*1 MONTANA, STATE OF Respondent, v. DEWEY Plaintiff COLEMAN, Appellant. EUGENE Defendant No. 14448. Submitted 1979. Jan. Decided 1979. June Rehearing
On
Dec.
1979.
Mike Mike Asst. Greely, Atty. Atty. Helena, County Atty., Forsyth, Gen. S. (argued), Forsythe, John plaintiff respondent.
MR. SHEEHY delivered the of Court. opinion JUSTICE This matter comes before the Montana from Supreme Court, District, the District Sixteenth Rosebud County, Judicial under the automatic review of sections provisions 95-2206.12
306 R.C.M.1947, 95-2206.15, now 46-18-307 sections
through involving MCA. In convictions not through felony 46-18-310 is the function of this Court to imposition penalty, review the and determine if errors have been committed any record sentence, while it is an resulting illegal the imposition function of Division if legal the Sentence Review determine v. sentence in the circumstances. State McKenzie appropriate 280, 1205, 1229; (1978), 177 581 State v. Simtob Mont. P.2d 874; sections 46-18-901 Mont. P.2d However, has when the death been imposed, 905 MCA. Court, this nature of because has directed Legislature involved, functions. both Sec- undertake expeditiously MCA; 46-18-307, -308 Minutes State Senate Judiciary tions Committee, We that in McKenzie the recognize 1977. January was a review allowed conduct Review Division Sentence however, the defendant in McKenzie death penalty imposed, from those involved in this ap- under statutes different sentenced at 1227. Because the review conducted this P.2d peal. stands in recourse Sentence place any Court statutorily Division, mark the end of of this review will completion Review cause, action state action upon petition upon excepting for rehearing.
Defendant,
has been
Coleman
sentenced
Dewey Eugene
under a
judgment
of aggravated kidnapping
crime
Court,
10,
the District
1978.
July
order entered by
was found
Coleman
Dewey
guilty by
The facts on which
Eugene
14, 1976,
are set out
his earlier
appeal
on November
a jury
26,
Court,
1978.
v. Coleman
we decided
State
April
which
1,
those
We need
in-
Defendant had convicted crimes of deliberate homicide, and sexual intercourse without aggravated kidnapping, consent, 94-5-102, 94-5-303, 94-5-503, sections violations of R.C.M.1947, 45-5-303, 45-5-102, sections 45-5-503 MCA. now By decision Coleman we remanded the case in the appeal, our II, District Court for on count resentencing aggravated kidnap- III, and count sexual ping, intercourse without consent. The judg- I, ment of conviction on count deliberate homicide and the sentence thereupon were affirmed. imposed,
The District Court on remand set a sentencing “in ac- hearing cordance with section 95-2206.11, R.C.M., 95-2206.06 through 14, amended” for 1978. At that hearing, court denied a June motion of defendant to quash and ordered the presentence report be filed. Neither party presented witnesses or other evidence.
Thereafter the court set July as the date for sentencing, date, on that the District Court handed counsel for defendant and State, of its copy written findings, judgment and order. After argument was presented, District Court then and filed its signed findings, judgment and order.
The District Court found and concluded that the cir- aggravating 95-2206.8(7), cumstances set forth in section R.C.M. existed because the offense of aggravated had been kidnapping committed by defendant and victim, it had resulted in the death of the Miss Harstad; Peggy that none of the circumstances mitigating listed in 95-2206.9, section were substantial sufficiently to call for leniency case; in this and that the only circumstance mitigating technically was that present the defendant had no record history prior criminal activity.
By conclusions, reason of his findings the District Court ordered that the defendant Coleman Dewey Eugene be- hanged tween the hours of 6:00 a.m. and 6:00 on the 31st p.m. follow- day ing completion the automatic review of his case by this Court, said execution to be supervised by sheriff of Yellowstone The District County. Court further ordered that defendant be sentenced a to term of for the years crime of sexual intercourse consent, without and that such sentence be served consecutively homicide, his sentence of 100 years for deliberate which had been assessed previously against defendant and which was not disturbed on his appeal.
a As result of his trial in November defendant was then *8 308 I, deliberate
sentenced the District to 100 on count Court by years homicide; II, death on count by aggravated kidnapping; hanging III, in- and to on sexual without consent 40 count intercourse years the decided this Court flicting injury. questions One of bodily the was that sentence of death by hang- on first Coleman his appeal was under statutes then in effect. invalid ing trial, statute in Mon- At time of defendant’s death penalty 94-5-304, was section kidnapping tana for aggravated read: R.C.M. 1947. It sentence of death conviction
“A court shall impose following the result if it finds the victim dead as of aggravated kidnapping criminal conduct.” to death under this statute. Defendant was sentenced 513, (Ch. been in 1973 94-5-304 had enacted Section which (Ch. 126, (1973)) 1974 Laws of and amended in Laws Montana (1974)) the State the 1977 session of Montana repealed 338, (1977)). (Ch. In same enact- Laws of Montana Legislature sections death statutes were codified in ment new R.C.M.1947, 95-2206.15, sections now 94-2206.6 through 46-18-310 MCA. 46-18-301 through because section we held that former In first Coleman appeal, it was constitu- 94-5-304 mandatorily imposed penalty, deci- Untied Supreme under States tionally impermissible 280, (1976), 96 S.Ct. 428 U.S. v. North Carolina sions Woodson 584, 944; 2978, (1977), 97 v. 433 U.S. 49 L.Ed.2d Coker Georgia 982; 2861, 431 v. Louisiana L.Ed.2d Roberts Ct. 53 S. 1993, L.Ed.2d 637. This Court thereupon 97 S.Ct. U.S. on assessed defendant against held that and, for reasons not impor- be set aside must November here, inter- sentence on the count of sexual year tant We also be set aside. remanded consent must course without the counts of aggravated on resentencing case to District Court for consent, in- without and sexual intercourse without kidnapping as which law was applicable the District Court structions to of the defendant. to the resentencing with respect *9 remand, the cause was Court on by When received District the District Court determined that it would new sentenc- apply statutes that included District Court ing penalty. used the 1977 to assess the de- then statute death penalty against fendant.
Defendant raises 19 of We error in will specifications appeal. these discuss errors within the broader context of the issue alleged to which relate. We the issues in this they frame review in presented manner: following Did
1. defendant’s conviction on the count of deliberate homicide and the of count aggravated constitute kidnapping double jeopardy?
2. Were the Montana present capital punishment provisions, 95-2206.15, R.C.M.1947, 95-2206.6 sections through now sections 46-18-301 through 46-18-310 MCA in applicable resentencing defendant? Do Montana’s
3. capital punishment violate provisions constitu- tional standards?
4. Was defendant denied fair opportunity present argument and evidence with respect sentencing?
Is5. defendant’s of death sentence to his crime disproportionate cases, respect with sentences in imposed similar or was it the of or other product passion, arbitrary factors? prejudice If6. valid and capital punishment provisions are applicable, Court, sentence, must this in its review of the reconsider issues raised and defendant’s first disposed in appeal?
We first issue address the raised defendant that his con viction his aggravated kidnapping, conviction of light deliberate homicide based upon has felony kidnapping, him twice in Defendant placed contends jeopardy. aggravated conviction is barred Amendment kidnapping Fifth Constitution, United States Constitution and the 1972 Montana II, Art. 25. Defendant also argues this conviction is barred § R.C.M.1947, 95-1711, section now statutorily by section 46-11-501, -502 MCA. states no per-
The Fifth to the Federal Constitution Amendment shall same to be twice jeopar- son “be for the offense subject put II, 25, states . . .” Montana Constitution Art. “No The 1972 dy § for the same offense.” De- shall be again put jeopardy person trial, however, to but these double fendant has been one subjected from multiple punish- also offenders protect jeopardy provisions (1873), (18 same 85 U.S. Lange ment offense. Ex Parte 872; Wall.) 163, 21 L.Ed. Matter of Ratzlaff Mont. 564 P.2d 1316. count contended his on the
Defendant has conviction set of facts as his conviction deliberate homicide same upon he thus has been exposed on count of aggravated kidnapping, double We determine the against double jeopardy. prohibition *10 not been this case. has violated jeopardy as follows: I defendant reads Count of the information charging and caused the defendant knowingly “Count I: That purposely Harstad, to-wit: Lee being, Peggy the death of another human of felonies: following while in the commission engaged Consent, involving and Sexual Intercourse Without “Kidnapping the said Lee Peggy of force and violence against the use physical Harstad.” reads as follows:
Count II of information and and That the defendant knowingly purposely “Count II: to-wit: person, Peggy lawful restrained another without authority Harstad, a of isolation and using her in place Lee by holding Sex- of to-wit: felony, to facilitate the Commission force physical of inflicting Without and for purpose ual Intercourse Consent victim, Lee Peggy the said and terrorizing on bodily injury Harstad, Harstad.” of Lee resulting Peggy two are suf- test whether offenses
The established for determining cumulative ficiently distinguishable permit imposition (1932), 284 stated v. United States Blockburger punishment 182, 299, 304, 180, 306: 52 76 L.Ed. U.S. S.Ct. that, rule where the same act or transaction
“The applicable
311 test of two distinct statutory provisions, constitutes violation whether there are two offenses or be to determine applied an additional one is whether each provision requires proof fact added.) which the other does not...” (Emphasis As the United States Court noted in Brown v. Ohio Supreme (1977), 161, 166, 187, 53 L.Ed.2d this test 432 U.S. S.Ct. the elements of the two crimes. emphasizes defendant’s Rejecting claim of double stated in State v. Davis jeopardy, “ (1978),), Mont. an P.2d ‘A act single may statutes; offense two and if each statute of an against requires proof not, additional fact which an the other does or conviction acquittal under either statute does not from the defendant exempt prosecu- ” tion and under the punishment other.’ 577 P.2d 377. (Quoting 433.) Thus, from v. Morey Commonwealth 108 Mass. our in the inquiry is directed the elements of present appeal proof to establish each count necessary of the information.
To establish count I of the information had prosecution (1) prove (2) defendant purposely caused the knowingly (3) death of another human while being the felonies commiting (4) kidnapping sexual intercourse without consent. To establish count II information the prosecution had to de- prove (1) (2) fendant knowingly without purposely lawful authority (3) restrained another person her in by holding of isolation place (4) and by using force to facilitate physical the commission of sex- (5) ual intercourse without consent and for the purpose inflicting bodily on and injury the victim. Both terrorizing counts required *11 state, of proof and “purposely mental knowingly” of kid- proof and However, of sexual napping proof intercourse without consent. I, addition, count required of death of the proof victim which not; count II did and count II required to inflict proof purpose and terrorize the bodily injury victim which count I did not. The (former 94-5-102, offenses of deliberate homicide section R.C.M.1947, MCA) now section 45-5-102 and aggravated kidnap- (former 94-5-302, R.C.M.1947, ping section now section 45-5-302 MCA) are and distinct separate offenses in our codes and each re-
312 Therefore, does not.
quires
elements
other
defendant
proof
and
both
count
may
convicted
sentenced for
count I and
II of
double
information without
violating
jeopardy prohibition
arose
same
even
the counts
from the
conduct or
though
episode.
Brown,
166,
2221;
(8th
432
97
U.S. at
United States v. Eagle
S.Ct.
1193,
1978),
(defendant’s
Cir.
586 F.2d
1196
conviction of assault
awith
and assault
in serious
deadly
resulting
bodily
weapon
injury
affirmed);
each
same
v.
arising from
incident
Kowalski
shooting
(8th
1976),
1071,
Parratt
Cir.
533
1073-74 cert. den. 429
F.2d
125,
844,
(conviction
97
50
and
robbery
U.S.
S.Ct.
L.Ed.2d 115
affirmed);
a firearm in commission of same
Smith v.
using
robbery
(10th
1972),
(conviction
462
Gaffney
Cir.
F.2d
665-666
affirmed);
and
based
same transaction
larceny
burglary
upon
Davis,
Arguments v. 358 U.S. defendant in Williams Oklahoma 421, 3 defendant had kidnapped L.Ed.2d 516. There the S.Ct. charge his He murder pled guilty murdered victim. with a life was then charged kidnap- sentence. Defendant received after sentenc- and received the ping, pled guilty circumstance. the homicide as an aggravating court considered ing it was on the grounds the death sentence Defendant challenged for the homicide to the life sentence him given disproportionate for the same a second punishment it constituted grounds and on defendant’s Court rejected The United States Supreme crime. kidnapping law made clearly Oklahoma claims stating offenses; there was no therefore and distinct homicide separate the “lesser crime” kidnapping in the argument merit bar so as to any crime” of murder into the “greater “merged” sentence, than was for sentence imposed at least greater or also stated: 421. S.Ct. homicide. U.S. the Fourteenth Amendment does Due Process Clause of “[T]he Constitution, or not, a State fix in the require nor does anything crime it define to im- for any may impose particular and in- same sentences separate or ‘proportionate’ pose *12 313 sentence to that the we cannot say crimes. Therefore dependent was within the range which death for the kidnapping, State, law of the that crime authorized for punishments of law other constitutional any due process denied to petitioner added.) at 427. (Emphasis 358 U.S. S.Ct. right.” I, count deliberate conviction of both We conclude defendant’s homicide, II, did not transgress kidnapping, and count aggravated state, inhibitions, double federal or against constitutional jeopardy. conviction also his kidnapping has argued aggravated
Defendant R.C.M.1947, 95-1711(2), now of section is barred by operation the aggravated kidnap- MCA. Defendant argues section 46-11-502 the count of deliberate an “included offense” in count is ping be, l(2)(a), under section 95-171 and he therefore may homicide 46-11-502(1) MCA, convicted of count. Section now section MCA, R.C.M.1947, -50l(2)(a) l(l)(b), now section 46-11 95-171 as an offense “included offense” in pertinent part defines or less than all the facts required “established of the same by proof accused of the offense An charged.” to establish the commission in- of more than one offense if one offense is not be convicted may R.C.M.1947, l(2)(a), now sec- 95-171 cluded in the other. Section However, 46-11-502(1) as above makes the discussion tion MCA. clear, homicide and to establish aggravated to establish deliberate such elements. In of distinct require separate kidnapping proof do not bar the conviction recited case the statutory provisions (1979), 180 Mont. State v. Perry aggravated kidnapping, 1129, 1131, on double claim fails and defendant’s jeopardy P.2d well. point
The next issue with which we are confronted is whether ex in the federal and state post provisions constitutions or the facto (sec codified rule of statutorily construction against retroactivity 12-201, R.C.M.1947, MCA) tion now section 1-2-109 prevent ap statutes enacted in 1977 to this defend plication facts, ant. As was in the com indicated recitation of defendant 1974, however, mitted the crime with which he was charged remand, after our upon resentencing District Court applied statutes enacted in 1977. Defendant this violates the con- argues stitutional ex laws as well as the prohibition against post facto Defendant further statutory provision against retroactivity. argues *13 he is entitled to be sentenced under the law in effect at the time the crime was committed. this Because Court has declared the provi- sion which was effective at that time mandating unconstitutional, to be defendant contends the maximum sentence he receive is 100 in may years prison. issue,
In
it must be
determined what
initially
considering
would cause the
of the 1977 statutes to an act com
application
the
mitted in 1974 to run afoul of the ex
prohibition
post facto
rule of construction
Therefore what
statutory
against retroactivity.
makes a statute
the
ex
or “retroactive” becomes
keystone
post facto
because a statute
on events antece
consideration. Simply
operates
dent to its effective date does not make the statute ex
facto,
post
(3
386, 390,
(1798),
Dall.)
1
648 nor
Calder v. Bull
3 U.S.
L.Ed.
a law
retroactive.
v.
does such
make
Cox
operation
prohibitively
435,
(1922),
427,
154,
43
For State example, witnesses, ac- felons to after the testify, of qualifications allowing v. the act but before his trial. The Court in Hopt cused committed 262, 574, 202, (1884), 110 U.S. 4 S.Ct. 28 L.Ed. Utah Territory of even though ex claim based on this change dismissed the post facto had detrimental effect stating: the change nor . which do not increase punishment, “. . [Alterations necessary or the ultimate facts of the offense ingredients change — the crime untouched the nature of to establish but guilt, leaving — conviction of essential to and the amount or degree proof of of certain classes per- upon competency removes restrictions witnesses, in which no modes of procedures only, relate to sons 316 state,
one can be said to have a vested
and which
right,
upon
grounds
public
may
at
110
at
policy,
regulate
U.S.
pleasure.”
of
590,
added.)
4
at
S.Ct.
210. (Emphasis
(1898),
Court in
Although
v. State
Thompson
Utah
170
of
343,
620,
1061,
U.S.
18 S.Ct.
42 L.Ed.
found the
from re
change
8,
of 12
quiring
panel
jurors to
requiring
to have
panel
affected the accused’s
substantially
therefore be ex
rights
post
it stated
facto,
no one had a vested
in mere modes
right
of pro
352,
Furthermore,
cedure.
cused a to be in all right the law in force when respects, by the crime was commited charged he has not been de- providing prived any substantial he at the right immunity possessed Dobbert, time of the commission offense 432 charged. U.S. 293-294, 2290; 183, 507; at 92 S.Ct. 237 35 Malloy, U.S. S.Ct. 565, (1896), 590, 904, Gibson v. 162 16 U.S. S.Ct. Mississippi However, L.Ed. 1075. the Court has made clear a which is change labeled will not it from ex procedural except post prohibi- facto tions if it invades or modifies with rights party charged crime. v. Missouri 107 U.S. Kring S.Ct. *15 (The L.Ed. 506. made was evidence that con- change Kring all, clusive of at innocence not factor and in effect increased the offense.) for the what punishment will changes “procedure” Just be held to be of sufficient moment:
317 “. . . to the constitutional cannot be em- transgress prohibition braced within a formula or stated in The general proposition. distinction is one of But the constitutional degree. in- provision tended to secure substantial personal rights against arbitrary . . . and not to limit oppressive legislation control of legislative remedies and modes of which procedure do not effect matters of (Citations omitted.) Beazell, 171, substance.” 269 46 U.S. S.Ct. at 69. which, Court has also stated a statute Supreme when viewed sense,
in the
of reason and
light
common
mitigates
rigor
law in force at the time a crime was committed
cannot
regarded
as ex post
with reference to that crime.
v. North
Rooney
facto
(1905),
319, 325,
264,
494;
Dakota
196 U.S.
25 S.Ct.
49 L.Ed.
Calder,
Section
now section 1-2-109
states
However,
that no law is “retroactive”
so
unless
declared.
expressly
this is but a rule of construction and what is “retroactive” so as to
warrant
of the rule has been defined
application
judicially by
and other courts. A statute is not “retroactive”
because it
merely
Hart,
draws
antecedent facts for its
v.
260
Cox
upon
operation.
157,
U.S. at
added.)
94-5-304,
as it then
imposed
penal-
Section
as a
of the criminal conduct “unless there
if the victim dies
result
ty
was deleted
quoted
are
circumstances.” The
mitigating
language
94-5-304,
the death
making
the 1974 amendment to section
by
circumstances
Ch.
in those
mandatory
specified.
(1974).
94-5-304 was
in 1977
repealed
Laws of Montana
Section
(1977) which enacted the current
Laws of Montana
by Ch.
is,
scheme for
of the death penalty;
providing
imposition
or ag-
consideration of
sentencing hearing;
mitigating
separate
conclusions,
circumstances,
and ex-
written findings
gravating
note that the
of the sentence. It is
important
review
pedited
94-5-303(2),
45-5-303(2)
section
enactment of section
now
original
committed,
MCA,
was
here was
effective when the crime involved
always
amendments and has
provided
never altered
death or im-
shall be punished by
crime of aggravated kidnapping
only
The amendments have related
procedure
prisonment.
the sentence.
the court must follow in imposing
amendment,
committed,
The 1974
effective when the crime
if the victim dies as a result of the
mandated
death penalty
this,
The 1977 amendments ameliorated
allow-
criminal conduct.
certain limits and re-
an exercise of
discretion within
judicial
ing
the lat-
consideration of
circumstances.
mitigating
Clearly,
quiring
of the 1974 amendment and are
ter amendments lessened the rigor
face,
their
cannot
onerous than the 1974 law. As such
on
they,
less
390;
Bull, 3
at
v.
