in state is sufficient to avoid the (438 U.S. wrongful imposition penalty.” and unfair of this irrevocable 2973, concurring opinion.) at 98 S.Ct. at Ohio, for the and Justice
Substitute the word Montana word a glove fit Montana situation like fits Marshall’s comments today The court has Coleman opinion by hand. written this denied his and process questions arising due law both on from conviction death application penalty. on
CONCLUSION salutary finally It has freed majority aspect. The one opinion has permits and him to yoke system from the of the state court help A cannot but be his claims in federal court. federal court pursue raised important questions that Coleman has receptive more to the summary disposi- turned wholesale and court has down but federal court with this case will leave a tion. cannot conceive that abiding justice was done. conviction
APPENDIX EXHIBIT A CONCLUSIONS, COURT’S MEMORANDUM & ORDER The court having considered briefs and proposed findings and petitioner respondent, conclusions of and adopts findings respondent, conclusions of as follows:
PROCEDURAL BACKGROUND 6, 1980, Following the October dissolution of Justice Marshall’s stay date, of petitioner’s respondent execution moved this court to set a new execution date for defendant. This court then notified the parties 24,1980. that a new date of execution would be set on October On hearing, petitioner the date set for this petition post- filed a for raising separate addition, conviction relief claims for relief. petitioner moving submitted a motion the court to “center an order recusing presiding judge itself as the in this cause.” day,
On the same prior recuse, to its consideration of the motion to granted this court by respondent motion submitted and ordered (10) petitioner petition days to submit an amended within ten “raising all grounds constitutional for relief... of knowledge which he has at allege this time and to so in his petition.” amended The motion to recuse was taken under advisement this court pending the sub- response by mission of a respondent reply by petitioner. and a The court denied the motion to recuse on November 1980. petition post-conviction Petitioner filed his amended for relief on 12, 1980, raising separate December this time claims for relief. parties stipulation The thereafter entered a to the respon- effect that dent petitioner’s petition would file its motion to dismiss amended on answering December 1980. Petitioner would file his brief 5, 1981, January respondent by January 12, before reply would Finally, 1981. a hearing on the motion to dismiss was scheduled for January 15, 1981. regularly hearing motion to dismiss came on on the 15th
day January, petitioner, Dewey Eugene Coleman, ap- counsel, Moses, pearing person through his Charles F. “Timer” Montana, appearing through Maynard, and the State of John H. General, Attorney Forsythe, County Assistant and John S. Rosebud Attorney, whereupon argument presented oral court. *55 respondent proposed findings Petitioner and directed to submit were
497
1, 1981,
by February
at which time
to the court
and conclusions
duly
having
The court
considered
deemed submitted.
matter would be
it,
matters submitted to
THEREFORE, IT IS ORDERED follows:
NOW
PETITION FOR
petitioner’s
TO DISMISS
Respondent’s MOTION
is,
be,
hereby
granted.
RELIEF should
POST-CONVICTION
CONCLUSIONS
THE
BECAUSE
I. THE MOTION TO DISMISS IS GRANTED
46,
PROCEDURES OF TITLE
CHAPTER
AUTOMATIC REVIEW
THE
18,
ARE
3,
PART OF THE MONTANA CODE ANNOTATED
PROCEDURES AFFORDED PERSONS
EXCLUSIVE REVIEW
DEATH IN MONTANA.
UNDER SENTENCE OF
especially
in
those
necessity
finality
proceedings,
The
criminal
automatic and
involving
penalty, coupled
death
penalty
provided
cases
comprehensive
procedures
review
in death
statutes,
legislature did not
in Montana
establish that the Montana
post-conviction procedure
intend that
act afford defendants
18,
46,
appeal”.
Chapter
Title
capital
convicted of
offenses “second
automatic,
3, MCA, clearly
comprehensive, and
part
contemplates an
adjudication
presented
penalty
in death
cases.
issues
final
recognized
case
Supreme
petitioner’s
Montana
Court
this fact in
mark the end
completion
when it stated that “...
of this review will
299],
Coleman, [185
...”
Mont.
upon
of state action
this cause
State
denied,
446
P.2d
1006
cert.
U.S.
64 L.Ed.2d
605
(1980).
