                          No. 14448
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                              1979

                          -
STATE OF MONTANA,
                   Plaintiff and Respondent,


DEWEY EUGENE COLEMAN,
                   Defendant and Appellant.


Appeal from:    District Court of the Sixteenth Judicial District,
                Honorable A. B. Martin, Judge presiding.
Counsel of Record:
    For Appellant:
          Moses, Tolliver and Wright, Billings, Montana
          Charles F. Moses argued, Billings, Montana
    For Respondent :
          Hon. Mike Greely, Attorney General, Helena, Montana
          Mike McCarter argued, Assistant Attorney General,
           Helena, Montana
          John S. Forsythe, County Attorney, Forsyth, Montana


                               Submitted:     January 29, 1979
                                 Decided:   JUN 2 0 1979
Filed:   3Ulj 2 . ?9E
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.


        This matter comes before the Montana Supreme Court from
the District Court, Sixteenth Judicial District, Rosebud
County, under the automatic review provisions of sections
95-2206.12 through 95-2206.15, R.C.M. 1947, now sections 46-

18-307 through 46-18-310 MCA.     In felony convictions not
involving the imposition of the death penalty, it is the

function of this Court to review the record and determine if
any errors have been committed resulting in the imposition
of an illegal sentence, while it is the function of the
Sentence Review Division to determine if a legal sentence is
appropriate in the circumstances.    State v. McKenzie (1978),

     Mont .        , 581 P.2d 1205, 1229, 35 St.Rep. 759; State
v. Simtob (1969), 154 Mont. 286, 462 P.2d 873, 874; sections
46-18-901 to 905 MCA. However, when the death penalty has
been imposed, the Legislature has directed this Court,
because of the nature of the penalty involved, to undertake
expeditiously both functions.    Sections46-18-307, -308 MCA;
Minutes of State Senate Judiciary Committee, January 28,

1977.    We recognize that in McKenzie the Sentence Review
Division was allowed to conduct a review of the death penalty
imposed, however, the defendant in McKenzie was sentenced
under statutes different from those involved in this appeal.

581 P.2d at 1227.    Because the review conducted by this
Court statutorily stands in place of any recourse to the
Sentence Review Division, the completion of this review will
mark the end of state action upon this cause, ~xceptingany
action upon a petition for rehearing.
        Defendant, Dewey Eugene Coleman has been sentenced to

death for the crime of aggravated kidnapping under a judgment
                           -2-
and order entered by the District Court, July 10, 1978.
        The facts on which Dewey Eugene Coleman was found
guilty by a jury on November 14, 1976, are set out in his
earlier appeal to this Court, which we decided April 26,
1978.     State v. Coleman (1978),         Mont   .   , 579 P.2d
732, 35 St.Rep. 560.     We need not repeat those incidents

here.
     Defendant had been convicted of the crimes of deliberate
homicide, aggravated kidnapping, and sexual intercourse

without consent, violations of sections 94-5-102, 94-5-303,
and 94-5-503, R.C.M. 1947, now sections 45-5-102, 45-5-303,
45-5-503 MCA.     By our decision in the Coleman appeal, we

remanded the case to the District Court for resentencing

on count 11, aggravated kidnapping, and count 111, sexual

intercourse without consent.      The judgment of conviction on
count I, deliberate homicide and the sentence thereupon
imposed, were affirmed.
     The District Court on remand set a sentencing hearing
"in accordance with section 95-2206.06 through 95-2206.11,

R.C.M.,   as amended" for June 14, 1978.    At that hearing,

the court denied a motion of defendant to quash and ordered
the presentence report be filed.     Neither party presented
any witnesses or other evidence.
     Thereafter the court set July 10, 1978 as the date for
sentencing.     On that date, the District Court handed counsel
for defendant and the State, a copy of its written findings,