Rooney
be considered ex
Calder v.
U.S.
post facto.
264;
Florida,
Dakota,
v.
196
at
25 S.Ct.
Dobbert
North
U.S.
292-294,
accused has no
92
2290. Because the
432 U.S.
S.Ct.
his
materially affecting
vested
in modes of
right
procedure
their face do not im-
and because the
in the law on
changes
rights,
transac-
duties or disabilities in
respect
new
obligations
pose
face retroac-
are also not on their
tions already past,
changes
720;
Harlem,
P. at 733. In
McIntyre,
P.2d at
229
tive.
City fact,
in the
unconstitutionality
declaration of
had there been no
decision,
well have been
the District Court may
first Coleman
benefited the
as their changes
the 1977 statutes
to apply
obligated
188, 197,
97 S.Ct.
accused. Marks v. United States
U.S.
990,
Because this did declare the 1974 amendment mandating unconstitutional, the ex and “retroac- post facto Thus, tive” are raised defendant. the crucial arguments question becomes what is the effect of that declaration. It must be empha- Coleman, sized the decision in declared sec- unconstitutional tion 94-5-304 as amended in 1974. section preceding 94-5-303, the elements of the crime and the enumerating potential *17 was not addressed the decision and has remained punishment by viable since its enactment in 1973.
There exists a rule of
a statute
statutory construction that
declared unconstitutional
is considered
void ab initio
has no
effect. This
is best
proposition
statement
typified by
following
425, 442,
(1886),
of
Field in
v.
Norton
118 U.S.
6
Shelby
Justice
1121,
law;
S.Ct.
In Chicot County District v. Baxter State Bank Drainage 371, 374, 317, 308 U.S. 60 S.Ct. 84 L.Ed. where the validity 329, aof decree based a judicial upon statute declared un- subsequently constitutional was questioned, the indicated the Court broad state- ment in Norton must be taken appeared qualifications with decision, and in a later stated: Supreme . . “. the effect of constitutional on conduct given ruling prior ‘is to no set of absolute retroactive subject invalidity” “principle
320
but
. and
consideration of
relations .
depends upon
“particular
vested,
conduct... of
claimed to have become
particular
rights
status, of
deemed to
determinations
have
“of
prior
finality;”
statute and of its
in the
nature both
public policy
light
’ . . However
of Norton
previous application.”
appealing
logic
abstract,
have been in the
its
our
abandonment
may
reflected
or even
rules
law are hard
recognition
statutory
judge-made
on which
must
decisions
rely making
shaping
people
facts
192,
(1973),
their conduct.” Lemon v. Kurtzman
411 U.S.
198-199,
1463,
added.)
36
151.
S.Ct.
L.Ed.2d
(Emphasis
(1965),
from Linkletter v. Walker
381 U.S.
S.Ct.
(quoting
Dist.,
There are “hard facts” this Court present appeal A fundamental concept must consider in its determination. making is that the ex clause is based liberty of our constitutional post facto fair the have the upon principle persons right warning Marks v. United which will rise to criminal give penalties. conduct 191, States, 430 at 97 990. The substantive portion U.S. S.Ct. statute, the elements of the aggravated kidnapping enumerating been crime and the has not declaring quantum punishment, the 1977 since in 1973. The made changes altered its enactment 321 law statutes from the 1974 ameliorated death mandatory penalty after were to one certain taken. imposed only procedural steps were procedural resentencing Those followed in steps Dewey At the the crime was committed Coleman. time the statutes were that the of death a very consequence clear was for penalty probable the commission of the crime.
The defendant has cited this to cases and Court from this other us to follow and hold the jurisdictions urged precedent their question statutes in here may not to defendant. applied However, those cases can be v. In distinguished. State Rodgers (1978), 215, 285, tried, 280 S.C. 242 S.E.2d were defendants convicted sentenced under enacted statutes in 1974. Those statutes were later ruled unconstitutional. State then have the petitioned to defendants resentenced under statutes in 1977 which were promulgated likely constitutional. Those very statutes provided procedural at all safeguards phases of criminal adjudication process from pretrial sentencing. The South Carolina denied State’s because Supreme petition the defendants did therein not receive all the procedural safeguards mandated the 1977 S.E.2d enactments. 242 at 218. In the pres- ent cause the enacted in 1977 related safeguards only to senten- of the criminal cing phase adjudication the defendant process did here receive v. protections. those In 23 People Teron 103, 633, 773, Cal.3d 151 P.2d Cal.Rptr. the California Court refused to enacted in Supreme apply sentencing provisions 1977 to crime committed 1975. The statutes in effect in 1975 640, had been declared unconstitutional. at Cal.Rptr. at
P.2d
780.
case is
from
Factually
distinguishable
Teron
here, because
unconstitutionality
one
the declaration of
occurred
in 1976 while defendant was not
with the crime
charged
until
1977 and the 1977 statutes did not become effective
April
until
Therefore,
1977.
when the defendant was
August
with his
charged
crime there existed
fact
no constitutional death
statutes
640,
in California. 151
and this
declared the 1974 law unconstitutional
1978.
Court
tried,
Teron,
was
and convicted under constitu-
Unlike
Coleman
statutes, but
a
declared un-
tional
sentenced under
statute later
constitutional.
101,
766,
(1979), 99
589
is the
Idaho
P.2d
Lindquist
State v.
There
authority
argument.
for Coleman’s “retroactive”
strongest
1975,
tried,
his crime in
was
convicted
the defendant committed
laws
amended in 1977
when
in 1976. The
were
sentenced
the
after
the laws in
appeal,
declaring
court considered
the Idaho
unconstitutional, was faced
be
with
in 1975 and 1976 to
effect
laws
on resentenc-
1977
could
question
applied
the
whether the
not,
basis
were
held
the
retroac-
they
could
on
ing.
they
However,
devotes no
majority
“ ‘. . . concerned, so far as mere modes of are procedure party action, has no more in criminal right, than civil to insist that his case shall be disposed of under the law in force when the act to be is investigated to have charged taken Remedies place. must always be under the control of the legislature, and it would create endless confusion in legal if case was proceedings to be every conducted accordance with the rules of ... in existence practice when its facts arose. The . . . legislature may prescribe altogether dif- discretion, ferent modes of in its procedure though cannot . . . lawfully with dispense those substantial with protections which the law surrounds the existing accused of person ” Utah, 351, 352, crime.’ v. Thompson State 170 U.S. at S.Ct. at 623 with (quoting from approval Cooley on Constitutional Limitations); v. Ward People 50 Cal.2d 328 P.2d 780. The statutes in question also did not vested impair rights, or duties, create new obligations, or disabilities with to trans- respect actions already past. if
Only we were to adhere to the rule rigidly of construction an- nounced in v. Norton Shelby, that a supra, statute declared un- constitutional treated as effect, never had an having operational could the 1977 statutes be read to interfere with the substantial rule of this Yet the absolute application Dewey Coleman.
rights it, the which the Court promulgated abandoned by has been here, as this Court the rule Court. To follow Supreme United Sates ef- “retroactive” violation or find an ex in order to post must facto fect, at the time he Coleman Dewey stating would impliedly hence years that four his crime had the omniscience committed for the imposing prescribing procedure statute and that at the time be declared unconstitutional crime would such Clearly existed. valid procedure was committed no crime breaking point. reason to the stretches conclusion applied District properly that the We therefore hold to this death penalty relating imposition statutes defendant. trans *21 violations nor decided no ex post Having facto occurred, and statutes have the rule retroactive against of
gressions here, defendant’s we reach 1977 statutes are applicable the outset, At the are unconstitutional. that these statutes arguments of does death has held the punishment the Court we note Supreme cruel against constitutional prohibition violate the invariably 153, (1976), 428 U.S. v. Georgia unusual punishment, Gregg Furthermore, 2909, court 187, the Gregg 859. 49 L.Ed.2d 96 S.Ct. abstract, if it does is not excessive a penalty that in the indicated of and is pain infliction unnecessary the wanton not involve of the crime. 428 U.S. to the severity of out proportion not grossly 173, court stated it must presume Finally, 96 2909. at S.Ct. elected democratically aby a selected punishment validity 175, 2909. at 96 S.Ct. 428 U.S. legislature. 280, (1978), 581 177 Mont. v. McKenzie
As we stated State 759, 1205, 1228, Supreme the United States 35 St.Rep. P.2d 242, (1976), U.S. 428 v. Florida its decisions Gregg; Proffitt 913; (1976), 2960, 428 U.S. Texas 49 L.Ed.2d 96 S.Ct. and Jurek v. 929, 2950, to have established 262, seems 49 L.Ed.2d 96 S.Ct. scheme for im to valid requisite which are three criteria general First, at least one statutory there must be death penalty. posing be con- sentence may before death circumstance aggravating 325 Second, sidered. defendant must be afforded the opportunity before at a bring the sentencing body separate sentencing hearing circumstances individual defendant. mitigating relating Third, there must be available of the judicial review prompt a court decision of statewide sentencing jurisdiction, providing evenhanded, a means to rational and consistent im- promote of death sentences under law. A the sec- position refinement of ond criterion was added in Lockett decision v. Ohio 586, 973, 438 U.S. 57 S.Ct. L.Ed.2d the sentencing must not from body precluded considering any aspect defendant’s record character as a at factor. 438 U.S. mitigating at S.Ct. at 980. The L.Ed.2d death must penalty also not be without imposed mandatorily only consideration Coleman, factors. at mitigating 579 P.2d 741-742. 95-2206.7, R.C.M.1947,
Sections 95-2206.6 and now sections 46-18-301 and -302 MCA provide for hear- separate sentencing ing in death cases at which the may court con- sentencing sider any evidence relevant to the sentence and which the defense may argue against Sections penalty. 95-2206.8 through 2206.10, R.C.M.1947, now sections 46-18-303 -305 MCA through enumerate aggravating factors mitigating to be considered and direct the court to consider one other. against the 95-2206.11, R.C.M.1947, Section now section 46-18-306 MCA for written provides findings supporting determination cases where Sections imposed. -2206.15, R.C.M.1947, 95-2206.12 through now sections 46-18-307 -310 MCA through for an provide expedited review *22 the death sentence and set forth standards which this penalty by Court must review the sentence. 95-2206.8, -2206.9, -2206.10,
Defendant sections argues R.C.M.1947, 46-18-303, -304, now sections -305 do not MCA allow for the consideration of and mitigating circumstances proper in effect of the penalty should one impose mandatory circumstances be found. Defendant’s con- statutory aggravating of these is much restricted ception too operation provisions
326 a death we in effect mandate agree they
and do not circumstance is found. aggravting whenever an R.C.M.1947, MCA, 95-2206.10, section 46-18-305 Section now take account the aggravating instructs the court to into sentencing 95-2206.8 circumstances enumerated sections mitigating a sentence death “if it finds one and -2206.9 of impose there are no more of circumstances and finds that aggravating the substantial call for lenien- sufficiently circumstances mitigating added.) cy.” (Emphasis Court has held and Four- Eighth United States Supreme of the character require
teenth Amendments consideration of individual offender and the circumstances the par- record in a the death impose ticular offense determination whether 303-305, at v. 428 U.S. Woodson North Carolina penalty. it a scheme Jurek, statutory 96 In had before S.Ct. 2978. Court circumstances, yet mentioned explicitly only aggravating Texas found the scheme constitutional in light Appeals Court the scheme consideration requiring Court’s construction of US., 272-273, 96 Clearly factors. 428 S.Ct. 2978. mitigating ex- those by Montana’s statutes farther than go approved Jurek circumstances, thus requiring mitigating consideration plicitly required determination as making subjective 95-2206.10, We do read sections 95-2206.8 through Woodson. R.C.M.1947, as 46-18-305 MCA through now sections 46-18-303 an aggravating finding mandating penalty upon circumstance, but consideration of whatever requiring rather if to determine they outweigh circumstances exist mitigating found to be present. circumstances aggravating statutes would Defendant that Montana’s death argues because of that Supreme be to reversal U.S. subject Ohio, v. and its vacation and re- decision in supra, court’s Lockett (1978), v. U.S. mand in of Lockett Arizona light Jordan 3138, An of these cases L.Ed.2d 1157. examination S.Ct. held a sen- us Basically leads conclusion. Lockett opposite considering any aspect should not from precluded tencing entity
327 or as a factor. The defendant’s character record mitigating to be Ohio statutes enumerated three factors considered mitigating and the Court read this as in the death penalty Supreme imposing to exclude of factors considered and other limiting range 606-607, relevant 438 U.S. 98 at factors. at S.Ct. possibly 2965-2966, 57 at 991-992. in Jordan, L.Ed.2d Similarly required Arizona scheme enumerated factors and their mitigating statute. consideration identical to Montana’s See language Jor- 452, (1976), However, dan v. Arizona 114 Ariz. 561 1224. P.2d enumeration, the Arizona like the Ohio enumeration is on its face exclusive, thus and the vacation of the death re- warranting penalty mand in not suffer Lockett. Montana’s statute does from light factors, this defect. it enumerates section Although mitigating 95-2206.9(1) (7), R.C.M.1947, 46-18-304(1) through now section MCA, (7) indicates the through clearly also body should consider of the any other existing mitigation penalty. Jact 95-2206.9(8), R.C.M.1947, 46-18-304(8) Section now section This MCA. inclusive not factor in either Ohio or present scheme. Arizona
Defendant also because contends he received the death but life aggravated kidnapping only sentence for deliberate homicide, the death penalty imposed constitutes cruel and unusual punishment prohibited by Amendment. We Eighth do As was made clear Williams agree. there is no constitutional requirement for the same sentences proportionate when the 586, are crimes and separate independent. 358 79 U.S. S.Ct. 421. We have indicated above the crimes of deliberate homicide are aggravated kidnapping separate independent crimes and defendant’s conviction each violated no double jeopardy Furthermore, protections. Court in made clear Supreme Gregg, a life “when has been an taken offender cannot [it said] punishment invariably crime.” disproportionate [of death] 428 U.S. at at 2932. The S.Ct. decision Court in v. Coker 433 U.S. S.Ct. 53 L.Ed.2d Georgia 982, is relevant to crimes for which the has been im- a life. not the case which did not result in the loss of Such is
posed here.
We have defendant’s respect jury considered contentions with respect in the with participation sentencing procedure *24 a reasonable finding beyond statutory requirements guilty is a and determine doubt in a case where death penalty possible these contentions do not alter our conclusion as to constitu- 1947, 95-2206.15, sections 95-2206.6 R.C.M. tionality through MCA. now sections 46-18-301 -310 through scheme statutory This that Montana’s Court therefore concludes standards established by for the death meets the imposing penalty We further con- and Woodson decisions. Jurek, Gregg, Proffitt because clude cruel unusual Mon- simply not penalty its in case for the allow imposition tana’s criminal statutes crime, as com- crime of but not for the kidnapping aggravated here, mitted of deliberate homicide. contention that his counsel
We turn now to defendant’s arguments against was not to imposition permitted present the mandate of section 95-2206.7 now death to penalty, contrary MCA, “The state section 46-18-302 which states pertinent part: be to argu and the defendant or counsel shall permitted present his of death.” Defendant maintains ment for sentence against Court because the record that the District had from appears 10, date set prior July determined the sentence to already sentence, denied to defendant was the opportunity for pronouncing This contention arguments against penalty. present any 2, an order dated Court issued is without merit. District June 1978, held was on hearing sentencing clearly indicating 1978, 14, through sections 95-2206.6 accordance with June R.C.M.1947, 95-2206.11, -306 through 46-18-301 now sections must con sections what MCA. Those indicate including the death penalty, specifically sider imposing against be allowed to present argument or his counsel defendant the death penalty. order, and his the defendant
Therefore by June hearing, content of that were notice of the proposed counsel on cir- mitigating evidence of did not present defendant No statement report. other than the presentence cumstances certain was made than to suggest other the death against was in fact before it validity its constitutional to test procedures and did avail speak Defendant had his opportunity imposed. de- July order of the District Finally, of it. himself the defendant indicates rehearing for petition defendant’s nying to accept the District Court’s offer did not take advantage also with respect from the parties conclusions findings proposed at least two op- defendant and his counsel had the sentence. Thus submit to the Court regarding portunities argument 10, 1978 but did not do so. July hearing, penalty prior We have determined thus far that defendant’s convic tion for violated no constitutional aggravated kidnapping prohibi tions double that the 1977 against jeopardy, provisions imposi tion of the death are to this defendant and fur applicable constitutional, an thermore are and that this defendant given *25 We death opportunity present arguments against penalty. a come now to that of this which constitutes review of part appeal review, we the sentence received defendant. In this conducting will defendant’s arguments consider regarding proportionality of the to other factors. penalty received relation
The decision in
this Court to determine “whether
Gregg compels
the punishment of death is
in relation
crime
disproportionate
for which it is
330 we In so sentencing hearing. doing, and transcript
the record as the District Court primary are not usurping position criminal jurisprudence in Montana’s entity sytem MCA); 95-2212, R.C.M.1947, (see section 46-18-103 now section that, severity as in its unique we mean to insure rather and wantonly as is not and as irrevocable See, v. Furman imposed. freakishly, arbitrarily capriciously 238, 309-310, 33 L.Ed.2d 92 S.Ct. 408 U.S. Georgia 188-189, (Stewart, 96 S.Ct. 428 U.S. J., 346 concurring); Gregg, 2909. here was result the sentence imposed
Defendant has argued considered factors. We have arbitrary or other passion, prejudice war- that two and determined regard defendant’s arguments to Robert the sentences given Defendant argues rant discussion. crime, Nank, in this when com- defendant’s accomplice Dennis the sentencing. inherent in own reflect the prejudice to his pared Nank, man, deliberate the offenses of guilty white pled without sexual intercourse to commit homicide and solicitation sentences respectively. year year consent and received black, death for his sentence of because he is Defendant argues of Nank’s reflects same incident those crimes from the arising defendant Nank and this We do not agree. obvious prejudice. namely, years for similar crimes received similar sentences for the 40 and 20 years respectively deliberate homicide intercourse without con- act of sexual from the charges stemming However, kid- guilty aggravated defendant was also found sent. is for this crime Nank. It finally dropped against a charge napping, in his asser- Defendant correct was imposed. the death penalty same to the his guilty plea to accept refused tion the prosecution to plead Defendant offered guilty. which Nank had pled charges however Nank had pled guilty, to which same charges guilty was innocent. prosecu- indicate he such must *26 he insisted plea held we have previously and this offer accept tion refused to Coleman, v. be erroneous. State offer not to refusal of conditional in defendant’s find We do not prejudice at 744-745. 579 P.2d re- sentences his accomplice because of the sentencing simply ceived. was a factor to his operating his race has also argued
Defendant of the death penalty. the imposition with respect prejudice of this other to no evidence prejudice defendant points However has race. Defendant sentence and the fact of his fact of the than the such evidencing prejudice, factors as to various possible speculated We have ex- this claim. is sufficient to establish but speculation as a result it was not imposed the sentence and determine amined factors, because of his arbitrary or other of passion, prejudice race. factors was evidence of mitigating there
Defendant contends did consideration and District Court not give proper present conclusions, and when render- its findings, evidence when making section required by District Court ing judgment. 95-2206.10, R.C.M.1947, 46-18-305 MCA to consider now section can circumstances and and mitigating compare aggravating at least ag- if there exists one the death penalty impose suffi- circumstances of and no mitigating circumstance gravating 95-2206.10, Section leniency. cient to call for substantiality R.C.M.1947, This is required section 46-18-305 MCA. now is evidence determine whether there review of the sentence to upon regarding conclusions findings the District Court’s support Defendant admits circumstances. mitigating aggravating that the aggravating found and concluded District Court properly R.C.M.1947, 95-2206.8(7), now section factor found in section (death 46-18-303(7), kidnaaping) of the victim of aggravated MCA District Court is whether the was we now determine What present. evidence of there no in its conclusion that was correct leniency. substantial to call for factors sufficiently mitigating evidence of circumstances mitigating Defendant no presented the ex- acknowledged his counsel sentencing hearing, though That in- report. report istence of the presentence investigation and had of criminal activity dicated the defendant had no record lived where he community prior been an member accepted *27 332 4, 1974,
to
the date of the commission of this crime. The
July
evidence in
case
cir-
supporting
finding
aggravating
deliberate,
cumstance established that the defendant had been a
in the
voluntary participant
subsequent
kidnapping
rape
murder of the victim. The evidence further established that the
assault,
a
death of the victim occurred after
sexual
in a
moment
but over a
time
passion,
with the defendant first
period
then
to
then
bludgeoning,
attempting
strangle,
finally drowning
a
the victim in an effort to effectuate
deliberate decision to kill
crime,
Harstad.
the record of this brutal
we cannot
Peggy
Against
lack
the defendant’s
criminal
of record
say
prior
activity
Moreover,
a factor
substantial
call for
sufficiently
leniency.