831,
To allow to seek relief contemplated by result provide petitioner appeals, with two devise Supreme Court. States are free to legislature or the Montana Illinois, Carter v. systems their own of review criminal cases. (1946). 216, 218, Repetitious L.Ed. 172 U.S. 67 S.Ct. constitutionally penalty required cases are not appeals death in the accomplish public little than to frustrate confidence more criminal justice system. entire TO FURTHER GRANTED AS
II. THE MOTION TO DISMISS IS ARE BARRED BECAUSE THEY 27 OF PETITIONER’S CLAIMS BYRES JUDICATA *56 following 27 issues previously have been considered and
decided Supreme Montana petitioner Court and alleged has no new facts or law with respect to these might issues that affect the result prior reached in his appeals:
F,G, H, I, J, L, M, N, P, R, S, T, V, W, Y, Z, AA, DD, GG, HH, II, JJ, KK, LL, MM, NN, and PP.
Each of these claims has been
considered
Supreme
Montana
Coleman,
Court in State
1,]
[177
v.
(1978),
Mont.
G. Petitioner’s claim regarding the admission into evidence of
State’s
rejected
I,
exhibit No. 20 was
in Coleman
H. Petitioner’s claim involving
challenge
his
competency
Nanks’
I,
as a witness was addressed in Coleman
I.
regarding
Petitioner’s claim
testimony
Nank’s
concerning his
conversations with law
rejected
enforcement
officials was
in
I,
Coleman
J. Petitioner’s claim regarding restricted cross-examination was
rejected
I,
in Coleman
L. Petitioner’s
concerning
claim
the admission into evidence of
rejected
I,
Exhibit No. 60 was
in Coleman
M.
in
Petitioner’s claim connection with his attempted cross examina-
Hippard
I,
tion of witness
rejected
was
in Coleman
P. Petitioner’s contention
respect
to Instruction No. 22 was ruled
I,
on in
again
Coleman
R. Petitioner’s offered
I,
at 750.
in Coleman 579 P.2d
properly refused
been
rejected by
involving Instruction No. was
S.
claim
Petitioner’s
I,
at
P.2d
750.
Supreme Court Coleman
Montana
claim that his
35Ashouldhave
offered Instruction No.
T. Petitioner’s
I, 579
at
P.2d
750-1.
given
rejected
Coleman
been
was considered
regarding the denial of his motion for new trial
V. Petitioner’s claim
I,
rejected in
grounds
newly
discovered evidence was
W. Petitioner’s ex facto petitioner at the committed the penalty constitutional death statute time death considered penalty crime which he received the 299], at [185 Coleman II Mont. 1013-14. argument opportunity to regarding present
Y. Petitioner’s claim
his
*57
rejected
I was
concerning
following
his sentence
remand after Coleman
299],
II
by
[185
in
Mont.
the court for the reasons stated
Coleman
Z. Petitioner’s claim “retroactive” [185 in II penalty death amendments was considered Coleman Mont. 299], at 605 P.2d 1012.
AA. his sentence violates constitutional Petitioner’s claim that rejected II provision against [185 ex fact in Coleman Mont. post laws was denied, 970, 299], 1015, 2952, 446 605 P.2d at cert. U.S. 100 S.Ct. 64 L.Ed.2d 831. finding he regarding
DD.
court’s
Petitioner’s claim
district
burglary
day
had
same
he committed these other
participated in a
299],
[185
II
Mont.
GG. Petitioner’s claim rejected I, 579 741. in Coleman P.2d at in the sen- respect jury participation
HH. claim with Petitioner’s rejected tencing Supreme Montana Court procedure was 299], P.2d at 1017. [185 Coleman II Mont. 605 statutes in argument penalty II. Petitioner’s that Montana’s death mandatory rejected [185 in Coleman II penalty effect death was impose 299], 1016. Mont. 605 P.2d at circumstan- mitigating
JJ. for the consideration of Montana’s scheme [185 II pass in Coleman Mont. ces was found constitutional muster 299], at 605 P.2d 1016-17.
500 regarding
KK. Petitioner’s
further
contention
“standards
in Coleman II
299],
proof’
rejected
[185
was
Mont.
MM.
claim that he cannot
con-
jeopardy
Petitioner’s double
II
rejected.
299],
[185
charges
victed on both
Mont.
NN. Petitioner’s claim
sentence review
the Sentence
Supreme
rejected by
Review
of the Montana
Court has been
Division
Supreme
Supreme
the Montana
Court and the United States
Corut.
Montana,
Supreme
Coleman v. Sentence Review Division
Court
(1980).
denied,
893, 101
255,
rt.
U.S.
S.Ct.