judgment and order.    After argument was presented, the District
Court then signed and filed its findings, judgment and order.
     The District Court found and concluded that the
aggravating circumstances set forth in section 93-2206.8(7)1
                            -3-
R.C.M. 1947, existed because the offense of aggravated
kidnapping had been committed by defendant and it had resulted
in the death of the victim, Miss Peggy Harstad; that none of
the mitigating circumstances listed in section 95-2206.9,
were sufficiently substantial to call for leniency in this
case; and that the only mitigating circumstance technically
present was that the defendant had no record history of
prior criminal activity.
     By reason of his findings and conclusions, the District
Court ordered that the defendant Dewey Eugene Coleman be
hanged between the hours of 6:00 a.m. and 6:00 p.m. on the
31st day following the completion of the automatic review of
his case by this Court, said execution to be supervised by
the sheriff of Yellowstone County.    The District Court
further ordered that defendant be sentenced to a term of 20
years for the crime of sexual intercourse without consent,
and that such sentence be served consecutively to his sentence
of 100 years for deliberate homicide, which had previously
been assessed against the defendant and which was not disturbed
on his appeal.
    As a result of his trial in November 1975, defendant was
then sentenced by the District Court to 100 years on count I,
deliberate homicide; to death by hanging on count 11,
aggravated kidnapping; and to 40 years on count 111, sexual
intercourse without consent inflicting bodily injury.      One
of the questions decided by this Court on the first Coleman
appeal was that his sentence of death by hanging was invalid
under the statutes then in effect.
     At the time of defendant's trial, the death penalty
statute in Montana for aggravated kidnapping was section
94-5-304, R.C.M. 1947.     It read:
                                -4-
     "A court shall impose the sentence of death
     following conviction of aggravated kidnapping
     if it finds the victim is dead as the result
     of the criminal conduct."
Defendant was sentenced to death under this statute.

     Section 94-5-304 which had been enacted in 1973 (Ch.
513, Laws of Montana (1973)) and amended in 1974 (Ch. 126,

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

the State Legislature (Ch. 338, Laws of Montana (1977)1.
In the same enactment new death penalty statutes were
codified in sections 95-2206.6 through 95-2206.15, R.C.M.
1947, now sections46-18-301 through 46-18-310 MCA.

     In the first Coleman appeal, we held that because former
section 94-5-304 mandatorily imposed the death penalty, it
was constitutionally impermissible under United States
Supreme Court decisions in Woodson v. North Carolina (1976),
428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; Coker v. Georgia

(1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982; and
Roberts v. Louisiana (1977), 431 U.S. 633, 97 S.Ct. 1993, 52

L.Ed.2d 637.   This Court thereupon held that the death

penalty assessed against defendant on November 21, 1975,

must be set aside and, for reasons not important here, that
the 40 year sentence on the count of sexual intercourse
without consent must also be set aside.   We remanded the
case to District Court for resentencing on the counts of
aggravated kidnapping and sexual intercourse without consent,

without instructions to the District Court as to which law was
applicable with respect to the resentencing of the defendant.
     When the cause was received by the District Court on remand,
the District Court determined that it would apply the new
sentencing statutes that included the death penalty.    The

District Court then used the 1977 statute to assess the death
penalty against defendant.
     Defendant raises 19 specifications of error in this
appeal.   We will discuss these alleged errors within the

broader context of the issue to which they relate.     We frame
the issues presented in this review in the following manner:
     1.   Did defendant's conviction on the count of deliberate
homicide and the count of aggravated kidnapping constitute

double jeopardy?

     2.   Were the present Montana capital punishment provisions,
sections 95-2206.6 through 95-2206.15, R.C.M.     1947, now

sections 46-18-301 through 46-18-310 I C A applicable in
resentencing defendant?
     3.   Do Montana's capital punishment provisions violate
constitutional standards?

     4.   Was defendant denied a fair opportunity to present

argument and evidence with respect to sentencing?