District Court did consider the
circumstance of defend-
mitigating
ant’s lack
a
but
criminal record
concluded this circumstance
was offset
evidence that defendant
on
burglary
had committed
the same
and homicide occurred. Defendant
day
kidnap, rape
has
Nank’s
the source of this
argued accomplice
testimony,
evidence,
However,
was uncorroborated as to this fact.
Nank was
and we
corroborated on other
of his
sufficiently
aspects
testimony
have so held.
We now must this sentence to in similar those compare imposed cases to determine whether it excessiveor disproportionate 95-2206.15, R.C.M.1947, sec- those other sentences. Section now tion 46-18-310 MCA. As this is the frist time this Court has re- scheme, under new we are viewed sentence of death statutory to define obligated of our review scope when considering similar cases.
It is clear from the decision that the Gregg purpose ap- review in “a is to serve as check pellate capital-sentencing system the random or of the death against arbitrary imposition penalty.” added.) U.S. at S.Ct. at 2940. This review (Emphasis eliminates the possibility sentence will imposed by action of an “aberrant” sentencing entity. supra. Gregg, Court, Georgia Supreme construing identical to that language *28 statutes, our own has stated in similar cases: considering “. . . this court is not required to determine a that lessthan death sentence was never a in case imposed with some similar characteristics. On the we contrary, view it to be our under duty standard to assure similarity that no death sentence is affirmed unless in similar cases the state the throughout death has penalty been and imposed generally not and ‘wantonly freakishly’ imposed as stated by Stewart in [Furman, his concurring in opinion Justice (1975), 861, 829, Moore v. supra].” State 233 Ga. 213 S.E.2d 832 (cited 205, with 2909). 428 approval U.S. at 96 Gregg, S.Ct. added.) (Emphasis in both emphasis Gregg Moore on the imposition
the penalty, not
upon
subsequent outcome of any appeal from
also,
(1975),
410,
that imposition. See
v. State
234 Ga.
216
Jarrell
258;
(1974),
117,
S.E.2d
v. State
233
Gregg
Ga.
A factor our complicating 1943. defendant in Montana occurred in last of criminal hanging several heinous quarter century, although In the following occurred, a few times was assessedonly murders the death penalty had period sentencing entity District Courts. During discretion with repsect imposition unfettered unguided attitudes have changed, death and legislative penalty. Judicial however, revisions and in the last six to eight years, and such imposed, spurred perhaps have been enacted penalties Moreover, crime crimes. incidence of such serious the growing *29 a law statutory only has been of our part aggravated kidnapping decade is virtually review of cases earlier than this since 1973. Any was involved unless one because the death not penalty meaningless cases, however, state There are far back into our history. goes number, we to which can look for meaningful not large though comparison. (1974), 524 v. 164 Mont.
The defendants in State Rhodes
with and convicted of first-degree
were charged
P.2d
murder,
The defendants had
robbery.
escaped
kidnapping,
Montana,
Idaho,
who
Kalberg
Donald
kidnapped
from
jail
Montana, and were
Forsyth,
was
found shot to death near
later
in Tennessee after
one other
kidnapping
person.
later apprehended
the kid-
was clear that
defendants had committed
The evidence
“vicious, wanton,
murder of Donald
and the
cold-blooded
napping
sentenced the
These are the convictions that we can construe as “similar cases.” We note that it is since 1973 that the only death penalty could for imposed aggravated where the victim has kidnapping McKenzie, been killed. In the case of where that circumstance has occurred, the has been invoked. We also is a note Montana state and crimes such sparsely populated violent nature do not occur here as do in more frequently they densely populated states. We conclude of death imposed against defendant for the Harstad aggravated Peggy which kidnapping death, was resulted in her not excessive or disproportionate in similar cases in this state. penalty imposed Defendant has that his sentence is argued disproportionate ac- excessive when to the sentences received his compared We Robert Dennis Nank. have complice, already distinguished of these two above. Nank was sentenced persons situations deliberate homicide and solicitation to commit sexual intercourse
336 consent, the of
without charge aggravating kidnapping having been dismissed in return at defen- testimony for his guilty plea Therefore, dant’s trial. defendant’s sentence of death for ag- is not excessive or when gravated kidnapping disproportionate to the sentences received Robert Dennis Nank. Leni- compared in one case does not invalidate the death in others. ency penalty 224-226, 2909. U.S. S.Ct. Gregg, We come to the final issue in this whether appeal: upon of must review the sentence this Court reconsider issues imposed, the merits of the cause raised and of in the first regarding disposed Coleman We conclude we do not. Our examination appeal. record to review the of the death under the imposition penalty pro R.C.M.1947, 95-2206.15, visions of sections 95-2206.12 to now MCA, sections 46-18-307 to -310 is not to determina reconsider made, of merits but to whether in tions determine already light such has determinations the sentence been Our equitably imposed. determination of an issue constitutes a final prior adjudication Bank issue. State v. Swainson 176 Mont. Belgrade curiam). 578 P.2d (per as to certain
Defendant has the first Coleman decision argued invalid, the death thus finding penalty issueswas conditioned upon was necessitates validly imposed now that the finding of the first Cole- of those issues. An examination reconsideration this Court which defendant reveals the holdings man opinion constitu- were upon finding alleges dependent invalid, were made without such clearly dependency. tionally 745, 749, Coleman, 752. 579 P.2d at affirmed, cause is that the except of the District Court Judgment ex- resetting remanded to the District Court for purpose Coleman; defendant, said execu- Dewey Eugene date of the ecution where he county the sheriff of the tion to supervised 46-19-103(3) If defendant or defendant’s MCA. tried. Section wish, other similar Mon- he submit list of may counsel should pur- us review for request comparative he may tana cases that *31 within the poses, time provided for and as a part any petition for in this rehearing cause.
MR. CHIEF HASWELL and HARRISON JUSTICE JUSTICES and DALY concur.
MR. SHEA dissenting: JUSTICE
I refuse to the death would allow to be In its penalty imposed. decision, first this Court indicated that the death clearly penalty Court, moreover, was not to be considered at the This resentencing. has reached into of retroactive statute unfairly application per- mit the death penalty again imposed. Finally, assuming that the arguendo court could the 1977 properly apply crimes, statutes to the 1974 did penalty it not properly apply law, nor did this Court its review properly perform mandatory duties under the 1977 statutes.
After defendant had entered his of not to count I pleas guilty (deliberate homicide), count II and count (aggravated kidnapping), (sexual consent), court, III intercourse without of its own mo- tion amended the aggravated kidnapping charge by adding following language: “the alleged actions resulted defendant in the death Lee Harstad.” Defendant Peggy objected such amendment, but to no avail.
The case was then tried and submitted to the on all three jury counts, and the was verdict jury given general forms on each court, count. But the trial because of its own amendment of count II, also submitted a verdict special to the special interrogatory if jury “resulted in asking aggravated the death kidnapping Lee Harstad.” The Peggy jury, addition to returning guilty counts, verdicts on all three answered the special interrogatory the affirmative that the “resulted in the aggravated kidnapping death of Lee Harstad.” Defendant also had to the Peggy objected submission special interrogatory jury.
In the first Coleman this Court ruled defend- appeal, against II, ant As on both issues. to the trial court’s amendment of count after defendant’s and over defendant’s this plea, objection, Court than substance of form rather amendment one
held that the was seeking aware that State defendant was at all times because However, 732). (Coleman, at 579 P.2d the death penalty. to the amended of its in relation holding then the crux stated information: event, no resulted from the amendment prejudice"
“In any legal Montana’s death of Count II in the of our that light holding P.2d 746. as it in 1975 is unconstitutional.” 579 statute existed did believe This indicates this Court language clearly case the District Court remanded to being that upon would be by apply- resentencing reimposed crimes. ing the statutes to Moreover, the first Cole- of this Court’s opinion the language submission of the special interrogatory man appeal concerning *32 Corut ruled that the leads to the same conclusion. This to the jury did not under- special interrogatory the-jury submission also submitted to the P.2d jury. mine the verdicts general issue, But, is on this the crux of this Court’s again, holding 751. stated as follows: event, statutes our on Montana’s death holding penalty
“In any 579 P.2d at of error renders this specification nonprejudicial.” 751. of the amended information and questions
These on the holdings are clear in- special interrogatory jury, submission of the Court did not believe that defendant would dication that this death his These penalty upon resentencing. holdings, subject moreover, directive the District that capital are clear But, of was to be eliminated from its consideration. punishment course, death was the desire of the District Court to inflict the was it chose to in- if there therefore way possible, penalty any decision otherwise. this terpret death, conclusions, dated and order of judgment,
In its findings, 14, 1978, it considered to summarized what the District Court July the first death this holding overturning be the essence of Court’s (I was a foregone summary that its parenthetically, sentence. note conclusion, 2, for on the same as the day remittitur of June Court, this Court arrived at the District it set out an order to counsel for sides both could be carried out pur- statutes.) suant to the 1977 death In penalty event its legal posi- tion revealing:
“. . . The Court limited its decision on the death overturning to the absence of penalty procedural requirements allowing trial court to consider any circumstances in its mitigating imposi- tion of under the penalty unconstitutional death penalty statute. .. . . .
“. The statute as amended declared unconstitutional in case, but the Supreme Court remanding did resentencing declare specifically the trial court could or could not impose if the death Coleman penalty. that since the argues mandatory unconstitutional, statute was declared Coleman cannot be sen- tenced'to death under laws enacted after his conviction. (Emphasis added.)
“The Court at 11 of Supreme its indicates page opinion that if had been under imposed proper safe- procedural guards, sentence would have been upheld. The Court states: “ ‘To have valid death constitutionally the United penalty, States Court has Supreme established certain necessary procedures. (Citations.) None of these required are procedures present Mon- tana’s death statute as it existed in nor were they pro- added.) vided otherwise in this case. Thus (Emphases defendant’s court’s.) sentence cannot stand.’ is the trial (Emphasis *33 “The emphasized the language strongly suggests sentenc- if had court observed ing declared procedural requirements by recent decisions, U.S. the death Supreme would have penalty been upheld notwithstanding Montana’s law was mandatory un- added.) constitutional. (Emphasis 95-2206.6,
“The later enactment of sections seq., et out spelling should not procedure, operate to take the court’s away power impose under penalty proper procedural safeguards. The an under Montana Constitution operative death is fact R.C.M.1947, 95-5-303, and are not to ignored and section a and other because effective statute is procedurally abrogated argued by are substituted therefor. As State from statutes case, the defendant is afforded Dobbert the circumstance that sec- utilization the trial court’s protection by greater procedural 95-2206.6, ex et does fall within the seq., prohibition tions not laws. facto post a sentence is in the trial court in now pronouncing
“In summary, developments sentencing pro- to utilize the interim position and the as in recent U.S. Court decisions Supreme cedure reflected enacted in thereto.” response Montana statutes and entered its listed conclusions findings The court then its to death for the second time. defendant sentencing order milked the decision majority court obviously The sentencing allow in order arrive at decision that would much as it could True, did ex- this Court of the death penalty. reconsideration the death penalty Court to eliminate direct the District plicitly decision fair of our on reading from its consideration. But inter- special jury information and of the amended questions leads to that conclusion. rogatory would original court concludes its to allow the defend- been if it had the only foresight
have approved at a hearing. ant to circumstances mitigating presentence present Court, District is this only misreading opinion Not would not have that such been approved. but it is clear procedure must the statutes themselves provide presentencing For As I mitigation. evidence aggravation hearing permitting in State v. dissent statutory requirements my covered 1266-1277, it 177 Mont. 581 P.2d McKenzie requirements no useful set forth these again would serve purpose is sufficient Court. It Supreme as mandated the United States that the mistaken. sadly District Court say It is clear that the trial equally interested in ap- to the facts of case Dobbert and that did not consider plying
341 Constitution, ex either the in the Montana or post provision facto 12-201, R.C.M.1947, the statutory directive of section pro- which hibits retroactive any of statute unless it is application specifical- admit, however, ly for in the I provided statute. must am that I even more amazed by the majority’s of these laws to application the of facts this case. It is a clear demonstration what of can hap- the pen when law 'is not allowed to in the of get the result. way It is unfortunate indeed that the has lock majority join chosen to Court, the with United States step Supreme only in inter- United States Constitution. The reference ma- preting makes to the ex of our jority post provision own Constitution facto is sets where it forth issue raised the defendant: by
“The issue we next with which are confronted is whether ex post in the provisions federal state constitutions or facto (sec- codified rule of statutorily construction against retroactivity 12-201, R.C.M.1947, MCA) tion now section 1-2-109 prevent ap- plication statutes in 1977 enacted to this defend- (State Coleman, Mont., 1010, 1979.) ant . . .” v. 605 P.2d The statement of the issue‘in this way constitutes forewarning — that all issues are to be decided going one standard stan- by dard set forth the United States Court in v. Supreme Dobbert Florida 422 U.S. 53 S.Ct. L.Ed.2d 344. Why consistently Court refuses to more substantive give meaning and protection to our own provisions constitutional opposed Constitution, given by United States I cannot understand. States Supreme United is not the sole all repository wisdom. Nor can beit the final on the authority interpretation the Montana Constitution. we must accord every all which are
Though right to people they Constitution, entitled under the United States there nothing which us from them even fundamental prevents according more II, protection under own our Constitution. Article Section Montana provides: Constitution
“No ex law law nor post obligations impairing facto contracts, or irrevocable making any grant special privileges, immunities, (Em-
franchises, shall be passed legislature.” added.) phasis passed by I would hold that no law provision,
Under this crime, whether after the commission legislature *35 or ameliorative can merely procedural denominated substantive or death, a if the statutes applicable be to sentence of applied permit crimes, constitutionally of commission were the time of deficient, would not of imposition hence permit (and must be included in judges The frailties of mankind penalty. reference) a be subject are such that man’s life should not in a retroactive interpreting mischief inherent ap- hair-splitting the law. of plication decision, we declared the calling
In the
provision
Coleman
first
a
of the crime
execution in the event of conviction
mandatory
death,
to
be un-
the victim’s
to
leading
of aggravated kidnapping
statutes then ex-
Nor a section interpreting defendant the benefit of doubt give MCA). 12-201, (now falls That section 1-2-109 R.C.M. section which are the rules construction containing within the chapter 12-201 pro- State of Montana. Section to all statutes apply vides: Mon- statutes in of the codes or other law contained
“No added.) (Emphasis so declared.” is retroactive unless expressly tana is that the 1977 of this statute reasonable interpretation The only if to the defendant statutes can apply death were to have statutes declared that these expressly legislature declara- a lack of is there total express effect. Not only retroactive to be retroactively ap- statutes are 1977 death penalty tion that the even in- plied, but there no room that the imply legislature (See tended them have retroactive effect. sections 95-2206.6 95-2206.15, R.C.M.1947, 46-18-301 now sections through MCA). 46-18-310 The statutes contain directive for through no retroactive application.
This statute retroactive acts prohibiting legislative application does distinguish between retroactive application pro- cedural or retroactive statute is con- statute application sidered substantive. It of any retroactive prohibits application — — statute unless it is declared” to have period “expressly retroactive This business of application. hair-splitting distinguish- and a law ing between substantive law must procedural stop when a life man’s in the balance. literally hangs
This
has
also
case
ignored fundamental
law previously
adopted by this Court in interpreting section 12-201. Because it is a
rule of construction
applies
which
to all statutes enacted by the
will
legislature, it
not be given retroactive effect unless
so
expressly
declared.
ex rel.
State
v.
Whitlock
State Board
Equalization
*36
(1935),
72, 84,
100 Mont.
The death statutes enacted in penalty 1977 were not expressly declared the to-be retroactive in legislature application. therefore, statutes are It is silent. that presumed they were intended to operate only Other an than emasculation prospectively. them,
law there is no that this Court should have way declared fiat, essence to by judicial operate retroactively. Section 12-201 Whitlock, prohibits such interpretation; solidifies this supra, statute; Dixon, supra, clearly establishes reasonable every doubt should be of a against resolved retroactive application not statute. If there are reasons in a death legitimate policy penalty to case a resolve reasonable doubt retroactive against application life, in order to save I man’s cannot conceive of another instance where such reasons would exist. policy By suspending operation 12-201, and effect of section this in- Court has inflicted grave — the defendant one that can never be justice rectified. upon Court, moreover, as is, as well which this There another statute court, its decision. Section trial totally ignored reaching MCA) 1-2-201(1) 43-507, (now provides: section R.C.M.1947 therein, statute, takes time unless different prescribed “Every its passage ap- first day July year effect on the proval.” (sections through 95-2206.6
The death statutes penalty 95-2206.15) date. Accordingly, time as an effective no provide majority ignored 1977. July were effective as of they Though statute, avoided would have it does that somehow they this appear But, least case. owed they its to the defendant’s application defendant an explanation. it was 1977 death apply
Conceding arguendo proper crimes, clear that it is still abundantly statutes statutes, and that this failed to follow the the trial court review mandatory under the failed fulfill its functions statutory also, the reasons death penalty the statutes. For these provisions be allowed to stand. should not with perspective
To proper second place the first surrounding I to the circumstances first sentencing, digress death of the first the imposition as are they pertinent trial insofar sentence. mandatory in- called for the statutes kidnapping
The aggravated kid- result of the if victim died fliction of the R.C.M.1947.) 94-5-303, 94-5-304, (Sections Origi- napping. (the ag- II of the information did in Count allege nally State *37 as a died result the victim charge) that kidnapping gravated and over his plea, had entered the defendant But after kidnapping. motion, court, amended on its the trial own objection, defendant’s kidnap- died as a result of the the victim also that allege II to Count case, As so ping. often is the this Court does not know why trial this, court did but it appears that it believed that the lack of this allegation would be fatal to the aof death if imposition defendant was convicted of aggravated The trial kidnapping. followed up a allegation by submitting special interrogatory jury, asking to determine whether or not the a victim died as result of the In kidnapping. addtion to a returning general verdict to the guilty charge aggravated kidnapping, jury — answered the is, special in the interrogatory affirmative that the victim did die as a result of the kidnapping. The state was then set for the imposition of the mandatory penalty.