III. THE MOTION TO DISMISS IS FURTHER GRANTED BECAUSE, THEY CLAIMS WHILE 13 OF PETITIONER’S VAGUE, ALLEGATIONS, THEY ARE TOO INCLUDE VAGUE NEW BY CLAIMS, OR ARE UNSUPPORTED TO STATE NEW THEREFORE BARRED BYRES JUDICATA AUTHORITY AND previously been considered following The 13 issues have by Supreme decided the Montana Court. U, CC, EE, FF, 00, QQ, RR, and XX.
B, E, K, Q, X,
501 Supreme of the Montana validity determination prior of the by question is not called into respect to these issues Court with allegations. additional petitioner’s in plea-bargain- alleging discrimination
B. Petitioner’s claim by Supreme rejected race was Montana on the of ing process basis I, P.2d at 744-5. Court in Coleman 579 recovery of was ad- regarding rope
E. Petitioner’s claim I, at in Supreme Court Coleman dressed Montana 744. testimony agent regarding the an F.B.I.
K. Petitioner’s claim
I,
at 749.
addressed in Coleman 579 P.2d
and of Sheriff Makin was
Q.
Supreme
the Montana
Instruction No. 26 was considered
[185
in
II
I,
again
P.2d at
Coleman
Court in Coleman
579
denied,
299],
1054-6,
100 S.Ct.
at
cert.
U.S.
Mont.
P.2d
2952,
U. Petitioner’s claim
verdict
was
erroneously given
considered
gravated kidnapping, was
Moreover,
I,
convicted
X. Petitioner’s opinion on the vague case in Coleman I is meritless basis alleged part this claim. specific issued in that No error is case. district consideration regarding CC. Petitioner’s claim court’s II [185 reviewed mitigating general factors was Coleman 299], 605 at 1019-20. Mont. P.2d he ad- prejudiced by properly
EE. Petitioner’s claim that [185 a relief. II mitted evidence does not state claim for Moreover, 299], provisions 1020. of the 1977 Mont. P.2d at found to capital sentencing scheme were amendments Montana’s 46-18-302, entirety I. petitioner in their in Coleman Section apply for MCA, admitted at trial be considered requires that evidence sentencing purposes. requires finding of that the a
FF. Petitioner’s claim constitution imposed is may a sentence specific capital intent to kill before an con- Moreover, this such intent when insupportable. court found Finding at of Fact sidering penalty of the death appropriateness 3(b). No. the con- provides scheme capital sentencing
00. Montana’s circumstances, benefits provision which mitigating sideration *59 502
capital presented only sentencing, defendants. The issue involves guilt innocence, petitioner’s process due claims are without II,. denied, 1057, 970,
merit. See Coleman
605 P.2d at
cert.
446 U.S.
2952,
Watson,
_Ariz._,
100 S.Ct.
QQ.
provided petitioner by
The review
Supreme
Montana
carefully
Court
applied
[185
outlined and
in Coleman II
Mont.
299],
RR. The penalty petitioner’s the death case has presented approved by Supreme been to and the Montana Court. That binding Spinkellink determination is on this court. As noted in (5th Cir.) 582, (1978), denied, Wainwright, v. 578 F.2d 607 cert. 440 980, 1548, 796, (1979), U.S. 99 S.Ct. 59 L.Ed.2d the arbitrariness and capriciousness conclusively condemned in Furman are from removed penalty proceeding a death if state properly adheres to its drawn penalty death statute. aggravating
XX. The
and mitigating circumstances enumerated
capital sentencing
Montana’s
scheme are similar
approved
to those
Supreme
pass
the United States
Court and
constitutional muster
153,
2909,
Gregg Georgia,
under
v.