     5.   Is defendant's sentence of death disproportionate
to his crime with respect to sentences imposed in similar
cases, or was it the product of passion, prejudice or other
arbitrary factors?
     6.   If the capital punishment provisions are valid and

applicable, must this Court, in its review of the sentence,

reconsider issues raised and disposed of in defendant's
first appeal?
     We first address the issue raised by defendant that
his conviction of aggravated kidnapping, in light of his
conviction of deliberate homicide based upon the felony of
kidnapping, has placed him twice in jeopardy.     Defendant
contends the aggravated kidnapping conviction is barred by
the Fifth Amendment to the United States Constitution and
the 1972 Montana Constitution, Art. 11,-   S25.   Defendant
                          -6-
also argues this conviction is barred statutorily by

section 95-1711, R.C.M. 1947, now section 46-11-501, -502
MCA .
        The Fifth Amendment to the Federal Constitution states

no person shall "be subject for the same offense to be
twice put in jeopardy    . . ."   The 1972 Montana Constitution
Art. 11, 525, states "no person shall be again put in
jeopardy for the same offense."     Defendant has been subjected

to but one trial, however, these double jeopardy provisions

also protect offenders from multiple punishment for the same
offense.     Ex Parte Lange (1873), 85 U.S.   (18 Wall.) 163,
173, 21 L.Ed. 872; Matter of Ratzlaff (19771,             Mont .

        , 564 P.2d 1312, 1316, 34 St.Rep. 470.
        Defendant has contended his conviction on the count
of deliberate homicide is upon the same set of facts as

his conviction on the count of aggravated kidnapping, thus
he has been exposed to double jeopardy.       We determine the
prohibition against double jeopardy has not been violated
in this case.

        Count I of the information charging defendant reads
as follows:
        "Count I: That the defendant purposely and
        knowingiy caused the death of another human
        being, to-wit: Peggy Lee Harstad, while engaged
        in the commission of the following felonies:

        "Kidnapping and Sexual Intercourse Without
        Consent, involving the use of physical force
        and violence against the said Peggy Lee 3arstad."
Count I1 of the information reads as follows:
        "Count 11: That the defendant knowingly and
        purposely and without lawful authority restrained
        another person, to-wit: Peggy Lee Harstad, by
        holding her in a place of isolation and by using
        physical force to facilitate the Commission of a
        felony, to-wit: Sexual Intercourse Without Zonsent
        and for the purpose of inflicting bodily injury
        on and terrorizing the said victim, Peggy Lee
        Harstad, resulting in the death of Peggy Lee
        Harstad. "
        The established test for determining whether two

offenses are sufficiently distinguishable to permit the

imposition of cumulative punishment was stated in Blockburger
v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 76


        "The applicable rule is that where the same act
        or transaction constitutes a violation of two
        distinct statutory provisions, - - - - be
                                       the test to
        applied to determine whether there are two
        ottenses or only one, is whether each provision
        requires proof - - additional ---the
                       of an            fact which
        other does- .
              -    not   . ." (Emphasis added.)
As the United States Supreme Court noted in Brown v. Ohio
(1977), 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187,
this test emphasizes the elements of the two crimes.       Rejecting

a defendant's claim of double jeopardy, this Court stated in
State v. Davis (1978),         Mont   .    ,   577 P.2d 375, 35
St.Rep. 381, "'A single act may be an offense against two

statutes; and if each statute requires proof of an additional
fact which the other does not, an acquittal or conviction
under either statute does not exempt the defendant from
prosecution and punishment under the other.'" 577 P.2d at
377.     (Quoting from Morey v. Commonwealth (1871), 108 Mass.

433.)    Thus, our inquiry in the present appeal is directed
to the elements of proof necessary to establish each count
of the information.
        To establish count I of the information the prosecution
had to prove the defendant (1) purposely and knowingly
(2) caused the death of another human being (3) while committing
the felonies of kidnapping and (4) sexual intercourse without

consent.     To establish count I1 of the information the prosecution
had to prove the defendant (1) knowingly and purposely (2)

without lawful authority (3) restrained another person by

holding her in a place of isolation and by using physical
force (4) to facilitate the commission of sexual intercourse

without consent and (5) for the purpose of inflicting bodily
injury on and terrorizing the victim.     Both counts required

proof of a "purposely and knowingly" mental state, proof of
kidnapping and proof of sexual intercourse without consent.

However, count I, in addition, required proof of the death
of the victim which count I1 did not; and count I1 required
proof of a purpose to inflict bodily injury and terrorize
the victim which count I did not.    The offenses of deliberate
homicide (former section 94-5-102, R.C.M.    1947, now section

45-5-102 MCA) and aggravated kidnapping (former section
94-5-302, R.C.M. 1947, now section 45-5-302 MCA) are separate

and distinct offenses in our codes and each requires proof
of elements the other does not.     Therefore, defendant may be

convicted and sentenced for both count I and count I1 of the
information without violating the double jeopardy prohibition
even though the counts arose from the same conduct or episode.