Based on the amended information and the jury’s answer to the special court, interrogatory, the trial without ordering presentence investigation, without holding presentence hear- ing to permit presentation evidence as to aggravation mitigation, sentenced the defendant to death. I add here that the then statutes existing did not require presentence investigation Indeed, presentence so, hearing. it would have been useless to do because the statutes required the imposition of the death penalty, to the pursuant amended information and the answer jury’s the special all that interrogatory, remained was for the court to im- pose required death It was penalty. this imposition of the man- death sentence datory that this Court declared unconstitutional in the first Coleman 579 P.2d appeal. at 741-742.
It is fair to say the extraordinary activities of the trial court amending information and in submitting inter- special rogatory at a jury, suggest minimum that he had more than an interest ordinary setting for the eventual stage imposition of the death penalty in the event of a conviction on the count of ag- then, gravated This state kidnapping. of mind of the as he sentencing judge again to sentence the defendant prepared after the Coleman appeal. first
It is to set forth the revealing background how the set judge second of the death for the up imposition defendant. This Court decided the Coleman case on April first *38 346
1978, until was turned down and the for rehearing petition meantime, 30, ac- court was sentencing 1978. But in the May (with 2, 1978, all sent to he entered an order copies tive. On May record) be returned defendant was to immediately counsel of that in- and held there pending presentencing to the Custer County jail did not judge simply sentencing. sentencing vestigation been returned to him after until the case had bother to wait rehearing. denial of defendant’s petition 2, 1978, sub- report investigation On the presentence June that the sentenc- with the notation in the report mitted to the court from the some awaiting legal papers “is still type ing judge be set until such papers will not sentencing Supreme arrive.” 2, same for on arrived that day, the papers
Apparently June all counsel of record sent out an order to court sentencing 14, 1978 in take on would hearing place that the sentencing June Courthouse, be con- would hearing and that the County the Custer 95-2206.11, 95-2066.6 through with Sec. ducted “in accordance statutes). (the R.C.M.1947, It ap- 1977 death penalty as amended” sentencing judge had kept this that the prosecution from pears Supreme the United States law from developing well abreast of the Court, 92 S.Ct. 432 U.S. v. Florida Dobbert namely, dissent discussed in this previously L.Ed.2d 344. I have ex provision ignored post that the trial court the point facto Constitution, of our statutes. and section 12-201 the Montana inception from With the decision of statutes, we are now in death penalty the 1977 it would apply statutes, through sections 95-2206.6 examine those position (now 46-18-301 95-2206.15, through sections R.C.M.1947 (now sections 94-5-303 MCA) 94-5-102 and and sections 46-18-310 MCA). 45-5-102 and 45-5-303 95-2206.6, statutes, that if there provides section
Under the be im- may potentially which the death penalty is a conviction a mandatory presentence must conduct sentencing judge posed, circumstances any statutory aggravating determine if hearing exist and if cir- under section 95-2206.8 any statutory mitigating cumstances exist under section 95-2206.9. The scope hearing is set forth in section 95-2206.7: — be In the may evidence that received.
“Sentencing hearing evidence as to matter the any sentencing hearing, may presented sentence, but not limited including court considers relevant to crime, and circumstances of the the defendant’s to the nature condition, character, mental and background, history, physical of the penalty. other facts aggravation mitigation *39 to have force may evidence the court considers Any probative received of its under the rules regardless admissibility governing admission of evidence at criminal trials. Evidence admitted at the circumstances shall trial to such or relating aggravating mitigating be considered without it at the reintroducing sentencing pro- The state the defendant or his counsel shall be ceeding. per- mitted to for or sentence of death.” present argument against later,
I note in and I will this that an respect, develop point did not in fact take The evidentiary hearing State place. presented no evidence in content that the aggravation, apparently sentencing court later find would that the victim died as result of the kidnap- But neither did the defendant evidence. He did ping. any present stand, behalf, not take the witness nor did else in his nor anyone was evidence in his behalf. Other than any documentary presented the trial the court had transcript, only sentencing background was contained in the presentence investigation report. circumstances are set forth in section
The statutory aggravating 95-2206.8: circumstances are circumstances. Aggravating
“Aggravating following: “(1) and was committed by was deliberate homicide The offense the state prison. a sentence of imprisonment person serving “(2) and was committed was deliberate homicide The offense of another been convicted previously a defendant who had deliberate homicide.
“(3) The was offense deliberate homicide and was committed by means of torture.
“(4) The offense was deliberate homicide and was committed by in wait or ambush. person lying “(5) The offense was deliberate homicide and was committed as which, aof scheme or if part would result operation completed, in the death more than one person.
“(6) (l)(a) The offense was deliberate as defined in subsection 94-5-102 and the victim was a officer killed while peace perform- his ing duty.
“(7) The which resulted in aggravated kidnapping offense added.) the victim.” (Emphasis (which (7) is empha- subsection For of this case only, purposes sized) subsec- of fact as to findings In written specific important. (6) (1) that the found properly tions through facts of this case. did apply circumstance aggravating in section are set forth circumstances The statutory mitigating 95-2206.9:
“(l) criminal history prior has no significant defendant activity. under defendant was
“(2) while the was committed The offense *40 disturbance. mental or emotional influence of extreme the under the “(3) duress or acted under extreme defendant The person. of another substantial domination the “(4) criminality to appreciate the defendant The of capacity lawof requirements to the his conduct or to conform of his conduct impaired. was substantially or defendant’s conduct
“(5) in the victim was participant The act. consented committed in an offense
“(6) was an accomplice defendant The minor. relatively and his participation another by person, crime, the defendant, of “(7) time of the commission at the age. of years was less than “(8) Any other exists in (Em- the mitigation penalty.” fact of added.)
phasis (both (1) (8)
For of this case subsections em- purposes are an The trial court found absence phasized) important. properly (2) (7) listed of circumstances in subsections mitigating through and entered as the specific findings to each existence of negating as circumstance. But I will later the sen- mitigating develop, tencing court the law in totally misapplied relation subsection (1), and failed to the existence other fact negate of exists in “Any (8). of the as mitigation for in subsection penalty” provided Explicit existence or nonexistence of findings ag- circumstances, or gravating circumstances are man- mitigating dated section by 95-2206.11: “Specific written In findings each case which the court fact. of sentence, determination of court shall be
imposes by written as to supported specific of fact findings existence or of each of circumstances nonexistence set forth in 95-2206.8 and 95-2206.9. The written be fact shall substantiated findings (Em- the record of the trial and the sentencing proceeding.” added.) phasis
The statute enacted to supposedly guide the court in decision as this to whether or not to death sec- impose penalty, 95-2206.10 tion provides:
“Consideration aggravating deter- mitigating factors sentence. In mining determining whether to sentence of impose the court shall take imprisonment, into account the ag- circumstances enumerated in gravating mitigating 95-2206.8 and 95-2206.9 and shall impose sentence death it one if finds or more circumstances aggravating that there are and.finds no mitigating sufficiently circumstances substantial to call leni- If the court does ency. sentence death and impose one of exists, circumstances listed aggravating in 94-2206.8 the court a sentence or for may impose imprisonment for life term added.) authorized defining (Emphasis statute offense.” statute, Under a death penalty cannot unless imposed *41 if is at least one there is at least one factor. But there aggravating factor, the to require sentencing such it does not aggravating Rather, sentencing all to factors. the any weight mitigating at give discretion, court, wisdom, is per- its infinite untrammeled fac- sentence if he finds at least one aggravating mitted to to death a state is tor and thousand factors. All he must mitigating call for leni- factors are substantial to sufficiently “not mitigating statute, a defendant is at the totally mercy Under this ency.” it to to court as to what if chooses weight, any, give sentencing a defendant factors which save may factors. mitigating the sentencing from the are the identity judge death penalty he whether or not should impose his attitude about personal roulette for the game than of Russian This worse penalty. see even to turn the cylinder defendant does not chance get judge which he draws. event, scheme under which statutory the above is the
In conclusions, on judgment, order and entered his findings, judge conclusions, 10, his findings, 1978. But before discussing July the fact commission surrrounding order and judgment, reasons, for the for several but primarily are crimes important ac- of defendant’s show the involvement deep reason that they crimes, Nank, and yet facet Dennis in every Robert complice, state are The facts I here the death penalty. has avoided Nank 2, 1978, which on filed report from the taken presentence June filed November brief on appeal, turn taken from the State’s were in presentence verbatim from quote Court. I with this investigation report: ain Dewey sitting park he and Coleman were July
“On and made financially were destitute They Montana. Roundup, they where sold home burglarize Roundup [stole] decision and, I buried the same. rifles, Roundup airport [As several demonstrate, on this in trial court relied improperly later will that, they decided because Coleman They death.] low for on on gas motorcycle were destitute financially them necessary which were would they traveling, *42 someone and to burglarize else kill them to the evidence. As destroy east from to they proceeded Nank’s Roundup Forsyth, motorcycle Vananda, ran out of five miles west of Mon- gas approximately tana. but were refused an They attempted hitchhiking, elderly to who determine what was matter. stopped This oc- couple thereafter, curred about 10:00 o’clock P.M. Miss Harstad Shortly a offered the ride and pair continued down U.S. 12. At a easterly Nank, location about nine miles west of where next Forsyth sitting Harstad, to Miss turned off the for the and steered the key ignition to a car Nank held the while drove stop. girl Dewey Coleman vehicle back to their was motorcycle which out of They gas. picked their helmets and a up motorcycle used to tie rope luggage motorcycle east down again proceeded U.S. 12. North Vananda, about a half mile from the the two highway, attempted sexual intercourse with Miss Harstad. her Coleman Despite pleas had intercourse with her. was She at menstruation the time. intercourse, Nanks also but attempted failed because of a lack of erection. Nank did assist in Miss Harstad while Cole- penal holding man had intercourse and also his desire to stroke Miss gratified Harstad’s feet. sexual intercourse Following tied Miss they Harstad with a and traveled in her vehicle her rope with through Forsyth Rosebud, Montana and returned west from Rosebud to Forsyth. West of Forsyth crossed they bridge over the Yellowstone River east down a proceeded again dead end road on the north side clothed, of the river. Nank carried the now from girl, the car towards an abandoned Milwaukee Railroad and across the Depot shoulder, railroad tracks. While Nank held the over his girl Cole- man came from behind his silver helmet swinging motorcycle the chin and crashed it strap Miss Harstad’s skull. against Nank her to the dropped ground Coleman hit Miss proceeded Harstad several more times with the helmet. Since she was not dead, two attempted her with Then strangle Coleman rope. dead, alone was attempted strangulation. she the two Thinking carried her down the embankment in seclusion of trees and heavy brush and threw her into of water puddle which caused by However, Yellowstone River. overflowing had young lady
not and she stood in the water. At this both Nank expired up point, and Coleman went into the water. Coleman held her lower body ” (Em- under water until she and Nank held her head was drowned. added.) phasis concerned, these facts far as the record is from
So sentence. The find- again imposed sentencing factors which entered and conclusions are devoid of other ings the decision of the court. into 1978 sentencing hearing? What did happen June did and the defendant no evidence aggravation; State presented documen- other or testimony, present himself testify present call the tried unsuccessfully evidence. The tary prosecution stand. Before the conclusion of pro- defendant to the witness however, the investigation report on that ceedings day, presentence *43 an court and made official filed by sentencing formally an to ex- Each was given opportunity of the record. party part the report, and officer who prepared amine the parole probation declared attorney formally each declined. The prosecuting but that, to any have any objection read the and I don’t report “I have in the of the material report.” of the on one portion the court commented hearing,
During defendant’s criminal in relation to investigation report presentence of this com- the importance and I will later develop background, court; of the sentencing to the eventual findings ment in relation investigation “. . . The of it presentence significant part [the circumstances, that the defendant relative to mitigating report] (Em- to this any felony charge.” never been prior has convicted of added.) phasis evidence, it was formal neither presented that
Being party through to the court would present that the parties also agreed and mitigating to be aggravating what considered they their briefs circumstances, would that the prosecutor It appeared respectively. conclusions, but that the de- and findings also present proposed he would proposed whether or not present indicate fendant did not however, that he question, There is and conclusions. no. findings knew he was to do given right so. The 1978 presen- June was then tencing hearing The next time adjourned. the parties would meet again in court was July when the sentencing came judge to court with his sentence of death in hand.
This Court does not have the briefs that were between exchanged and parties the court from the time of the June and presentence the date set hearing for the Nor do we sentencing. have the proposed findings conclusions submitted to the court prosecutor. 10, 1978,
On July came to judge court with conclu- findings, sions, execution, and order of judgment, As a already prepared. however, the formality, sentencing permitted defense counsel (and the to make prosecutor) final arguments and for against concerned, Insofar as penalty. the defendant is this situation can be likened to final permitting arguments to jury after had returned jury with its verdict. Defense counsel did ask the court to consider matters contained in the presentence investigation report, the fact that including defendant did not have here, criminal previous record before the crimes particular the crimes committed were totally inconsistent with his previous Falls, behavior as established residents in Great Mon- tana, who had known defendant for some time. He also asked the Nank, court for leniency because who was an admitted accomplice defendant, had committed the same crimes as exactly de- fendant, but evidence, through plea bargaining state’s turning was not He given also penalty. argued defendant was treated being equally by either the prosecutor or the court *44 black, because he was argued the judge’s orchestration of certain matters the first trial showed during his prejudice. Moreover, defendant maintained his innocence again of the crimes.
It was clear that the clean record of the defendant before here, crimes involved bothered the court. sentencing Not that court wanted to show record, because leniency of the clean but that the court did not know how to handle the matter. Eventually, the fact had just
court rationalized defendant’s situation to the that he of any never been convicted previous felony: “. . . The one circumstance is that the has mitigating defendant to this been convicted but in view the felony, time prior of of committed, the crime and the Court’s that this enormity feeling of cir- one circumstance does not overcome the aggravated cumstances, effect, to this findings I have made written findings I required judgment law. Also have made conclusions furnished defendant and the state at this which have been to the time, will and I at this time read the Court’s conclusions added.) .. (Emphasis judgment statement, court made this for the After the stated sentencing record, written record that it would not read its into the findings its into the but would read conclusions and simply judgment — was sentenced to Before ap- record defendant death. whereupon court, for to this defendant court sentencing pealing petitioned sentence, but turned down. Automatic reconsideration followed, sections to this Court appeal pursuant provisions (now through 95-2206.15 sections 46-18-307 through 95-2206.12 MCA). 46-18-310 the sen- crucial issues relating some discussing
Before itself, justification memorandum the trial court’s tencing reconsideration, revealing. down defendant’s petition turning contended, that: de- other things defendant among In this petition, court sentencing had to present argument fendant right death, was denied because sentence of and that right before the when the its of execution prepared had order already the court counsel to make his allowed defendant’s formalistically court failed to take the court had sentencing presentence arguments; account; the court had in sentencing into investigation report criminal conduct found defendant guilty previous essence Nank he and testimony on the uncorroborated relying Montana, and stole Roundup, home in had burglarized defendant here; rifles, and that as the crimes involved day on the same some treat- the favorable totally failed consider *45 to who had the same for ment Nank admitted crimes which given defendant stood convicted. its order the July
In for denying petition reconsidera- sentence, of the the trial failed to tion mention these and seemed to its order on its arguments, ground conclusion that defendant was old arguments already merely rehashing presented. the order for But is what it about cir- revealing says mitigating cumstances: 14, 1978,
“A was conducted on pre-sentence hearing at June which time and his were defendant counsel an given opportunity any matter in but present mitigation, declined to take defendant witness the stand and to otherwise evidence present any failed mitigation.
“The court then its and prepared findings conclusions based the upon circumstances known to the aggravating mitigating set, A court. for was day sentencing then which counsel time for defendant a discourse on gave matters previously presented by brief trial court on the quash, motion to and to the Supreme on the appeal. “Coleman at the sentencing hearing given opportunity choose, he present any mitigating circumstances but de- might so, clined do which Lockett distinguishes from the instant case. case, than the Other mention Lockett oral argument final counsel the petition raise no new rehearing defendant’s matter not considered court at the time previously the trial’s court’s findings conclusions. preparation of “Now, Therefore, It Is Ordered that the petition for rehearing added.) denied.” (Emphasis
The undeniable fact other than circumstances of itself, crimes the trial divulged information of record court had before sentenced defendant sentencing death, But, was the presentence investigation report. defend- with the report, exception
court totally ignored ant’s criminal background. following contained the investigation presentence report (a) (b) Official Version History; Criminal
subject headings: *46 Crime; (c) and Description Defendant’s Version of Physical Crime — (of section references and Condition the defendant this includes defendant; (d) to several tests and profiles psychological (e) Educational and Vocational and Social Family Background; (f) (h) and History; History; Summary Marital History; (g)Military when the immediately A sentence of death is suspect Conclusion. con- in of that sentence are devoid of findings entirely support than the circumstances of the commission of siderations other defend- did the court refer to the sentencing crime itself. Not once almost like the sentencing ant’s It is history background. cer- an object, entered an for the extermination of inanimate order being. not a human tainly living, breathing no court and the majority provide Since opinion as to I believe it is to do background, facts defendant’s imperative record, source so. I take from there is background the-only the presentence investigation report. 1946, man, 26, in a born October black
Dewey Coleman Missouri, were nine a and housewife. There of boilermaker the son fourteen, he ran the age in his At family. brothers and sisters home, Missouri. He but some later he returned to from time away 1964 and school His father died in from in 1964. high graduated 1975, four January died in 1972. As of his mother were him to alive. He apparently and sisters known by brothers his that time. with since family has had no contact He was he was in the United States Navy. From 1965 to active very shortly 1969 but recalled to discharged duty in and was involved attained the rank of E-5 primarily thereafter. He he received approx- work. this time also in clerical doing During cor- through imately junior college two education years Navy his from the discharge courses. He received respondence 1973 and is on disabled apparently classification as a result of service-connected activity. Falls, Montana,
In he came to Great because he part wanted to remove himself from the scene. He had used drug drugs on off since the of 12 or 13 when he and young age his friends smoked that was marijuana wild near his home in growing cocaine, Missouri. He later became involved with am- using and heroine. phetamines Falls, Montana, his arrival in Great
Upon he became in- actively volved with Opportunity action low Incorporated, community income coalition of individuals who worked for welfare rights the betterment of low income While associated people. with Op- he became portunity Incorporated founder and president of (Low Coalition). L.I.N.C. Income He Neighbors helped organize Christmas for low income in the Great program youngsters Falls area, and the time and initiative provided several get projects before he left in developed 1974 for the Veteran’s May Hospital Sheridan, Wyoming. *47 determined,
Insofar as can be defendant had never been con- Indeed, victed a of even misdemeanor he has not even been charge. arrested for offense. The any officer parole probation spoke Coleman, with several individuals in Great Falls concerning he stated in his report:
“This writer with several individuals associated spoke with the and familiar with his subject work in the Great Falls area and that I talked with was everyone of this individual’s complimentary work and viewed with some disbelief the crime this individual has committed.” arrest,
After his several persons performed psychological testing defendant, of and their from such determinations diagnoses ranged as paranoid schizoidal schizophrenia; brain personality; organic reaction; syndrome; a depressive with patient passive-aggressive disorders; personality; aggresive personality reac- depressive Neurosis). tion with anxiety (Depressive defendant, the above is not of the I
Although profile complete 358 can be that
have some so shown background provided of court are barren of considerations sentencing findings which were findings defendant’s circumstances. The personal We at guess made are court. cannot meaningless reviewing individual cir- how the court evaluated defendant’s us will not cumstances. United States Constitution permit guess. 2726, 238, (1972), 408 33
After v. U.S. S.Ct. Georgia Furman decided, a states 346 was great many responded L.Ed.2d The 1973 death statutes. penalty decision by enacting mandatory of statutes allowed a consideration cir mitigating Montana cumstances, of but statutes eliminated consideration the 1974 circumstances, man thereby making penalty mitigating However, in statutes. certain situations datory specified a series cases later decided in United Supreme States unconstitutional. v. North are Woodson mandatory penalties 944; 2978, 280, (1976), 96 S.Ct. L.Ed.2d Carolina 428 U.S. 584, 2861, (1977), 53 L.Ed.2d Coker v. 433 U.S. S.Ct. Georgia 633, 1993, 982; 97 S.Ct. and Roberts v. Louisiana 431 U.S. that this Court in 637. on the basis these cases 52 L.Ed.2d It death penal case declared Montana’s mandatory first Coleman (1978), 177 to be State Coleman statute unconstitutional. v. ty 579 P.2d 741-742. Mont. course, Woodson, to this stated applies,
What the Court case: re- . Amendment humanity underlying Eighth
“. . respect and record the individual of the character quires consideration the process constitutionally indispensable part ... as offender Carolina, v. of death.” Woodson North of inflicting at 96 S.Ct. 2991. 428 U.S. the time declared 1974 death
By this Court had (1978), the 1977 had statutes unconstitutional legislature *48 enacted new death statutes in to Wood response already son, Roberts, and in v. response Coker Gregg Georgia 153, 2909, 859; (1976), v. 428 U.S. 96 49 L.Ed.2d S.Ct. Jurek
359 262, 2950, 929, (1976), 49 L.Ed.2d. Texas 428 U.S. S.Ct. (1976), v. 49 L.Ed.2d Florida 428 U.S. S.Ct.