428 U.S.
96 S.Ct.
IV.THE MOTION TO DISMISS IS FURTHER GRANTEDAS TO 7 OF THE THE PETITIONER’S CLAIMS BECAUSE NEW AUTHORITY CITED IS EITHER INAPPLICABLE TO OR PETITIONER’S CASE CLEARLYDISTINGUISHABLE FROM IT THE LEAVING CLAIMS BARRED BYRES JUDICATA. following allegations claims include new of fact or citation to authority: new
A, C, D, O, BB, TT, W. not, however, allegations cita-
The claims do include new or new authority, validity prior tions of which affect the ofthe determinations Supreme respect of the Montana Court with to those issues. trier of part petitioner A. As ofthis claim asserts that no rational had beyond petitioner fact could have found a reasonable doubt that bodily injury, Harstad, to inflict Lee restraining Peggy purpose, 61 L.Ed.2d 99 S.Ct. Virginia, 443 U.S. citing Jackson That establishing a standard of review. purposes by the in this case as evidenced has exceeded of review been standard *60 1, pertinent reads in Finding No. which court’s jury verdict and this part: by the victim upon the assault Coleman initiated
“In this area crashing against it strap the chin and motorcycle helmet swinging his yellow nylon rope placed the head. Then the defendant the victim’s strangle her. Then both attempted neck and the victim’s around and, slough down to a carried the victim defendant and Robert Nank rose out of the water her under the water. victim the defendant held under until and held her men went into the water briefly and then both expired.” she the infor- the court’s amendment of regarding claim
C. Petitioner’s
I,
recently
in Coleman
P.2d at 745-6. The
579
mation was considered
Cardwell,
(1980),
370,]
D. Petitioner’s claim
I,
Court in Coleman
recently
at 743. The
579 P.2d
Supreme
Montana
York,
573,
1371,
Payton
v. New
U.S.
100 S.Ct.
63
decided case of
445
Payton
given
(1980),
inapposite
because
has not been
L.Ed.2d 639
is
doctrine it
the new constitutional
retroactive effect. This is because
criminal trial
overcoming
aspect
at
an
establishes is not one aimed
thereby raising
truth-finding
its
function
substantially impairs
City
trials. V v.
past
accuracy
guilty
verdicts
questions as to
(1972).
York,
1951, 1952, 32
203, 204, 92
L.Ed.2d 659
New
S.Ct.
407 U.S.
misconduct
Moreover,
exclusionary
police
rule to deter
purpose
exclusionary
ofthe
post-appeal stage
application
is not served at the
Powell,
465,
Stone v.
U.S.
428
truth-finding process.
rule deflects
(1976).
492,
3037, 3051,
O. Petitioner’s
I,
cita
considered in Coleman
P.2d at 748. Petitioner’s
timony
579
was
Virginia, 443 U.S.
504 do establish a of review for corroborative evidence and standard are inapposite. therefore respect to
BB. Petitioner’s claim with the district court’s con- prior histoiy mitigating sideration of his criminal circumstance 299], at [185 was considered in II Mont. 1019-20. Jackson, Pilón, supra, and do not affect claim. Amendment Eighth hanging claim that is a cruel
TT. Petitioner’s
rejected
[185
method of execution was
in Coleman II
tortuous
299],
P.2d at
Establishing
Mont.
1058-9.
a method
execution is
Utah,
properly
legislature.
a function of
v.
99 U.S.
Wilkerson
(1879).
168-173,
at
134-5,
Gregg Georgia,
The final five They proceeding. have for the time in this are: been raised first YY, SS, UU, WW, ZZ. at this right present these issues time
Petitioner has waived his
appeal
People
conviction.
failing to raise them in the direct
of his
(1973);
Jenkins,
690,
v.
Ill.App.3d
v.
11
SS.
This
rarely
legitimate
that it
no
state interests.
claim
posed so
serves
Gregg
merit. See
v.
rejected
has
times and without
been
numerous
153,
2909, 2925,
173,
UU. Petitioner
whole,
as a
are read
But
the instructions
jury verdict.
when
imous
1052,
299],
at
[185
II
Mont.
they
under Coleman
must be
396,
141, 147, 94 S.Ct.
414 U.S.
Naughton,
v.
Cupp
fails. See
claim
(1973).
federal
addition,
reliance on the
petitioner’s
WW. Petitioner’s
unspecified proceeding were
Court because some
Supreme
46-18-309, MCA, recognizes the
Section
is without merit.
transcribed
sentencing
court and
the “record” certified
distinction between
reporter.
duty
It is the
of the
by the court
“transcript” prepared
in all
“transcript” to be submitted
portions
to select
appellant
46-20-302, MCA.
appeals.
criminal
Section
Eighth and Fourteenth Amend-
YY. Petitioner contends that his
discriminatory
alleged
rights
ment
have been violated because
and in the United States.
penalty
the death
in Montana
application of
are similar to
allegations
support
he makes in
of this contention
United States
contentions raised
supporting
those
similar
2726,
238,
Georgia,
in Furman v.
408 U.S.
92 S.Ct.
Supreme Court
2909,
(1972),
153, 96
Gregg Georgia,
ZZ. Petitioner has *62 by Section required or violations” as (any) alleged set forth violation matter of law. 46-21-104, MCA, therefore fails as a and his claim 18 day February, 1981. Dated this A. B. Martin
s/ Judge District