Brown, 432 U.S. at 166; United States v. Eagle (8th Cir.
1978), 586 F.2d 1193, 1196 (defendant's conviction of assault
with a deadly weapon and assault resulting in serious bodily
injury each arising from same shooting incident affirmed);
Kowalski v. Parratt (8th Cir. 1976), 533 F.2d 1071, 1073-74

cert-den. 429 U.S. 844, 50 L.Ed.2d 115, 97 S.Ct. 125, (con-
viction of robbery and using a firearm in commission of same
robbery affirmed); Smith v. Gaffney (10th Cir. 1972), 462
F.2d 663, 665-666 (conviction of burglary and larceny based
upon same transaction affirmed) :    Davis, 577 P. 2d at 377.
     Arguments made by defendant in this appeal were also
made by the defendant in Williams v. Oklahoma (1959), 358 U.S.
576, 79 S.Ct. 421, 3 L.Ed.2d 516.    There the defendant
had kidnapped and murdered his victim.       Me pled guilty to

the murder charge and received a life sentence.      Defendant

was then charged with kidnapping, pled guilty and received the
death penalty after the sentencing court considered the
homicide as an aggravating circumstance.      Defendant challenged

the death sentence on the grounds it was disproportionate
to the life sentence given him for the homicide and on the
grounds it constituted a second punishment for the same crime.

The United States Supreme Court rejected defendant's claims
stating Oklahoma law clearly made kidnapping and homicide separate
and distinct offenses; therefore there was no merit in the
argument that the "lesser crime" of kidnapping "merged" into the
"greater crime" of murder so as to bar any sentence, or at

least a greater sentence than was imposed for the homicide.
358 U.S. at 587.    The Court also stated:

     "[Tlhe Due Process Clause of the Fourteenth
     Amendment does not, nor does anything - -
                         --                in the
     Constitution, require a State to fix or impose
     any particular penalty-for any crime it may
     define or to impose the same or 'proportionate'
     sentences E r separateanandependent crimes.
     Therefore we cannot say that the sentence to
     death for the kidnapping, which was within the
     range of punishments authorized for that crime
     by the law of the State, denied to petitioner
     due process of law or - other constitutional
                        - any
     right." 358 U.S. at 586. (Emphasis added.)
We conclude defendant's conviction of both count I, deliberate

homicide, and count 11, aggravated kidnapping, did not transgress
any constitutional inhibitions, federal or state, against
double jeopardy.
     Defendant has also argued his aggravated kidnapping con-
viction is barred by the operation of section 95-1711(2),
R.C.M.   1947, now section 46-11-502 MCA.    Defendant argues the
aggravated kidnapping count is an "included offense" in
the count of deliberate homicide and he therefore may not
be, under section 95-1711(2)(a), now section 46-11-502 (1)
MCA, convicted of that count.   Section 95-1711(1) (b),
R.C.M. 1947, now section 46-11-501(2)(a) MCA, defines "included
offense" in pertinent part as an offense "established by proof
of the same or less than all the facts required to establish
the commission of the offense charged."   An accused may not be
convicted of more than one offense if one offense is included
in the other.   Section 95-1711(2)(a), R.C.M.   1947, now