Proffitt 913. In the court held that the decision to the death impose Gregg, must be: would standards so that the
“guided by
sentencing authority
circumstances
the crime and the
on the particularized
focus
added.)
v.
atU.S.
(Emphasis
Gregg Georgia,
defendant.”
Any of the com- consider not the circumstances only must quirements crime, but also the circumstances of the mission of the particular defendant. individual statutes allow that the 1977 death penalty
Though appears of the crime of the circumstances consideration particularized defendant, I shall well as individual circumstances of the court failed sentencing demonstrate from the record that the of the defen- consider and evaluate the individual circumstances the minimum dant. the death sentence cannot Accordingly, pass standards established the United Court. Supreme States an at- scheme enacted the 1977 legislature
The statutory with the demands of It to con- tempt comply Gregg. attempts circumstances of the crime sider both the “particularized defendant.” 95-2206.8 relates circumstances Section — is, under which circumstances aggravating crime merit a consideration of whether has deemed should legislature are As far as the facts concerned or not to impose penalty. case, with one cir- aggravating in this we are concerned only deter- as the cumstance set forth in subsection did not exist mined circumstances aggravating specifically (6). (7) (1) pro- subsections Subsection remaining through under vides: 95-2206.8 circumstances are
Section Aggravating following:
“(7) offense was which resulted in kidnapping The aggravated the of the victim.”
To the death at least one cir- aggravating impose must be to exist under the scheme. It statutory cumstance found case, and to exist in this therefore the court sentencing found of crossed first hurdle the the death allowing penal- the imposition ty- set required circumstances to be considered are forth
Mitigating (I 95-2206.9, have which contains subsections. eight section (2) set forth this statute in its entirety.) Subsections previously (7) are concerned with circumstances sur- through mitigating is, not the crime itself. That do in- they the commission of rounding of circumstances the particularized volve consideration The court sentencing defendant as to the crime itself. opposed of entered the existence findings negating any mitigating specific (7). (2) circumstances under subsections through sentencing court, however, (1) (8). either or failed to with subsection comply (1) (8) individual involve consideration the Subsections the defendant was not con- defendant himself. Because individual sidered, have not been met requirements the minimum of Gregg vacated. and the must be sentence (1) the defendant’s requires past the court to consider Subsection (8) requires as his Subsection as far involvement crime. history the defendant to consider other factor any concerning court as to whether decision-making process that be relevant in the may the statute: again I from impose penalty. quote or circumstances are Mitigating circumstances. “Mitigating the following:
“(1) history criminal The defendant has no significant prior activity. (Em-
“(8) penalty.” other exists in Any mitigation fact 95-2206.9, added.) R.C.M.1947. Section phasis of duty is mandatory As I have previously explained, statutory both findings ag- to make specific sentencing judge circumstances circumstances. gravating statutory mitigating Moreover, 95-2206.11, R.C.M.1947, section requires findings be made as to either the existence or of each absence aggravating circumstance. This on mitigating duty imposed sentencing court of what regardless evidence have been introduced may (1), parties presentence In case of subsection hearing. emasculated the record and the law. In case of subsection is an there utter failure to show affirmatively the individual circumstances of the defendant were considered.
How did the court handle the factual sentencing determination of whether defendant had a of “significant criminal history prior I have the activity?” quoted court previously sentencing wherein he that he was acknowledged shall we perplexed annoyed say, that defendant no had record. one previous But clue is provided by the statements of the court that he sentencing simply only that defendant acknowledged had no record a previous felony of conviction. the Somehow court had to sentencing establish that the defendant awas bad before he committed the person aggravated and therefore was kidnapping, We thus arrive beyond redemption. at the on this vital issue. findings Nank, the trial defendant’s Robert Dennis
During accomplice, here, testified that on the same of the crimes involved both in- day Montana, dividuals a home in burglarized stole some Roundup, rifles, and later buried them near the No one else Roundup airport. testified these facts and neither was there corroboration evidence — rifles, of this for of the etc. But testimony example, recovery this Nank was the to the court’s testimony by key sentencing ap- (1) to subsection of section 95-2206.9. proach findings Though convoluted, are of the effect the defendant did findings have a criminal “significant history prior activity.”
We first to the as to defend- go presentence investigation report ant’s criminal background: records indicate the
“FBI has been found subject guilty Homicide, Deliberate Aggravated Sexual Intercourse Kidnapping, 24, 1974 in Forsyth, Date of arrest: Without Consent. October Montana. in- criminal activities
“The current offenses are sheet sub- the FBI according ever been arrested dividual has records could be mitted to this office. No other criminal found.” added.) (Emphasis crime, the investiga- presentence
In forth facts setting from the and theft of rifles refer to the tion did burglary report course, house, taken from which information Roundup Coleman relating appeal. brief State’s first sentencing on the day sentencing, In its entering findings on the court that it was so based doing testimony stated trial, on evidence at defendant’s based presented on is no all reliance hearing. There reference presentence there was no evidence Because presentence investigation report. fair to that the at the it is conclude hearing, presented presentence on in determin- court relied the trial entirely testimony sentencing the death penalty. whether or ing impose based on testimony Nank’s uncorroborated Accordingly, entirely rifles, as to the house and theft burglary entered the following finding: *51 1974,
“1. on July That defendant Robert Dennis on a which Nank were on road on Nank’s motorcycle journey Veterans began Sheridan Administration Hospital Sheridan, in Mon- and continued various towns through Wyoming, tana, a home burglarized to Montana. The two men Roundup, Montana, 4, 1974, on and stole several which fuly Roundup, rifles (Em- were buried near ...” Roundup Airport subsequently added.) phasis tie it into the court then to this initial finding proceeded
From to determine (1) court sentencing which requires subsection of criminal a “significant history the defendant has prior whether he second concluded: finding in his Accordingly, activity.” “That the has been unable to State means of record prove by checks that the defendant has other of criminal activi- history other ty. criminal act which in the trial record in appears this case is the a home in Mon- aggravated burglary Roundup, of tana, where certain guns were stolen the defendant and Robert by Nank on July By 1974. reason the credit in foregoing, of 95-2206.9(1) allowed mitigation Section is not appropriate added.) (Emphasis defendant.” Without effect expressly stating, legal court sentencing determined that on the basis of Nank’s uncorroborated testimony, the defendant did have a “prior history criminal activity.” First,
This conclusion is erroneous. clearly sentencing had no right establish a “prior history criminal activity” based Nank, who, on the uncorroborated entirely testimony his own testimony, defendant’s the en- accomplice throughout tire Second, events of tragic 1974. July the effect of the finding, stated, although is that defendant expressly did have a "prior history of criminal The acts activity.” used to place blemish on the criminal of the history defendant occurred the same as the day aggravated Nank, and even kidnapping, according were part a continuous course of criminal conduct. This was not legislative intent when it directed the court to sentencing determine 95-2206.9(1) under section if the defendant had a history “prior criminal Events activity.” on the same occurring as the crime day in question establish a hardly “prior of criminal history activity.” Indeed, the conclusion reached here is more as to the revealing of the predisposition court than it is revealing life previous of the defendant patterns in relation to his propensity to commit crimes. The are findings totally unsupported by reasonable construction of the record and of the law. interpretation
Having effectively consigned defendant to the ranks of previous offender 95-2206.9(1) concerned, insofar as section the court then entered the conclusions with following relation aggravation and mitigation:
“The Court concludes as follows:
“1. That the circumstances set forth Section aggravating 95-2206.8, (7) exists for the reason following: paragraph the
“That offense of was committed aggravated kidnapping victim, the and it resulted in the death of the Miss Peggy defendant Harstad. That circumstances listed in Section
“2. none mitigating 95-2206.9, are substantial to call for R.C.M. sufficiently leniency. in this That circumstance mitigating technically present only cause is that the defendant has no record of history prior criminal added.) activity.” (Emphasis determination, when with
This leads in- findings, coupled established a to the conclusion that escapably sentencing of criminal of defendant by convicting “prior history activity” the same him of a theft which occurred on day house burglary (as Moreover, it is the findings op- aggravated kidnapping. conclusions) of purposes to the which are controlling posed 95-2206.9(1) and finding sections 95-2206.11. satisfying “. . . the credit in virtue of the theft burglary Roundup 95-2206.9(1) is not to this de- section mitigation by appropriate of that defendant This is another did merely way saying fendant.” of this have a of criminal Because “prior history activity.” clearly cannot erroneous the death sentence stand. finding, is, moreover, an even reason glaring why There more — failure to adhere to the minimum sentence cannot stand total establish that the standards of record affirmatively Gregg, circumstances court considered not only itself, of . . circumstances . the crime also the “particularized but barren, and the defendant.” the record respect, utterly In (1) of section must be vacated. Since subsection death sentence history to the individual’s “prior 95-2206.9 relates section which can possibly the only remaining criminal activity” the defendant” is . . . circumstances apply “particularized (8) the same statute. It provides: subsection are circumstances Mitigating circumstances. “Mitigating the following: *53 (Em-
“(8) of the penalty.” other fact exists in mitigation Any added.) phasis met, met to be must be they if the demands of are Gregg
Clearly, Otherwise, itself would be un- the statute under this subsection. of the it did not allow a consideration “par- constitutional because of . . the defendant.” ticularized circumstances . a one: Did the sentencing
The we must ask is question simple the defend- the circumstances . . . court consider “particularized sentence, ant” before the decision to death reaching impose so, what or determinations did it make concerning if findings an defendant as individual? a court can tell if the defendant as an in-
The only way reviewing of the dividual entered into decision-making process sentencing court, is if the record and indicate that has in fact been findings cannot, death, We a assume or done. in case sentence of involving that it was done. presume
A court cannot as to whether the reviewing guess sentencing court considered cir- amply weighed “particularized . the is a one: We cumstances . . defendant.” The reason simple Indeed, would that section make might wrong guess. appear and to 95-2206.11 was enacted to eliminate possibility pro- to vide a court with the record review death requisite reviewing sentence This statute in pertinent part: imposed. provides
“. .. the determination of court shall be supported by specific written the existence or nonexistence each findings of fact of the circumstances ... set forth in 95-2206.9 [Mitigating Cir- The written shall be substantiated findings cumstances]. and the
records trial sentencing proceedings.” (Emphasis added.) statute, is to when construed with section 95-2206.9 along
If standards estab- constitutional muster under the minimum pass is that the record must affirmatively lished in then it clear Gregg, the defend- circumstances of . . establish that the “particularized this, court did not do been considered. If the sentencing ant” have sentenc- then the death sentence cannot be to stand. The permitted is to make findings concerning court therefore ing required defendant”, and circumstances of . . . the since “partizularized is are when death im- required only written findings defendant’s in- it must it chose why disregard posed, explain circumstances in determining impose penal- dividual must be examined in light court findings sentencing ty. of these requirements. the sen- e of findings penalty judgment,
In through factors found the absence mitigating tencing specifically (2) (7) (2) (7) of '95-2206.9. through section Subsections through the commission of the crime itself. surrounding relate facts hand, (8) subsection A review- ignored altogether. On the other left in the dark as to whether court is ing entirely *54 circumstances of . . . the even considered the “particularized court there is one reference to subsec- defendant.” In the judgment that is in a all-inclusive general, virtually tion and included umbrella finding: the either in the record of
“That there is no evidence appearing, accorded, hearing or the special sentencing trial held in this cause of the circumstances mitigation finding any supporting 95-2206.9, namely other number Section paragraphs under the (8). is, likewise, (2) no evidence There through paragraphs the in this in this case to mitigate which are operative facts added.) . .” (Emphasis cause of section with the requirements hardly complies This finding 95-2206.11, We learn the demands of certainly let alone Gregg. from that finding. about the defendant nothing that the absence of in this finding court stated The sentencing from the from the trial itself and factors was mitigating gleaned (8) of section as to subsection This hearing. finding sentence conclusions, satisfies the neither of which two 95-2206.9 suggests that because no evidence conclusion is The first demands Gregg. sentencing the sentencing hearing introduced at was the decision of the trial in reaching on record relied entirely the death there is no the trial But evidence in impose penalty. defendant, record as to the individual circumstances of the even more if the defendant’s in- importantly, anything concerning record, dividual was considered a result of the situation trial we what, what have no idea it was. For the record is silent as to if defendant, was considered and concerning evalu- anything, therefore, ated. court did not fulfill the Surely sentencing demands of section or 95-2206.11 the minimum constitutional re- quirements Gregg.
A second alternative is that one can be charitable the sentenc- court and conclude that because the ing presentence investigation made of the record at report officially part presentence hearing, court would be sentencing have made use presumed of it in whether or not to determining impose penalty. in the record of But itself there is not sentencing one reference presentence neither is there a investigation report, direct reference to it in the written on such findings judgment. Again, an matter this Court cannot assume important that the presume court considered and evaluated the sentencing cir- “particularized cumstances of. .. the is defendant.” It either in the record and find- itor isn’t. It isn’t.
ings The result one cannot conclude from either situation that court considered and evaluated the “particularized circumstances of . . . the defendant” before its decision to reaching so, impose This penalty. being death sentence does not meet the minimum standards imposed by and it Gregg, must therefore be vacated. *55 no
There is that the question court failed to sentencing comply 94-2206.9, (1) (7). with sections subsections and Its of the handling issue to defendant’s relating of criminal “prior history activity” The did not reach mockery. the issue of whether a majority criminal “history was established acts com- prior activity” of on mitted the same as the day aggravated It is true kidnapping. issue, did, the defendant did not raise this or if he it was inart- obscured in the broadside attack launched the fully against second nonetheless, the of death but the
imposition it was penalty; duty review, this under automatic Court mandatory determine this issue. true of the court to
The same is of the failure sentencing comply mandate of to consider with the constitutional Gregg “par- than a ... of defendant.” Other con- ticularized circumstances of a criminal as mandated activity” sideration “history prior 95-2206.9(1), R.C.M.1947, that can section section only under “individualized cir- allow for a consideration of the possibly (8) of the defendant” is section cumstances ... subsection Here, failure court to there is a total of the 95-2206.9. this what factors it considered and evaluated concern- show Court that this the defendant I must state issue was Again, as ing person. defendant, it was un- again raised tangentially attack which de- obscured in broadside doubtedly inartfully launched the second penal- fendant against imposition mandated that we review sentence But statutes again, ty. Furthermore, its with the law. determine imposed compliance no alternative for this demands of leave Gregg, Woodson shows con- affirmatively the record to determine if but Court of the ... defend- circumstances of the “particularized sideration not, death penalty. vacate the duty does it is our ant.” Since are set for death sentences forth automatic review provisions The (now 95-2206.15, sec- R.C.M.1947 through in sections 95-2206.12 MCA). section 46-18-310 Under through tions 46-18-307 95-2206.13, in this re- of all death sentences State the imposition Section sufficiency. its legality to review quires accorded review sets forth priority 95-2206.13 cases, take that it shall precedence and in states essence sentence that the entire 95-2206.14 requires all other cases. Section over forwarded to this Court. proceedings record The extent of 95-2206.15: review is set forth in section required sentence. as to court to make determination “Supreme well as shall errors punishment consider supreme *56 sentence, enumerated With to the by way appeal. regard court shall determine:
“(1) whether the sentence death was under the in- imposed factor; fluence of or other passion, any prejudice arbitrary “(2) whether the evidence of the ex- supports judge’s finding istence nonexistence or of the or cir- aggravating mitigating 95-2206.9; cumstances enumerated in 95-2206.8 and and “(3) whether the sentence death is excessive or dispropor- cases, tionate to the in similar both penalty imposed considering the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration.”
I cannot conclusions that after an accept majority’s examina- (1), (2), (3) 95-2206.15, tion of subsections of section that the death sentence was properly justifiably imposed. majority failed in its simply duties of review. that Nank’s
Conceding arguendo uncorroborated was testimony sufficient to establish that defendant committed the house burglary rifles, and theft of is silent on the opinion question of whether acts, these committed on the same as the day aggravated kidnap- were sufficient to ping, establish “history criminal activi- prior This is not a ty.” question of fact. It is a which this legal question answer, reason, Court must and has failed to do so. For this the ma- 95-2206.15(2). has not jority with section complied Neither has the majority explained whether the record affirma- establishes tively that the considered and evalu- ated the “particularized circumstances of . . . the defendant” in 95-2206.9(8), order be in with section compliance and the demands so, of Woodson and Not Gregg. having done it is clear that the has not majority with its review complied duties under sec- 95-2206.15(2). tion Under this section the record of the sentencing hearings judgment must establish clearly the “existence or nonexistence of the or aggravating mitigating circumstances . .” added.)
(Emphasis I note that the reference in the majority opinion of the any “particularized circumstances of . . the de- of the history
fendant” is relation handling “prior criminal activity.” can
Nor I the conclusions accept majority 95-2206.15(1), not, sentence to section “imposed pursuant other arbitrary under the influence of passion, prejudice, *57 this factor.” The total circumstances do not conclusion. support that the sentenc- Circumstantially, the conclusion inescapable from the so very court orchestrated the ing proceedings beginning event the aggravated that in the of a conviction of kidnapping, merits, the and be Before trial on imposed. death would penalty and his of not over defend- guilty, after defendant had entered plea motion, on its own amended sentencing ant’s the court objection, crime to that the allege the charge aggravated kidnapping trial, the conclusion of he resulted in the of the victim. At the death ask it to to the to determine jury submitted a special interrogatory resulted death the vic- the in the aggravated whether kidnapping a result of amended information special finding tim. As himself the court to sentencing placed position impose the jury, was then statute. required by the death which mandatory penalty the amended information matters not that this Court determined It be mat- and submission of to the to interrogatory jury, the special form, the because ultimately inconsequential ters of to the state of sentence was vacated. It demonstrates certainly death mind judge. of the sentencing after is evident this Court
The same kind of active involvement under the then existing death mandatory declared the penalty sentenced, was to be unconstitu- defendant statutes under which received the remittitur from this the court sentencing tional. Before indeed, Court, ruled defendant’s this Court had on petition before in- the had ordered a sentencing presentence court rehearing, for returned defendant immediately and ordered the vestigation report jail. Ap- to be Custer County from the state prison placed remittitur was received by day on same parently court, hearing out an order setting presentence it sent sentencing death under the 1977 penal- that it would be conducted and stated statutes. our on issues ty ignored decisions sentencing judge three and eleven which did indicated this Court clearly death would be a reconsideration contemplate penalty He read in he could to con- upon resentencing. everything possibly strue the first mean Coleman he could the 1977 opinion apply statutes retroactively. itself,
At the he and filed the sentencing hearing accepted at least as investigation but far as record is presentence report, concerned, it, and did not consider the ignored “particularized circumstances ... defendant.” He stretched law saddle the breaking defendant with a point criminal clear “history misreading prior activity”, misap- 95-2206.9(1). of section He allowed final on plication argument to be after he had imposed, only predetermined issue court armed his with written death sentence. coming He failed consider totally the lenient treatment to Nank given who admissions, was his an own in the crimes equal participant Moreover, which defendant ordered Nank to be had a hanged. record. previous felony *58 factors,
If these at or least do individually, collectively, not demonstrate the that was authority “under the in- sentencing (em- fluence of prejudice, any or other passion, arbitrary factor” added), not phasis I do know what would. is an matter It for a easy court to find an reviewing absence or “passion, prejudice, isolation, other if factor” it views the various in arbitrary factors But, and does not consider them must be considered together. they together if review to be meaningful under section provided 95-2206.15(1). case, in these were this factors not Unfortunately, isolation, considered in let alone collectively.