section 46-11-502(1) MCA.   However, as the discussion above makes
clear, to establish deliberate homicide and to establish aggravated
kidnapping require proof of distinct and separate elements.
In such a case the statutory provisions recited do not bar the
conviction for aggravated kidnapping, State v. Perry (1979),
    Mont .        , 590 P.2d 1129, 1131, 36 St.Rep. 291, and
defendant's double jeopardy claim fails on this point as well.
     The next issue with which we are confronted is whether
ex post facto provisions in the federal and state constitutions
--
or the statutorily codified rule of construction against retro-
activity (section 12-201, R.C.M. 1947, now section 1-2-109 MCA)
prevent application of the sentencing statutes enacted in 1977
to this defendant.   As was indicated in the recitation of
facts, defendant committed the crime with which he was charged in
1974, however, upon resentencing after our remand, the District
Court applied the statutes enacted in 1977.     Defendant argues
this violates the constitutional prohibition against - -
                                                     ex post
facto laws as well as the statutory provision against retro-
activity.    Defendant further argues he is entitled to be
sentenced under the law in effect at the time the crime was
committed.    Because this Court has declared the provision
mandating the death penalty which was effective at that
time to be unconstitutional, defendant contends the maximum
sentence he may receive is 100 years in prison.
     In considering this issue, it must be initially deter-
mined what would cause the application of the 1977 statutes to
an act committed in 1974 to run afoul of the - -
                                             ex post facto
prohibition and the statutory rule of construction against
retroactivity.    Therefore what makes a statute - -
                                                 ex post facto
or "retroactive" becomes the keystone consideration.         Simply
because a statute operates on events antecedent to its
effective date does not make the statute - -
                                         ex post facto,
Calder v. Bull (1798), 1 U.S.    (3 Dall.) 269, 273, nor does
such operation make a law prohibitively retroactive.        Cox v.
Hart (1922), 260 U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332.
Thus the effect the statute will have must determine its
validity with respect to - -
                         ex post facto or retroactive inhibitions.
     The constitutional prohibition against - -
                                            ex post facto
laws has its roots in the desire on the part of the framers
of the United States Constitution to prevent the sovereign
authority from making acts criminal which were innocent when
committed as had been done by the British crown.      Calder,
1 U.S. at 271-272.    The Court in Calder noted the advocates
of such laws were stimulated by ambition, or personal resent-
ment and vindictive malice and "to prevent such, and similar
acts of violence and injustice    . . .   the federal and state
legislatures were prohibited from passing any      . . .   --
                                                           ex post
facto law."    Calder.   The constitutional inhibition of -
                                                          ex
post facto laws
--                was thus intended "to secure substantial
personal rights against arbitrary and oppressive legislative
action."   Malloy v. South Carolina (1915), 237 U.S. 180, 183,
35 S.Ct.      507; 59 L.Ed. 905; Beazell v. Ohio (1925), 269 U.S.
     Summarizing more than a century of definitions Justice
Stone writing for a unanimous court in Beazell stated that:
     "[Alny statute which punishes as a crime an act
     previously committed, which was innocent when
     done; which makes more burdensome the punishment
     for a crime, after its commission, or which
     deprives one charged with crime of any defense
     available according to law at the time when the
     act was committed, is proh ibited as ex post
     facto. The constitutional prohibition ZKTthe
     judicial interpretation of it rest upon the
     notion that laws, whatever their form, which
     purport to make innocent acts criminal after the
     event, or to aggravate an offense, are harsh
     and oppressive, and that the criminal quality
     attributable to an act, either by the legal
     detinition oftheo-nse     or by the nature or
     amount of punishment imposed for its commission,
     should not-be altered by legislative enactment,
     after -- to -
           thefact, - thedisadvantage - - of the
     accused." 269 U.S. at 169-170. (~mphasis    added.)
     Clearly the important question in determining whether a
subsequent statute and its application transgress this
inhibition is whether some substantial right of the accused
is materially affected.   However, the Supreme Court has
iterated the proposition that changes in procedure not
                                                  -
affecting materially the rights of a defendant do not come
within the constitutional prohibition.
     For example, the State of Utah altered its rule governing
the qualifications of witnesses, allowing felons to testify,
after the accused committed the act but before his trial.
The Court in Hopt v. Territory of Utah (1884), 110 U.S. 574,
4 S.Ct. 202, 28 L.Ed. 262, dismissed the - -
                                         ex post facto claim

based on this change even though the change had detrimental
effect stating:
     'I.  .
         . [A]lterations which do not increase the
     punishment, nor change the ingredients of the
     offense or the ultimate facts necessary
     to establish guilt, but--leaving untouched the
     nature of the crime and the amount or degree of
     proof essential to conviction--only removes
     restrictions upon the competency of certain classes
            -
        of persons as witnesses, relate to modes of
        procedures only, in which no one can be said
        - - have a vested r i g h t , n F w m t h e s t a t e ,
        to -                                       --
        upon grounds - public policy, may regulate
                      of
        - lea sure." 110 U.S. at 590.
        at L   -
                                                  (Emphasis
        added. )
Although the Court in Thompson v. State of Utah (1898), 170
u.s .   343, 18 S.Ct. 620, 42 L.Ed. 1061, found the cha.nge from