The considered factor the is the failure of the majority to the same prosecution and considerations give plea sentencing to defendant as he had to Nank. But the has given majority entirely — First, missed the for two reasons. the point sentencing court should have some the the made mention of distinctions in penalties defendant, handed out to Nank as failed to to but do opposed there were reasons legitimate so. If the thought was set forth it differently, obligated the defendant treating was different treatment. This those facts and justifying reasons Second, done, misreads when not of course. the majority Gregg the different treatments. cites this case justifying from the The failure to results apply majority’s properly Gregg brief, relation its reliance brief in In prosecution’s Gregg. on that to defendant’s argument stated in response prosecution be- treatment defendant was the victim of arbitrary capricious was leniency: that Nank shown ing “Furthermore, death case does not invalidate the one leniency 199, 224-226, at 96 S.Ct. others.” 428 U.S. Gregg, 2909. stated: majority
In its opinion, does invalidate the in one case “Leniency 224-226, 2909. 428 U.S. S.Ct. others.” Gregg or made in its brief to explain upon no effort expand State and neither did the majority opinion. of Gregg, interpretation facts of this case. It does not to say apply Suffice Gregg on this statement of was for the rely hardly appropriate majority more a continuing as it is than State in its brief nothing in this imposed effort the death sentence to salvage unrelenting case, interpretation to a fair and dispassionate without regard law facts. was that a defendant statement in The basic thrust of the Gregg he has been the cannot complain death sentence handed the because another conduct arbitrary capricious simply victim of case, defendant, reason been the has for some in another a far from the That is mercy. cry prosecutor’s beneficiary same where Nank admitted committing precisely situation here But, Nank was convicted jury. which the defendant crimes can was sentenced to This defendant hang. mercy: shown *59 of the application as a and evenhanded be interpreted just hardly law. 7, 1975, to with the State Nank agreed cooperate Robert
On May its the of defendant. In for prosecution exchange coopera- — tion, he certain received benefits dismissal primarily which eliminated the charge aggravated charge kidnapping that the death would be Sixteen possibility imposed. days later, Coleman, innocence, defendant his still though maintaining offered to to the same Nank had plead charges which guilty but insisted on his The pleaded guilty, maintaining innocence. refused his offer. The case defendant went to trial in State against essence because admit defendant refused to his on guilt. Primarily the basis of Nank’s he was convicted testimony, of all in- charges, the crime cluding aggravated kidnapping. has its majority grounded on the part Cole- opinion first case
man wherein the held that it was majority improper refuse prosecution to defendant condi- accept Coleman’s offer tional plead guilty. did have prosecutor Although offer, discretion to refuse this conditional plea consequences which followed are not fair in the slightest degree. Nor should they be tolerated. that the
Conceding prosecutor had to refuse the condi- right offer, tional does not plea it establish that the conditional offer plea least, was infirm. that is constitutionally At the law the United In States Constitution. North v. Carolina U.S. Alford 91 S.Ct. 27 L.Ed.2d it was held that is there no con- stitutional error in which contains a accepting plea guilty pro- least, testation of innocence. under the United Accordingly, States Constitution could prosecutor have had, accepted conditional If plea defendant guilty. they not later could withdraw his plea. however, not affirma- note record does important
It is, That not accepted. establish conditional tively why plea would have treated defend- does not establish the prosecutor guilty like he would unconditionally plead ant Nank if just therefore, that the ever We conclude charges. prosecutor cannot terms of the same treatment Nank. In plea defendant promised *60 the has established its posi- American Bar Association bargaining tion to situated defendants: relating similarly equal plea situated defendants should afforded
“Similarly (American Bar Association on Stan- agreement opportunities.” Justice, dards to The for Criminal Prosecution Relating Standards Function, draft at and the approved Function Defense 102.) ever offered prosecutor
There is no the record that showing Nank, and is not as he did to there yet the same terms to defendant cir- situated defendants. Under the a better illustration of similarly case, was a clear affirmative for duty cumstances of this there to same to he offered the plea bargain establish that prosecutor did not and cannot defendant as he did to Nank. The prosecutor meet that burden. testimony, absent question accomplice
There is no that Nank’s defendant. would insufficient evidence to convict State have to Nank the evidence struck the with it had bargain But once it plea believed Nank’s defendant of the if the charges jury convict establishes, is, Nank’s confession The record that testimony. trial, Nank and defendant at establishes that Nank’s testimony acts victim. The effect in terms the same against committed however, convict because the State could not sentencing, struck a bargain keep Nank’s defendant without testimony, ultimately putting man alive in exchange possibility one — verdict The jury against one man to death defendant. defendant, the ultimate set in motion based on Nank’s testimony, such results from Such penalty. disparate imposition acts, and cer- society, cannot be countenanced by similar criminal The majority be countenanced courts. should never tainly treat- unequal of this by ratification injustice has performed great ment. pro- matters the sentencing are two concerning
There procedural has concluded clarification. The that need some majority ceedings oral of an present was not opportunity that defendant deprived moreover, hearing, the presentence arguments essence, defendant waived further rights present meaningful arguments by fact presenting proposed findings basis, court after been invited to do so. On this having concludes: majority “Thus, defendant and his counsel had at least two opportunities to submit argument to the Court regarding penalty prior July but did not do hearing, so.”
This conclusion has distorted the greatly realities of the situation. I have discussed the already which took dur- proceedings place *61 the so-called ing As neither sentencing hearing. submitted party evidence at the presentence and the hearing, document only filed at the presentence was the hearing presentence investigation it was report, that both agreed would parties submit briefs to the court with sentencing to their regard respective positions. This ap- done, was parently although Court does not have the benefit of addition, those briefs. In the court invited sentencing both sides to submit conclusions, and proposed findings but the only prosecutor indicated that he positively would do so. The court did sentencing not tell the that parties submission of briefs would constitute waiver of oral argument the concerning to be It is imposed. to assume that logical before defense counsel sentencing, believed that he would have an to make a and opportunity effec- meaningful tive oral argument against imposition death penalty. Clear- the ly, court did not sentencing with the comply of section spirit 95-2206.7, which provides pertinent part:
“... The state and the defendant or his counsel shall be permitted to for present argument sentence against of death.” (Emphasis added.)
The word “shall” is For it to be mandatory. the im- meaningful, is that plication shall be argument before the presented sentencing True, court makes its decisión. But such is not the case here. court, 10, 1978, sentencing on July allowed defense counsel to argue against of the death and imposition the state to penalty, for argue imposition of the death But this time the penalty. court had decided already to impose The sen- penalty. court had to court with its written death sentence come
tencing mentioned, As have insofar I already prepared. previously concerned, defense counsel defendant is this is akin to allowing case after the only criminal to make final arguments jury these has returned with its verdict. Under cir- guilty jury cumstances, defendant that reasonably cannot argued meaningful argue given opportunity against had been made. This not already only when the decision to hang 95-2206.7, constitutes denial of section it also spirit violated the effective assistance of counsel. court, as did sentencing Nor is it reasonable to conclude here, waived another that defendant effectively op- the majortiy the death sentence by argue imposition portunity against of law. submit of fact and conclusions findings failing proposed counsel and the is true that the court invited defense sentencing It conclusions; written findings submit proposed prosecutor so. The prose- he would do but only prosecutor responded does conclusions. But findings cutor did present proposed believe, believe, truly does truly majority well for defendant if his could been turned the tide have far must we of fact? How findings had lawyer presented proposed our head the sand? bury
Indeed, written fact” findings the statute calling “specific *62 a is made to take defendant’s when a decision only clearly operates 95-2206.11, in relevant provides part: life. Section sentence, the death the case in which the court imposes “In each written of the shall supported specific determination court added.) . of fact . (Emphasis findings in are the required leaves that findings statute no doubt This statute cer- death and the the penalty; event a decision to impose of make those proposals. the defendant to no duty upon tainly places and the alone to its support of court is that the court The duty written findings “specific sentence with the required the defend- and burden of persuasion upon fact.” To impose duty is clearly beyond of fact findings his own ant to present proposed statute, and that this the of the beyond any duty contemplation on the defendant. Court should gratuitously impose did submit proposed findings What if the defendant’s counsel led fact? to the inexorable they We assume would have may safely But, life the sen- conclusion that defendant’s should be if spared. life, would court defendant’s the tencing spared proposed findings decision mer- not serve function whatsoever. Since the to grant and also is one in no of fact are cy required, being which findings decision, obvious has such the pro- that the State no from appeal most have their trash would found posed findings likely way Furthermore, can. the the function of ignores primary majority in the trial decision-making of fact terms of the at findings process level. candid,
If trial and trial are judges lawyers will admit that they are proposed findings and submitted to assure prepared by counsel that in the event the trial court finds in favor their that all the bases are covered in the event of an are submitted appeal. They possibly ever, with the but if with hope, rarely that the expectation pro- posed will abe factor findings actually decisive influencing Indeed, trial court to rule in favor of one’s client. it has my been ex- an perience, and one unfortunate from the standpoint appellate review, that most often the trial court rubber simply stamps proposed findings do side. we winning Rarely get any insight as to was, what the decision-making how process the trial court case, fact viewed evidence trial. instant In the do not I know how closely the of fact find- findings parroted proposed ings submitted as are not a prosecutor, proposed findings on part record appeal.
An examination of the findings entered in this case does not give as to reviewing any insight what the fact finder was think- is, ing; what factors were actually involved motivating his decision to impelling impose are penalty. findings — cold and calculated and set with out staccato but hard- precision ly revelation to the reasons for concluding defendant must die. In considering weighing circumstances sur- totality
378 defendant, Nank, and by the commission of the crimes
rounding by sur- and in the of circumstances totality considering weighing defendant”, . of . . circumstances rounding “particularized to sentence defendant what impelled actually an he knew that ac- equally guilty to while at same time hang — as factors record silent to these would not complice hang? in the of the court. The find- the real reasons hidden forever bosom than what are what don’t for revealing they say they more ings do say. of that defendant’s question presentation pro-
It is clear beyond have been in addition to not would required, posed findings, being aby a exercise of of fact collaborated manifest futility. Findings the sen- could not have deterred thousand William Shakespeares of its course. member court from chartered Does tencing believe Under these circumstances otherwise? majority truly a of are form of argument fact findings conclude proposed of having calculated have with reasonable possibility court, is utter nonsense. certain on the sentencing effect persuasive cases only involving Before discussing majority position Court, reviewed the death must be I imposition defendant would have be that I do not contend emphasize In treated like Nank in terms of the sentencing imposed. exactly Nank, case of the charge kidnapping dropped of aggravated not be obviously he could bargain part plea agreement was convicted sentenced at all for that crime. But since defendant course, crimes that of (including, aggravated of three by jury all crimes. The he could have been sentenced for three kidnapping), the de- went too far when sentenced sentencing court one step fendant hang. states, is as the review majority
One of the appellate purposes random or against arbitrary imposition serve as a check “[to] at 2940. 96 S.Ct. U.S. citing Gregg, penalty”, sentences not hold that other did But Gregg relied on believe case Georgia Nor do I need compared. 829) (Moore 213 S.E.2d v. Ga. State majority *64 is for the in of the of the authority light majority position wording review scheme in this state. 95-2206.15 not Section does statutory so limit our review. It in relevant provides part: make Court to determination to sentence.
“Supreme “The court shall consider the as well as supreme punishment sentence, errors enumerated With by way appeal. regard the court shall determine:
“(3) whether the sentence of death is excessive or dispropor- cases, tionate to the in similar penalty imposed both considering the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration.” intended, a
If with only other death sentences was comparison would have legislature inserted the word “death” before the word “penalty”. (mandated
If the actual purpose review mandatory Constitution) United States is to check “the ar- against random or bitrary of the death fail imposition I to see how such penalty”, review can be and fairly fulfilled a effectively without comparison with those cases wherein the death could have been penalty im- but for some reason posed, was not. Factors which lead a sen- may court to not tencing well impose be penalty may worthy of consideration aby court in reviewing whether a determining case under particular review merits the same considerations. A sen- have sound tencing judge may reasons persuasive he did why not a death in a impose case. This court penalty particular should not access to this deny decision in whether a determining or not case we are same reviewing may merit the outcome. unaware, however,
I am not of the involved practical problems 95-2206.11, access to getting such cases. For section example, which have I discussed in relation to another previously point, requires written of fact” clearly “specific when the findings entered, death If such are not imposed. and if a findings decision of a court is not filed its reasons for explaining case, a death a sentence in for all imposing particular practical be deci-
purposes deprived Court would of the benefit of this But, sion for review I believe that failure to use such purposes. review, cases for is a denial of effective comparison particularly since review is decisions United mandatory required States Court. Supreme
There are additional to fairly practical problems seeking scheme vagaries apply statutory capital punishment. decision-making into the process components entering are and mostly too prosecutor sentencing judge many can never became matter so that a con- reviewing of record sider them. Whether will be imposed par- ticular case will almost on the beliefs depend personal entirely and the is on the attorney attitudes of the who prosecuting judge case. to seek the death would loathe Many prosecutors penalty. *65 the are not hesitate in deter- On other hand there those who would death the the and mining only punish- penalty appropriate ment. The same is true the who is on the case. Many judges of judge hand, would to the death On the other be loathe penalty. impose them, as there are those who are known To “hanging judges”. and in a wider variety death should be more often penalty imposed Furthermore, are considerations many of cases. there political determining judges which upon prosecutors operate be bemay whether death will A defendant penalty imposed. combination of sentenced to death because right prose- solely reaching cutor and in tandem sentencing judge operated decision to impose penalty. course, of the death penal- are made disposing
Of decisions many ato a defendant either pleads guilty case before of a long ty aspects cases, a threat of a many found In by jury. crime or is guilty capital him a induce may over defendant hanging the death penalty a for the promise prosecutor a crime in exchange guilty plead involved, a or charge death of the aspects to eliminate the penalty dif- extremely would seek the death It penalty. not to promise in- least, sufficient ficult, to obtain a reviewing say a with so them compare cases as to these concerning formation under review. death sentence currently out these to stress it is only I factors belief that point my virtually administer and enforce a impossible rationally fairly scheme statutory punishment. But since capital capital punish- as a ment means seems now to be an ac- permissible punishment fact, this should no efforts in complished seeing spare is administered as as we are it. To use fairly doing capable cases as a with a imposing death case comparison review, under fails in this miserably whole objective. Somehow review is process meaningful diminished. appellate has with majority dismissed no discussion the meaningful defendant’s a been contention that should have allowed to jury determine whether or not should be imposed. it is not a Perhaps constitutional under the requirement United Constitution, run, States am but I convinced that in the long with all inherent frailties which a scheme of en- punishment capital tails, a will a jury arrive at more evenhanded application law to the facts a than will are judge. There no sound policy instructions, reasons with why, guidelines appropriate jury should not be allowed to make that fateful and final decision as to whether will person live die. We entrust with im- juries very decisions in our portant legal system; there is no reason we why should not entrust with them this ultimate decision. The ultimate of life or death never be power should reposed single person under it is our statutes. present case, had jury
If decided this I am that it convinced would im- have mediately fundamental unfairness of recognized allowing Nank to live but Coleman to ordering die. A would have jury established its own fundamental sense fairness and of justice by *66 that neither deciding should Coleman be to with his compelled pay a life. is the jury If “conscience of the there is community”, every for reason this render a allowing collective conscience to final ver- as to life dict or death. discussion, arrive at
I now the final matter for and that is whether the who the initial death judge imposed penalty should have been to permitted preside the second This again sentencing. defendant, was not raised but it was
question directly impliedly by effec- raised his that he was denied for contention opportunities sen- to the second tive the proceedings relating argument during not have Clearly, presided should tencing. sentencing judge as arises to steps over the second But the sentencing. problem Plainly be taken to obtain a new for the second resentencing. judge stated, is no than the volun- sentencing there other procedure judge aside for second tarily sentencing. stepping this is clear from the case that the sentencing It beginning to the an inordinate amount of involvement directed court had the infor- ultimate end of the death penalty. By amending imposing and over his of not plea guilty mation after defendant had entered defendant, inter- submitting special objection court an undeniable rogatory jury, sentencing expressed A conviction of interest in the crime of aggravated kidnapping. of the death virtue penalty. By that crime mandated the imposition in- answer to the special of the amended information the jury’s a man- where the the defendant was then terrogatory, position involvement con- could be This datory imposed. declared the 1974 death penal- after this tinued immediately court im- when the statutes to unconstitutional ty he conduct a sentenc- sent a to counsel that would letter mediately have elsewhere under 1977 death statutes. I ing hearing court in ultimate- additional activities the sentencing related the impose ly deciding penalty. do rules on disqualification
Unfortunately, our present where a a in a situation disqualification judge for provide to a resentencing been remanded for only opposed case has 26. In the new set forth in St.Rep. reversal a trial. This rule is for file case, a can a rule party of this provides context if ordered a this Court has motion to substitute judge peremptory cause, for for disqualification There is also provision new trial. invoke, is successful in- rarely difficult extremely but is an argument There change of judge. strument obtaining could be interpreted apply rule disqualification the peremptory event, defendant did but a remand resentencing, also to *67 not move to peremptorily disqualify Accord- sentencing judge. that issue is not ingly, before this directly Court.
Nonetheless, this case raises some fundamental con- problems to a new cerning right for judge resentencing, particularly when the death has been penalty the first time and already imposed there is even the that it will be slightest possibility again imposed. The behind policy to a new after a right reversal was judge Court, stated in v. King In and Superior County For Maricopa 108 Ariz. 502 P.2d where the Arizona Supreme stated: “In the case of an trial, reversal and a remand a new appeal, it is that the always possible trial resent judge may subconsciously or lawyer defendant who got reversed. The judgment mere of such a possibility in the back thought trial mind judge’s means that a new added). should be found.” judge (Emphasis P.2d at 530.