requiring a panel of 12 jurors to requiring a panel of 8, to
have substantially affected the accused's rights and there-

fore be --- facto, it stated no one had a vested right
        ex post
in mere modes of procedure.          170 U.S. at 352.       Furthermore,
"statutes regulating procedure, if they leave untouched all
the substantial protections with which existing law surrounds
the person accused of crime, are not within the constitutional

inhibition of - -
              ex post facto laws."            170 U.S. at 352.    In

Dobbert v. Florida (1977), 432 U.S. 282, 92 S.Ct. 2290, 53
L.Ed.2d 344, the Supreme Court held that the trial and

sentencing of the accused under statutes not in effect at
the time of his crime did not violate - -
                                      ex post facto prohibitions.
The Court ruled the changes were merely procedural, were
less onerous than the law that had been previously declared

unconstitutional, and did not change the quantum of punish-

ment attached to the crime.          432 U.S. at 292, 294.

        The inhibition upon ex -
                            - post facto laws then, does not

give an accused a right to be tried, in all respects, by the
law in force when the crime charged was committed providing
he has not been deprived of any substantial right or immunity
he possessed at the time of the commission of the offense
                               293-294
charged. Dobbert, 432 U.S. at-?; Malloy, 237 U.S. at 183;
Gibson v. Mississippi (1896), 162 U.S. 565, 590, 16 S.Ct.
904, 40 L.Ed. 1075.        However, the Court has made clear a
change which is labeled procedural will not except it from

- - facto prohibitions if it invades or modifies rights
ex post

of a party charged with a crime.            Kring v. Missouri (1883),
                                -14-
107 U.S. 221, 232, 2 S.Ct. 443, 27 L.Ed. 506.      (The

change in Kring made evidence that was conclusive of innocence
not a factor at all, and in effect increased the punishment

for the offense.)      Just what changes in "procedure" will be
held to be of sufficient moment:

               .
     ". . to transgress the constitutional prohibition
     cannot be embraced within a formula or stated in
     a general proposition. The distinction is one of
     degree. But the constitutional provision was
     intended to secure substantial personal rights
     against arbitrary and oppressive legislation
     .    ..
           and not to limit the legislative control of
     remedies and modes of procedure which do not
     effect matters of substance." (Citations omitted.)
     Beazell, 269 U.S. at 171.

     The Supreme Court has also stated a statute which, when
viewed in the light of reason and common sense, mitigates
the rigor of the law in force at the time a crime was

committed cannot be regarded as - -
                                ex post facto with reference
to that crime.      Rooney v. North Dakota (1905), 196 U.S. 319,
325, 25 S.Ct. 264, 49 L.Ed. 494; Calder, 1 U.S. at 273.
      Section 12-201, R.C.M.    1947, now section 1-2-109 MCA,

states that no law is "retroactive" unless expressly so
declared.      However, this is but a rule of construction and
what is "retroactive" so as to warrant application of the

rule has been defined judicially by this and other courts.
A statute is - "retroactive" merely because it draws upon
             not

antecedent facts for its operation.     Cox v. Hart, 260 U.S.
at 157.    A statute is "retroactive" in a legal sense "which

takes away or impairs vested rights acquired under existing

laws or creates a new obligation, imposes a new duty or
attaches a new disability in respect to transactions already
past. "   City of Harlem v. State Highway Commission (1967),
149 Mont. 281, 425 P.2d 718, 720; Dunham v. Southside National
Bank (1976), 169 Mont. 466, 548 P.2d 1383, 1386; Butte     &

Superior Mining Co., v. McIntyre (1924), 71 Mont. 254, 229

P. 730; Sturges v. Carter (1885), 114 U.S. 511, 5 S.Ct.
1014, 29 L.Ed. 240.
     In 1973, the legislature enacted section 94-5-303,
R.C.M.   1947, now section 45-5-303 MCA, and section 94-5-304,
R.C.M. 1947.    Ch. 513, Laws of Montana (1973). The former
section set forth the elements of the crime of aggravated

kidnapping and stated "a person convicted of aggravated
kidnapping - - be punished
           shall                 death as provided in section

94-5-304 - [imprisonment]
         or                  . . ."   (Emphasis added.) Section
94-5-304, as it then read, imposed the death penalty if the
victim dies as a result of the criminal conduct "unless
there are mitigating circumstances."    The quoted language
was deleted by the 1974 amendment to section 94-5-304,
making the death penalty mandatory in those circumstances
specified.   Ch. 126, Laws of Montana (1974).   Section 94-5-

304 was repealed in 1977 by Ch. 338, Laws of Montana (1977)
which enacted the current scheme for imposition of the death
penalty; that is, providing for a separate sentencing hearing;

consideration of mitigating or aggravating circumstances,
written findings and conclusions, and expedited review of
the sentence.    It is important to note that the original
enactment of section 94-5-303(2), now section 45-5-303(2)

MCA, effective when the crime involved here was committed,
was never altered by the amendments and has always provided
the crime of aggravated kidnapping shall be punished by
death or imprisonment.    The amendments have related only to
the procedure the court must follow in imposing the sentence.

     The 1974 amendment, effective when the crime was committed,
mandated a death penalty if the victim died as a result of
the criminal conduct.    The 1977 amendments ameliorated this,
allowing an exercise of judicial discretion within certain
limits and requiring consideration of mitigating circumstances.
Clearly, the latter amendments lessened the rigor of the
                                                            they,
1974 amendment and are less onerous than the 1974 law.    As such/
on their face, cannot be considered --- facto.
                                    ex post            Calder
v. Bull, 1 U.S. at 273; Rooney v. North Dakota, 196 U.S. at

325; Dobbert v. Florida, 432 U.S. at 292-294.     Because the
accused has no vested right in modes of procedure not mater-
ially affecting his rights, and because the changes in the

law on their face do not impose new obligations or duties or
disabilities in respect to transactions already past, the
changes are also not on their face retroactive.    - -of
                                                   City
Harlem, 425 P.2d at 720; McIntyre, 229 P. at 733.     In fact,

had there been no declaration of unconstitutionality in the
first Coleman decision, the District Court may well have

been obligated to apply the 1977 statutes as their changes
benefited the accused.   Marks v. United States (1977), 430
U.S. 188, 197, 97 S.Ct. 990, 51 L.Ed.2d 260.
                          -
       Because this Court did declare the 1974 amendment
mandating the death penalty unconstitutional, the - -
                                                  ex post

facto and "retroactive" arguments are raised by defendant.
Thus, the crucial question becomes what is the effect of
that declaration.    It must be emphasized the decision in
Coleman, declared unconstitutional only section 94-5-304 as
amended in 1974.    The preceding section 94-5-303, enumerating

the elements of the crime and the potential punishment was
not addressed by the decision and has remained viable since

its enactment in 1973.

       There exists a rule of statutory construction that a
statute declared unconstitutional is considered void -
                                                     ab
initio and has no effect. This proposition is best typified
by the following statement of Justice Field in Norton v.
Shelby (1886), 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed.
178:    "an unconstitutional act is not a law; it confers no
rights; it imposes no duties; it affords no protection; it
creates no office; it is, in legal contemplation, as in-
operative as though it had never been passed."     The aim of
such a rule of construction is to hold the exercise of
legislative power in excess of constitutional limits to be
of no effect.    Field, The Effect - - Unconstitutional
                                   of an

Statute (1935), pp. 8-12.   The author of the cited treatise,
however, indicated the absoluteness of such a doctrine was
breaking down and applauded such development.     Field, p. 12.
Indeed, the United States Supreme Court, which first announced
the doctrine, has indicated the rule is not absolute and has
                                        -
further indicated its recession from that rule.
     In Chicot County Drainage District v. Baxter State Bank