In that case the Arizona Court was Supreme a rule construing similar procedure reason, to the rule of this state. There is no course, this same “mere why would not exist in possibility the case aof remand for resentencing. Without question “mere possibili- would ty” exist in a case where there was even the slightest possibility could penalty again imposed upon circumstances, Under these resentencing. there is no absolutely reason why defendant should have to face the same twice. judge rule, Arizona’s, however is that Montana’s like is problem not Unless a trial has a self-executing. judge sentencing judge aside, of conscience there is twinge no voluntarily steps way to make him do so. The is more presently problem complicated here because the defendant did ask the not sentencing judge step Nonetheless, aside. where an extreme such as the such involved, I think it incumbent this Court to upon whether, make our own determination as under the objective test, and im- reasonable man the defendant was fair deprived and to hearing over the partial judge preside sentencing sentence. ultimately impose
There is no court should have question known that a man look askance at his again reasonable would over the should have disqualified He presiding resentencing. himself; so, but did that he not do Court should allow being an the death sentence to stand based on application *68 (which reasonable man must test. In criminal trials in- obviously clude criminal the American Bar Association has sentencings) standards that adopted provide: has
“The trial should himself whenever he any excuse judge case as to in a criminal or preside doubt his ability impartially he his can be ques- whenever believes reasonably impartiality tioned.” American Bar on Standards for Criminal Association (1972), The 8. Judge, Function Trial p. Justice aside The test for when a trial should is determining judge step one, a has been stated as follows: an one. It objective subjective “Would a all of the facts of ordinary prudence knowing person a for ques- known to find there is reasonable basis judge — Code Conduct ojJudicial The impartiality?” tioning judge’s L.Rev. 402. Utah The First Five Years has not this this Court Code of Con- Although adopted Judicial duct, the rule a rule sense and existed is but of common has long law review before canons discussed arti- adoption cle. (1955), 178 the case Kan. P.2d
In of In re Estate Hupp’s 428, 432, declared reiterated the rule Supreme Kansas Court (1899), 60 56 P. where it stated: v. Kan. Berkley Tootle surrounding litigation and conditions “. . . when circumstances as to cast doubt might question are of such nature they may pro- the trial judge or of any judgment fairness impartiality nounce, bias not conscious of or any even he is such though judge, in ques- the case and permit himself disqualify should prejudice, a tem.” judge pro tion to tried before under circumstances cases were decided true these It from a to remove judge at the lower court moved where party refused; was successful case, where party but where he ,but bench, from the where the other con- removing judge parly tended that the should not have removed him- upon appeal judge self. if these rules are have substantive But meaning, par- case, in a death it should not be that the ticularly necessary penalty defendant have moved to have the aside in favor of judge step another court should be ever mindful that judge. sentencing will, test, this under the reasonable man scrutinize the pro- and if we determine that the has failed ceedings, sentencing judge test, the reasonable man we will remand the case for resentencing and order a new judge preside. case,
aIn an Court has overriding duty, rules of regardless existing the dis- procedure governing to determine if the entire qualification from record and judges, circumstances, the defendant has had a fair totality hearing. Here, he did not. I would vacate the death clearly order that a new be called in to over the judge preside hearings.
To set forth my positions concerning sentencing hearing, *69 more the written particularly, of fact entered findings court, have of had sentencing I from of the necessity quote many written There is findings. that the reader always danger may conclude that if the written were reviewed in their findings entirety reason, would not perhaps they For this support my position. I A, have to this dissent as Exhibit an exact appended of the copy Conclusions, and Findings, Judgment Order entered the sen- 10, 1978, court on tencing the defendant was July whereby sentenced to hang. all
For of the reasons vacate the foregoing I would death case, sentence in this order that a different district imposed judge defendant, be called in to at the preside again further order that the death is not to be considered. OF THE SIXTEENTH THE COURT
IN DISTRICT JUDICIAL MONTANA, IN AND FOR OF OF THE STATE DISTRICT OF ROSEBUD THE COUNTY ) OF MONTANA STATE ) Plaintiff
) No. 1083 )
vs CONCLUSIONS, FINDINGS,
) ) ORDER AND EUGENE COLEMAN DEWEY JUDGMENT ) Defendant October, on the 24th day an filed Information Pursuant herein, Coleman, was charged defendant Eugene Dewey Homicide, Kidnapping Aggravated of Deliberate with the crimes trial commenced A jury Without Consent. Intercourse and Sexual 23, 1975, November through continued October on the three of “guilty” returned verdicts time the Jury which 21, 1975, sentenced Coleman this Court On November counts. is: The defendant each .charge, on maximum punishment was he Kidnapping; Aggravated sentenced to death for was Homicide; and was he for Deliberate to 100 years sentenced Without Consent. for Sexual Intercourse years sentenced consecutively. to be served were ordered sentences These Court, which Supreme was to the Montana matter appealed This 26, 1978, convic- of the three each upheld its decision April tions, The re-sentencing. Supreme matter for but remanded this in- bodily of the infliction showing there no held that Court therefore, victim, that, of the rape the course during jury the maximum circumstance absence of that aggravating in the also held that The Court Supreme the crime is 20 years. R.C.M.1947, 94-5-304, because pro- is unconstitutional Section re- penalty. a mandatory imposition scribes *70 cause excused for were that two jurors defendant’s claim jected their views on because of Rule of the Witherspoon violation turning on over its decision limited The Court capital punishment. 387 to the absence of allow- penalty requirements procedural the trial to consider ing circumstances in its any mitigating of a under the unconstitutional death imposition penalty stated, statute. The Court as follows: statute, finds, case,
“Under this if the court as it did in this the victim of an aggravated died as a result kidnapping crime, the convicted defendant must be sentenced to die. There is no for the trial provision court to consider any cir- mitigating cumstances. It allows the court to determine the aggravating circumstances of death. This is not constitutionally permissible.
To have a valid death constitutionally the United penalty, States Court has established Supreme certain necessary procedures. See: (1976), 153, 2909, v. Gregg 428 96 Georgia, U.S. S.Ct. 49 L.Ed.2d 859; Florida, 242, 2960, v. 428 U.S. 94 S.Ct. Proffitt 913; Texas, (1976), 262, L.Ed.2d v. 2950, U.S. S.Ct. Jurek 49 L.Ed.2d. 929. None of those are required procedures present Montana’s death statute as it existed in nor were they Thus, otherwise in provided this case. defendant’s death sentence cannot stand.”
On the June, 14th day a separate sentencing hearing was held to determine the existence or non-existence of aggravating circumstances or circumstances mitigating in line with the provi- 95-2206.6, 95-2206.7, 95-2206.9, sions Sec. 95-2206.8 and R.C.M.1947. At time of the the defendant filed sentencing hearing Quash, Motion to and when offered an opportunity present evidence or matter in mitigation, declined to do so. Following hearing the state and granted the defendant time to file briefs with particularly reference to defendant’s Motion to Quash. considered, Briefs and the law been having the trial court addresses the issues principal legal raised.
As noted 179) Coleman in his brief appellate (pp. Sec. 95-5-304, R.C.M.1947, that “A originally provided court shall im- the sentence pose of death conviction of following kid- aggravated if it finds the napping victim is dead as a result of the criminal con- mitigating duct there are [unless circumstances.”] legislature *71 amended this section by striking portion language action, underlined above. This made it clear legislative that the need not consider sentencing circumstances mitigating upon conviction of aggravated As out above the kidnapping. pointed case, statute as amended was declared unconstitutional but Court did Supreme remanding resentencing specifi- declare if the trial court cally could or could not the death impose Coleman that since penalty. argues statute was mandatory unconstitutional, declared Coleman cannot be sentenced to death under laws enacted after his conviction.
The Court of its indicates that if the Supreme page opinion death had been under safe- penalty imposed procedural proper the sentence would have been The guards, Court states: upheld. “To have a valid death the United constitutionally penalty, has Supreme States Court established certain necessary procedures, (citations) None of these are in Mon- required procedures present tana’s death statute as it existed in nor were penalty they pro- case, vided otherwise in this Thus defendant’s (emphasis supplied) death sentence cannot stand.”
The if emphasized language strongly suggests court had observed declared requirements recent procedural decisions, the U.S. death would have been Supreme penalty that Montana’s law was upheld un- notwithstanding mandatory constitutional. 95-2206.6,
The later enactment of Sections et out seq., spelling should not to take court’s procedure, operate away power under impose proper procedural safeguards. is an under fact the Montana Constitution operative 95-5-303, R.C.M.1947, and and are not to be ignored Section and because defective statute is other procedurally abrogated statutes are substituted therefor. As from the State argued by case, the circumstance that the defendant is afforded Dobbert the trial court’s utilization of sec- protection greater procedural 95-2206.6, et fall tions does not within the ex seq., prohibition facto laws. post
In the trial court in now sentence summary, is in pronouncing to utilize the interim position developments sentencing pro- cedure as reflected in recent U.S. Court decisions Supreme Montana statutes enacted in thereto. response
Both been before parties having given opportunity place all Court matters each deemed relevant competent bearing upon determination of sentences to be appropriate imposed upon rendered, the three verdicts guilty jury the Court having submitted, reviewed all matters with the evidence together pro- trial, duced at and after *72 the defendant’s demeanor dur- observing behalf, the trial and ing while on his testifying own the now Conclusions, makes the following Findings, and Order. Judgment FINDINGS 4, 1974, 1. That on the July defendant and Robert Nank Dennis were on the road on Nank’s on a motorcycle which journey began Sheridan, the Sheridan Veterans Administration in Hospital and continued Wyoming, through various towns in Montana to Montana. The Roundup, two men a home in burglarized Roundup, Montana, 4, 1974, on and July stole several rifles which were buried near the subsequently in Later Roundup Airport. day the two men decided that would rob someone they along U.S. Montana, No. 12 between Highway and Roundup, Mon- Forsyth, tana, and that would kill the they witnesses to the evidence. destroy road, With the motorcycle alongside A they began hitchhiking. Montana, car a Mr. and occupied by Mrs. Paul Koester of Forsyth, but were and left stopped, frightened as the defendant hurriedly moved to obtain into the entry vehicle. At about 10:00 P.M. Miss Rosebud, Montana, Peggy Harstad of and offered the two stopped automobile, amen ride. took control of her and her They tied her Vananda, a with and took her to a remote location north of rope Montana, where both men to sexual intercourse attempted engage without consent with her. The victim was in menstruation at the automobile, time. her her back in the rear of the Holding upon consent, defendant in the act of sexual engaged intercourse without while the victim with him not to. drove pleaded For- They through east of road frontage just to a secluded
syth spot adjacent Montana, to kill announced his decision where Coleman Forsyth, to the bridge then drove back through Forsyth Miss Harstad. They River to an isolated No. 12 the Yellowstone on U.S. over Highway near an abandoned River from Forsyth area across the Yellowstone initiated the In this area Milwaukee Railroad Coleman depot. helmet motorcycle by his swinging assault the victim by upon Then the victim’s head. against chin crashing strap victim’s neck around the the yellow nylon rope defendant placed defendant and Robert Then both the strangle her. attempted and, held the defendant slough the victim down Nank carried the water briefly water. The victim rose out of her under the ex- under until she water and held her then both men went into the pired. means of record unable to prove by
2. That the State has been activi- of criminal history the defendant has other checks that trial record in act appears other criminal which ty. Mon- Roundup, of home burglary this cause is the aggravated tana, defendant and Robert certain were stolen guns where credit foregoing, on 1974. reason of Nank July By 95-2206.9(1) is not allowed Section appropriate mitigation defendant. the record of either in 3. there is no evidence appearing, That *73 ac- sentencing hearing in cause or the special the trial held corded, in mitiga- of the circumstances finding any supporting 95-2206.9, of Section numbered tion under the other paragraphs is, likewise, (2) (8). no evidence There through namely paragraphs to the are in this case operative mitigate facts which any finds, as follows: this cause. The Court therefore in cause were not and in this the offenses charged proven a. That any was under the influence of defendant committed while the disturbance; and mental emotional defend- and the proved the acts charged b. in committing That under the substantial act extreme duress or did not under ant defendant’s decisions rather the person, of another domination deliberation and murder were the result of conscious kidnap, rape and were his decisions arrived at despite contrary independent murder advanced Nank the of the vic- Robert arguments against tim; and
c. the of the defendant the That capacity appreciate conduct of his conduct or to conform his to the re- criminality of law was and quirements not substantially impaired; d. That the victim was not in the defendant’s con- participant acts, resisted, duct and did not consent of the rather she and with the defendant at various times pleaded the throughout death; course of events which resulted in her and e. That the defendant was not a minor relatively accomplice, minor, nor was his in the offenses participation rather relatively that the defendant was the decision-maker and the in- dominating victim; fluence the criminal acts committed the against f. That the the defendant at time of the commission of the of- was fenses 27 years of age.
4. at the That prior sentencing this Court hearing, imposed sentence of 100 for crime years of deliberate homicide. That at prior sentencing hearing sentence imposed of 40 consent; sexual years for intercourse without that these sentences were ordered to run consecutively.
CONCLUSIONS The Court concludes as follows:
1. That circumstances set forth in aggravating Section 95-2206.8, (7) exists for the reason paragraph following:
That offense of committed aggravated kidnapping victim, defendant it resulted Miss Peggy Harstad. listed
2. none of the circumstances mitigating That Section call are substantial sufficiently leniency. 95-2206.9 R.C.M. in this technically present That the circumstance mitigating criminal cause is that the defendant has no record history prior activity. Conclusions,
From Findings Court now foregoing its renders
392 AND ORDER JUDGMENT
as follows: defendant, Coleman, found been Eugene having 1. Dewey The on aby jury crime of Aggravated Kidnapping the guilty 1975, found and the Court having specifically November set circumstances doubt that the aggravating reasonable beyond offense, and 95-2206.8(7) this exist in relation to forth Section defend- the circumstances exist in mitigation penalty, that no Coleman, the ant, sentenced to death for is hereby Dewey Eugene be in- is to punishment crime of Said Aggravated Kidnapping. neck until he is by flicted Coleman Dewey Eugene hanging o’clock on six o’clock A.M. and six P.M. dead between the hours of of the automatic review 31st day following completion said execution of Montana Court. The Supreme this case County of Yellowstone sentence shall be Sheriff supervised by R.C.M.1947. 95-2303 pursuant Section defendant, Coleman, found been having Dewey Eugene 2. The a jury Without Consent by of the crime of Sexual Intercourse guilty Coleman, defendant, 14, 1975, Dewey Eugene on November State Peniten- to be in Montana sentenced hereby imprisoned crime Intercourse for the of Sexual term of tiary years Without Consent.
3. The sentences are to served hereby imposed consecutively which is with the sentence for Deliberate Homicide years defendant is remanded to the hereby. not disturbed hereby of the Rosebud to be him to Sheriff custody County transported by await of this the Montana the final order Penitentiary State sentence execution of the remainder pertaining time herewith The defendant is to receive credit for imposed. served, from date initial on these charges of his incarceration date on October of this judgment. 1978. day July,
Dated 10th
A.B. Martin
Isi Judge District
cc: Forsythe S. John F. Moses Charles *75 REHEARING
ON SHEEHY. MR. JUSTICE 1979, on the second our 20, opinion down we handed
On June 299, (1979), Mont. 185 Coleman Dewey Eugene appeal decision the we received Following opinion, 1000. 605 P.2d v. Montana in Sandstrom Court States Supreme of the United 2450, 39. Counsel 61 L.Ed.2d (1979),--U.S.--, 99 S.Ct. the sec- for on rehearing with us petition filed for Coleman the holding things other among alleging, ond appeal, case. and new trial Coleman’s a reversal required Sandstrom Sandstrom, for rehearing, we granted petition basis of On the by grounds urged on other eight argument and further permitted briefed sides were issuesraised both by The rehearing. Coleman 29, us October before on had on rehearing and was argument 1979. Dewey against of conviction
We now uphold judgment We Coleman, on him. death imposed sentence of Eugene as were briefed issues they under the will discuss our reasons us. before argued
1. THE EFFECT OF THE SANDSTROM DECISION. Sandstrom, In the United States found the Court trial Supreme court’s instruction law presumes that intends the or- person “[t]he of his acts” dinary consequences unconstitutional. voluntary at--, 99 at at --U.S. S.Ct. 61 L.Ed.2d 44.
The Court held that such an instruction have been may Supreme as viewed an “irrebuttable direction the court jury by triggering find intent once convinced of the facts the presumption. as a have the instruction may interpreted Alternatively, jury ac- of the defendant’s voluntary direction find intent proof upon tions, quan- . . . unless some contrary proved defendant Sandstrom,--U.S. at--, 99 at 61 tum S.Ct. of proof....” L.Ed.2d 47. on the basis of Sand-
The instruction to which Coleman objects 22 as trial instruction no. follows: strom is the court’s “If you find that the defendant com- Dewey Eugene Coleman mitted a homicide no circumstances of excuse or mitigation, then infer that the justification homicide was appear, you may committed knowingly purposely.” objections by Coleman instruction no. sum- may (1) marized follows: the instruction was of a nature Sand- instruction; (2) strom has held that Coleman instruction (State is similar to the Sandstrom instruction v. Sandstrom 106;) (3) Mont. 580 P.2d under instruction no. 22 the State element of the required prove every alleged crime doubt; (4) a reasonable beyond statutory is un- presumption constitutional unless it can be shown that the fact is presumed more not to likely than flow from the fact which it proved upon (5) instruction no. 22 conflicts with defendant’s depends; *76 of innocence because is an presumption where intent element the crime cannot be taken from the on a reliance jury through therefore, (6) presumption; the State was not to required its prove case a against defendant reasonable beyond doubt.
We first note that the instruction in differs from Coleman the instruction on Sandstrom that the Coleman given instruction is not in its terms. The mandatory nature of the permissive infer” language “you may cannot be The then question escaped. inference, becomes whether the when read with the permitted case, other in the instructions allowed the to convict Coleman State without element of every the offenses a proving beyond charged reasonable doubt.
Moreover, the Sandstrom instruction related to as presumption a matter of The law. an Coleman instruction refers to inference of fact, a that deduction could be inferred the under logically by jury inference, of the circumstances stated. The proof its possible by terms is not in itself unreasonable. United States Court said in that deter- Supreme Sandstrom been
mining whether the State has relieved of its burden of proof, careful attention to words the “requires actually the to spoken jury . . . for whether a defendant been his has accorded constitutional could have the which reasonable way jury rights upon depends at--, instruction.” S.Ct. the Sandstrom--U.S. interpreted 2454, at 45. L.Ed.2d that the trial court shows given A review of instructions to on the burden of the State 22 did not stand alone instruction no. outset, At charged. the elements of the offenses prove beyond is required prove, State informed jury, “[t]he doubt, filed facts in the information all material alleged reasonable case.” home the jury of the court hammered Further instructions court’s instruction of innocence. In presumption importance told the defendant came into court pro- no. was jury crime, and of innocence par- tected presumption him; that he was presumed the crimes charged against ticularly certainty to moral until his is established guilt innocent doubt; at- of innocence a reasonable that the presumption beyond he the entire case tended him at every step throughout question was the benefit of that presumption upon every entitled to fact; innocence by his guilt and that the should determine jury the case introduced in a careful consideration of all the evidence the trial. during told the that the burden the trial court jury
In instruction no. the trial to establish throughout rested the State upon proof a reasonable doubt and that his convic- guilt beyond Coleman burden was sustained. would be warranted unless the tion in a criminal told the defendant In instruction no. jury until the contrary proven, action to be innocent is presumed *77 satisfactorily whether his is guilt in case of reasonable doubt shown, effect of this was to an that the acquittal; he entitled the of was the the burden proving State place upon presumption a reasonable doubt. defendant guilty beyond crimes, the separate was convicted of three Although Coleman of deliberate charge to the only instruction relates disputed the in the informed jury find that the trial court fully homicide. We the proof resting upon the burden of instructions about foregoing as State to each material element of the crimes charged the effect the abiding of presumption of innocence throughout the course of the We trial. look now to determine the effect under the instructions of the in the language instruction that disputed the “infer that jury might the homicide was committed knowingly purposely”.
An is a inference of form evidence defined as “indirect 26-1-102(4), evidence”. Section MCA. To layman, in- perhaps, direct evidence is better known as “circumstantial evidence”. 8', trial
In court’s instruction no. the was instructed that jury there were classes two of evidence either or upon both which if adequately convincing, jury might find accused lawfully evidence, of crime. One was guilty direct and the other cir- cumstantial evidence. A of the court’s no. 8 part instruction with to circumstantial respect evidence told the jury: circumstantial, “All other in is evidence admitted the trial acts, declarations, conditions, as insofar it shows any or other cir- cumstances crime be tending con- prove question, may sidered at a verdict. by you Either will verdict arriving support law, if it carries the as guilty convincing quality required by However, stated these instructions. are that instructed you you are not on circumstantial evidence alone to find the permitted defendant unless crime him guilty any charged against are circumstances not consistent with the proved hypothesis that defendant the crime but are with inconsistent guilty other rational conclusion.” any
When we careful attention to the words to the give spoken jury, Sandstrom, United Court said in Supreme forego- States evidence instruction with effect of circumstantial ing respect with must instruction that the weighed jury “may disputed balance, clear infer” material elements the crime. On it is to us in the instruction must under permissive language disputed fair declaration in instruction any give way positive reading no. 8 that circumstantial evidence must carry convincing quali- instructions, and law as stated in the such required ty
397 unless it incon- would be insufficient alone inference standing than guilt. with any hypothesis sistent other whole. v. as a State we view the instructions On appeal, to (1976), 472. is impossible Mont. 368 558 P.2d It 171 Farnes instruction, and that law one any deliver the whole of reason, as a and if they fairly are considered whole all instructions standing fact that one instruction the case to the jury, tender be not reversible error. as accurate as it is might is not full or alone 414, (1975), 543 389. The purpose 168 Mont. P.2d Caryl v. State crime, crime, one commiting or that knowledge commit can be only through matters that most often proven are subjective indirect evidence. circumstantial or to mean is not be construed Sandstrom holding resort to may court instructs the that jury whenever a trial
that such as or knowledge matters subjective inference determine been of its burden of that the State has relieved thereby purpose, did such not intend limita The United Court Supreme States proof. tion, we intention in the language not find such do Sandstrom, allowed to rest related cases. The was not jury its case, but under inference in Coleman solely upon permitted meet an inference to the stan require instructions had to such as a reasonable doubt. beyond dard Sandstrom, the effect of an in- test in determining
The true under such the one here is whether instruction disputed struction of the burden effect defendant some allocating part has the rests on the trial. See throughout State proof properly 1363, (D.Ga.1979), We 474 1368. v. Holloway McElroy F.Supp. here. not find that to have occurred do
On that basis we the Coleman instruction from those distinguish cases as in v. Mullaney involving burden-shifting presumption 684, 1881, 508; (1975), 44 Wilbur 421 U.S. 95 S.Ct. L.Ed.2d Sandstrom, like involved in conclusive those presumptions supra; 246, 240, (1952), v. 342 U.S. 96 Morissette United States S.Ct. 288; Co. and United States v. United States Gypsum L.Ed. Instead, 854. the in-
438 U.S. 98 S.Ct. 57 L.Ed.2d ference is purely in the sense permissive, described in County (1979),--U.S.--, Ulster v. Allen Cty. 99 S.Ct. L.Ed.2d 777. further
Coleman contends that because we stated in our *79 (State first Sandstrom v. Sandstrom 176 Mont. opinion 492, 106, 109) 580 P.2d that the instruction in Coleman was similar to the Sandstrom instruction that the United thereby States Court in Supreme Sandstrom has overruling in effect determined that the Coleman instruction was likewise unconstitutional. We do not that contention as accept having any validity. each Comparing instruction, we see this manifest difference: the Sandstrom instruc is tion its terms by but the Coleman mandatory instruction is per missive. We can no see other as construction to the effect of the used in language instruction no. in22 this Coleman case. 2. THE EFFECT OF THE INSTRUCTION ON “KNOWING- LY.”
Here Coleman attacks the definition of the term “knowingly”, as given Court in on that by element instructing regarding crimes charged. trial
In “ court’s instruction no. was told: jury A acts ‘Knowingly’. person with knowingly respect conduct to a or circumstance described a statute an by offense defining he when is aware of his conduct or that the circumstance exists. When of the existence a knowledge fact is an particular element offense, anof such is established if a knowledge is aware of person a its high existence. terms as probability Equivalent such ‘know- or ‘with have the same ing’ knowledge’ meaning.” (1) to this instruction objections on are: it violates rehearing the rule reasonable doubt because it a against requires only “high existence;” (2) of its it is an in effect exclusive probability presump- in that the element tion is established if the finds a jury high prob- existence; (3) of its ability does not have “high probability” which would enable a quality to convict. jury Co., Under v. United States United States where Gypsum supra, an antitrust an element mind or intent state of a defendant’s in- offense, a of wrongful a on presumption reliance by jury legal reversal. Applying necessitated effect on prices from or proof tent Co., defendant contends of United Gypsum the rationale States if is established “knowingly” definition of statutory Montana’s This, “a its existence”. Coleman high probability finds jury as contends, a reasonable doubt beyond with equate proof does not crime charged. element of the an essential Court, (1978), from Coleman opinion In original we There argument. we considered this Mont. P.2d of the renewed issue' us the contention. Consideration rejected in our second it was addressed is since rehearing on proper, 20, 1979, deci Sandstrom supra, opinion Coleman June rehearing. said decision between our sion intervened based, section which the instruction The statute on MCA, 45-2-101(27), defines follows: “knowingly” “ — con- acts with person knowingly respect ‘Knowingly’ an a circumstance described statute offense defining duct *80 circumstance exists. A aware of his conduct or that the when he is conduct de- to the result of with acts knowingly respect person it is he is aware that an offense when defining a statute scribed by will be caused his conduct. by that such result highly probable is an the existence a fact element particular When of of knowledge offense, a is aware is if of person an such established knowledge of such as ‘know- of its terms Equivalent existence. high probability meaning.” same knowledge’ or ‘with have the ing’ as far as this elements of knowledge The statute considers two and, concerned, (1) (2) as to conduct itself knowledge is the case as to that is the result of the the result of conduct. It knowledge “it highly his awareness that is that on the hangs proof conduct conduct.” be caused his by that such result probable [would] and United again evil countermanded in Sandstrom Co., a manner is the in such that instructing jury Gypsum States is when the by is invaded the court. It fact-finding function of the or intrude the duty jury take from away upon instructions 400 intent
find that instruction becomes constitutionally imper- “ intent], ‘A missible for conclusive which presumption [of could not overthrow would eliminate testimony effectively intent 2878; 483 at 98 at ingredient an offense’.” U.S. S.Ct. Morissette, at 72 342 U.S. S.Ct. at 256.
When the Sandstrom United States holdings Gyp context, sum Co. are understood in that examine the one in may here, struction on “knowingly” complained of and determine that is duty not invaded fact-finding jury the Court. The by District Court is function jury when it instructs “a usurping acts with person knowingly result of respect conduct when he is aware [constituting that is probable crime] highly that such result ... be caused his conduct.” The is jury [would] not called to determine upon “high probability” place of doubt”; “reasonable rather it is called on to determine the ex awareness, doubt, of defendant’s istence beyond reasonable that a is result his conduct high probability makes his conduct not, instruction, criminal. The District Court here did using make it mandatory awareness, upon jury find defendant’s nor his conclusively presume awareness. That was left ex finding short, clusively In instruction did jury. not establish a basis, which could presumption not overthrow. testimony On therefore, we find no merit on second attack. ground of has
Montana to define crimes right authority their elements. v. New See Patterson York 432 U.S. 2319, 53 281. S.Ct. L.Ed.2d It consistent with modern concepts as an of intent define awareness conse knowledge probable The United said in quences. States United States v. Supreme Co., 444-45, United States U.S. S.Ct. at Gypsum supra, 2877, with to intent under antitrust laws: respect .we
“. . conclude that action undertaken with knowledge of its *81 ef- probable consequences having requisite anticompetitive can be a fects sufficient for a of criminal predicate finding liability under antitrust laws. considerations fortify
“Several conclusion. The element of
401 intent in the criminal law been as a has viewed bifur- traditionally cated either concept embracing specific requirement purpose or more one of general knowledge or awareness. “ (or is now that a generally accepted who acts omits person ‘[I]t act) (or omission) intends a result act of his under quite two dif- (1) result, ferent circumstances: he when desires consciously conduct; whatever the likelihood of that result from his happening (2) and when knew he that the result is certain to follow practically conduct, from his his whatever desire be as may to that result.’ (Citing authority.) this limited distinction between
“Generally knowledge pur- has not been considered ‘there pose important since reason good whether the defendant imposing liability desired or merely knew of the certainty-of the result.’ practical (Citing authority.) In circumstance, either the defendants are in a consciously behaving , the law way and such conduct is prohibits fitting object criminal punishment. (Citing authority.)”
3. DISTINCTION BETWEEN EX POST FACTO AND RETROACTIVE RESTRICTIONS. briefs
Nothing or on the has been to our rehearing brought attention us to requiring our discussion of these issues in expand 20, 1979, opinion our promulgated for the citation except June (La.1979), 533, v. Coleman State Collins 370 So.2d and Miller (Tenn.1979), v. State 584 758. S.W.2d Collins, decided,
In State v. the Louisiana Court on retroactive effect, without reference to ex grounds, specific that the post facto of the death aby barred Louisiana statute application Montana, similar to that of that no section revised statutes is retroactive unless so stated. expressly The defendant there com- mitted offense first murder at time when first degree murder statute that whoever committed the of- degree provided must be fense death. the United punished by Following States decision in 428 Roberts v. Louisiana U.S. enacted new effec- S.Ct. L.Ed.2d Louisiana statutes committed, tive after the offense here was days “redefining *82 402 first murder and enacting permissive,
crime of
degree
constitutional,
.
death
.
370 So.2d
534. It
presumably
redefined the punish-
therefore that Louisiana not only
appears
Montana,
murder,
crime. In
ment
but redefined the
redefining
punish-
took
only
procedural step
legislature
basis, as
ex
ment.
our earlier discussion respecting
post
On
fac-
disclose,
v. Collins is
and retroactive
State
provisions
case at bar.
from the
distinguishable
State,
in
v.
there is
factor Miller
Similarly,
distinguishing
has a
states:
The Tennessee constitution
which
provision
supra.
of acts committed
“That laws made for the
previous
punishment
laws,
criminal,
them
declared
the existence of such
only
Government;
of a free
wherefore no
are
contrary
principles
law shall be made.”
It
(1798), 3 U.S.
of Calder v. Bull
of the effect
determination
our
386,
648,
(3.Dall.)
and the four broad
1
as to retroactivity
L.Ed.
(1935),
laws set
v.
of ex
out State Rowe
classifications
post facto
48,
584
at 761.
We that in Smith Com. note in passing 135, statute was 1975 death penalty where Virginia’s 248 S.E.2d United Supreme valid States Court spite presumptively similar death penalty constitutionality attacking decisions law amending and a 1977 Virginia statutes penalty; uphold previous applied statute were ameliorative. It changes the 1977 found that Virginia pro- law an alternative penalty because the 1977 provided so found of the 1975 law. of mandatory penalty provision vision instead on Relying in Montana. same situation occurred was the This v. 432 U.S. S.Ct. Florida Dobbert no ex post Court found the Virginia Supreme L.Ed.2d facto “ violations since the defendant had ‘fair of the conse- warning’ 147. found quences Virginia of murder.” 248 S.E.2d at that the were ameliorative and changes merely procedural. find
Since we no reason to reverse our compelling opinion statute, we the 1977 Montana death respecting application we hold to what said on on subject opinion promulgated 20, 1979. June
4. THE NEW MONTANA CAPITAL PUNISHMENT *83 ARE UNCONSTITUTIONAL. STATUTES force The is argument Coleman’s here that section 46-18-305, MCA, 1947, 95-2206.10, formerly section R.C.M. pro court, case, vides that the a death sentencing in can penalty only consider those circumstances substantial “mitigating sufficiently to call for leniency.” Coleman contends that such limits language che court’s discretion to only circumstances substan “sufficiently (1978), tial” and is not within the v. in Lockett Ohio 438 holding 586, 2954, 973, U.S. 98 57 S.Ct. L.Ed.2d that the sentencing body must not be precluded from of the defend considering any aspect ant’s record or as a character factor. mitigating
To state the converse of Coleman’s on this issue is position refute the argument. A court should not on sentencing rely “miti- circumstances call gating substantial to for sufficiently leniency.” limit placed upon court’s discretion under section MCA, 46-18-305, substantial; is that the factor must be mitigating is, it must have some substance We weight. cannot regard statutory language sufficiently substantial requiring factor as a mitigating limiting encroachment the discretion upon when he sentence in judge cases. passes capital 5. Whether Coleman’s Death Sentence is Disproportionate to Crime, Review, His What is and Scope Court’s Coleman’s a Further Request Review Cases. Comparitive for
We issues raised on the lump foregoing petition rehearing because can be more together they easily answered one subject. First we refer that occurred again after developments 238, (1972), decision in Furman v. 408 92 U.S. S.Ct. Georgia 404
2726, 346, system it was held that statutory 33 L.Ed.2d wherein in the unbridled discretion which allows the sentencing authority violated the Eighth of imposing process Amendments. Fourteenth brought eventually was the decision that about
It Furman law so as to the mandatory of Montana’s replace recodification the sentenc- gave which sentencing with provisions sentence. Under pronouncing alternatives follow judge ing 262, 2950, (1976), 49 L.Ed.2d v. Texas 428 96 S.Ct. U.S. Jurek 929; (1976), 428 49 v. U.S. S.Ct. Florida Proffitt 913; 153, 96 v. U.S. S.Ct. Georgia L.Ed.2d Gregg 859, it clear that does not require Furman L.Ed.2d if be eliminated discretion of the trial court all sentencing standards to exercise adequate guide statutory system provides cases. capital the discretion 46-18-301-310, was the of sections adoption Montana’s response MCA, discretion of the District Those sections guide inclusive. cir- mitigating circumstances both as aggravating may its impose sentence. The District Court cumstances in passing cir- one or more of the aggravating of death if it finds sentence are no cir- mitigating and also finds there described cumstances Findings to call for leniency. substantial sufficiently cumstances *84 review the and automatic of the District Court required fact are in all death sentences is also provided. Court Supreme to death sentences with our Court respect The duties of Supreme statute, 46-18-310, Under this that section MCA. set forth in is determine: shall aswell any consider the punishment court shall “The supreme sentence, With of regard by way appeal. errors enumerated “(1) death was whether the sentence of shall determine: the court other ar- or prejudice, under the influence passion, imposed factor; find- “(2) judge’s evidence whether the supports bitrary of the aggravating nonexistence the existence or ing 46-18-304; and enumerated in 46-18-303 circumstances mitigating and
“(3) whether the sentence of death is excessive or dispropor- cases, tionate to the in penalty imposed similar both considering the crime and the defendant. The shall its include in decision a reference to those similar cases it took into consideration.” review, (1)
Coleman makes two our that arguments respecting 46-18-308, we have not reviewed the “entire record” under section MCA, reviewed, contends, because we have not Coleman the issues (2) raised on his first and that we have appeal not reviewed all the 46-18-310(3), “similar cases” under appropriate section MCA. Needless to say, when the matter came to this Court for automatic review after the death sentence was there reimposed, came with it not the record but the entire resentencing, record of trial. We also had before us the briefs and records that understood, therefore, related to the first opinion. It should be connection with the second opinion promulgated June that we have supra, in fact reviewed the entire record.
Further we see no reason to our change with position to the similar respect cases that we looked inat order to determine whether or not the death sentence in Coleman’s case was dispro be, We take portionate. our duty connection with whether a death sentence is disproportionate, we should review the cir cumstances the crime accused, which defendant is and in circumstances, of those light judgment the sentence and, thereupon imposed; crimes, examine cases similar involving all to make single purpose, certain that as far as the defendant case, Coleman, concerned, there has been no action discriminatory on the part no abuse sentencing judge, of discretion that the judge, sentencing judge has considered and applied fairly without discrimination the law. We applicable find this to be true in this case. It should be understood that in the final analysis, of sentence is imposition not one that this Court must undertake. That matter is still reserved under our statutes to the District is a Courts. There discretion vested in the District Court in cases as capital to whether the should be Once that discretion has imposed. been exer-
cised, in- and we find it been exercised fairly, if that has statues, and in accordance with the then discriminately applicable involves it must be The search for disproportionateness upheld. crime, consider the with brutality elements that gravity factors, any, have been committed and the if which may which We for the even-handed lead call for look leniency. application sex, color, creed, race, or regard of death sentences without When we find that this has other consideration. any discriminating here, occurred, law to as we our under the is uphold find course the District decision of Court. and Unusual Punishment. as Cruel
6. Hanging if car even hanging, here is that contention Coleman’s neck, cruel death results from broken so that exactly, ried out and unusual punishment. this case that evidence in there is no
The State responds out, is any- carried when properly that death from hanging, shows immediate, results in or that hanging swift other than thing or other with electrocution that associated suffering more than modes of execution. Montana provided kind of execution is the
Hanging it, although to change not seen fit has statutes. The legislature made to eliminate have been in recent years several attempts sense, legislature that limited In áltogether. punishment capital We no have provisions. present has made choice to continue law, we say nor can settled these change provisions power and unusual. cruel is constitutionally hanging 7. Disposition. handed down opinion addition our
This opinion June case. decision in this constitutes our to the District Court this Court be issued from Let remittitur date, with and complying the execution purpose resetting 20, 1979. and order promulgated our opinion June DALY HASWELL MR. CHIEF JUSTICES JUSTICE concur. HARRISON
MR. in in SHEA concurring part dissenting part: JUSTICE I concur in the this conclusion reached Court that so- called instruction in this case was not error. Sandstrom-type given reasons, As the Court is substantially instruction different than hand, that which was in the case. On the other given Sandstrom I do not believe that it was a model instruction which should as a given matter of course in criminal trials.
One
the reasons this Court
defendant’s
granted
for
petition
was to consider the
rehearing
the decision of
impact
the United
States
(1979),--U.S.
Court in Sandstrom v.
Supreme
Montana
--,
have, moreover,
S.Ct.
Although in defendant case given Coleman’s was instruction, not a I believe that the Sandstrom-type court has instruction, omitted the fact to even strongest why assuming Sandstrom, awas of that in was harmless carbon-copy given er- ror. The fact is that defendant Coleman he simple testified that was homicide; it; and, not he present during had to do with nothing indeed, that he did not know that Nank to kill Miss planned essence, Sandstrom, Harstad. In the defense was In alibi. on the hand, other the defendant admitted killing, but his defense was that he did intend to a kill. There is world of difference these two defenses and there so is a world difference as to the potential a impact instruction. Sandstrom-type case, In the Coleman Nank testified in lurid detail his concerning and defendant Coleman’s to plan kidnap, kill Miss rape, Harstad. The was jury thus two clear given choices: To believe Coleman’s alibi defense and thus conclude that Nank alone hand, Harstad; or, on the other to and killed Miss
planned in a Nank’s which Coleman testimony implicated believe kill Nank’s and Miss Harstad. rape, deliberate design kidnap, evidence implicating with the corroborating combined testimony, involved, sufficient reasonable beyond crimes Coleman doubt, was guilty conclusion Coleman jury permit circumstances, was Under these crimes for which he convicted. course, (which, also implies chose to believe Nank once the jury no was in- that Coleman no lying), presumption determination along. was case For help prosecution’s ference needed reason, instruction that even if the have no trouble concluding I the Sandstrom of that instruction forbidden carbon-copy *87 doubt, case, error, was harmless. a reasonable beyond opin- an extent its upon original has embellished to The majority case, and I decided in the original ion the other issues concerning and conclu- these statements that I do not with agree emphasize sions. here, stated has of its the last paragraph opinion
In 20, 1979, with the together Opinion its dated Opinion June dissented to in this case. I shall constitute the today, opinion issued dissent also state here that such shall opinion I majority surrounding imposition views on the questions constitute my saved Nank’s with the State bargain in this case. the death penalty life; date with same sealed Coleman’s bargain but this very his own results sanction such disparate should executioner. No court crimes. tragedy the same from the commission of arising com- is only Nank Coleman killing senseless perpetrated this Court has which senseless of Coleman killing pounded sanctioned. today