(1940), 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329, where
the validity of a judicial decree based upon a statute sub-
sequently declared unconstitutional was questioned, the
Court indicated the broad statement that appeared in Norton

must be taken with qualifications and in a later decision,
the Supreme Court stated:
    ". . . the effect of a given constitutional
    ruling on prior conduct 'is subject to no
    set "principle of absolute retroactive in-
    validity" but depends upon a consideration
    of "particular relations . . . and particular
    conduct     ...of rights claimed to have become
    vested, of status, of prior determinations deemed
    to have finality" and "of public policy in the
    light of the nature both of the statute and of its
    previous application."'   .       .
                               . However appealing
    the logic of Norton may have been in the
    abstract, - abandonment reflected our recognition
               its
    that statutory or -
                    - even judge-made rules - - of law
    are hard facts on which ~ e o ~ l e
                                  A
                                  . must relv in
    makiiiljTecisioniFandaPing t h e i r c o n d u c ~ "
    Lemon v. Kurtzman (19731, 411 U.S. 192, 198-199,
    93 S.Ct. 1463, 36 L.Ed.2d 151. (Emphasis added.)
    (quotinq from Linkletter v. Walker (1965), 381
    u.-S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 and Chicot
    County Drainage Dist., supra.)
Both Chicot County and Lemon are civil cases but the case
which announced the rule, Norton                Shelby was also a civil
action.     This Court in Ex Parte Anderson (1951), 1 2 5 Mont.
331, 238 P.2d 910, 913, stated "an unconstitutional law is
void, and is as no law.          An offense created by it is not a
crime."     The Court then invalidated an entire criminal
statute because it had been preempted by federal action in
the same area.       In the first Coleman appeal, the statute
declared unconstitutional did not define the crime, rather
related only tc the procedure of imposing sentence.                    Our
action in declaring the prior statute unconstitutional did
not affect the substantial elements of the crime.                   Moreover,
the statement relied upon by the Anderson Court, found in Ex
Parte Siebold (1879), 100 U.S. 371, 376, 2 5 L.Ed. 717, was
dicta in Siebold as the Supreme Court did not find the
statute there in question to be unconstitutional.
      There are "hard facts" present in this appeal which
this Court must consider in making its determination.                     A
fundamental concept of our constitutional liberty is that
the - -
    ex post facto clause is based upon the principle that
persons have the right to fair warning of conduct which will
give rise to criminal penalties.             Marks v. United States,
430 U.S. at 191.        The substantive portion of the aggravated
kidnapping statute, enumerating the elements of the crime
and declaring the quantum of punishment, has not been altered
since its enactment in 1973.            The changes made by the 1977
s t a t u t e s from t h e 1 9 7 4 law ameliorated a m a n d a t o r y death

penalty to one imposed only after certain procedural steps
were taken.      Those procedural steps were followed in the
resentencing of Dewey Coleman.             At the time the crime was
committed the statutes were clear that the penalty of death
was a very probable consequence for the commission of the
crime.
                                 -19-
     The defendant has cited this Court to cases from this
and other jurisdictions and urged us to follow their pre-
cedent and hold the statutes in question here may not be
applied to defendant.     However, those cases can be distinguished.
In State v. Rodgers (1978), 270 S.C. 285, 242 S.E.2d 215,
the defendants were tried, convicted and sentenced under
death penalty statutes enacted in 1974.    Those statutes were
later ruled unconstitutional. The State then petitioned to
have the defendants resentenced under statutes promulgated
in 1977 which were very likely constitutional.     Those statutes
provided for procedural safeguards at all phases of -
                                                 - the
criminal adjudication process from pretrial to sentencing.
The South Carolina Supreme Court denied the State's petition
because the defendants therein did not receive all the
procedural safeguards mandated by the 1977 enactments.        242
S.E.2d at 218.   In the present cause the safeguards enacted

in   1977 related only to the sentencing phase of the criminal
adjudication process and the defendant here did receive
those protections.   In People v. Teron (1979), 151 Cal.Rptr.
633, 588 P.2d 773, the California Supreme Court refused to
apply sentencing provisions enacted in 1977 to a crime
committed in 1975.   The statutes in effect in 1975 had been
declared unconstitutional.     588 P.2d at 780.   Factually the
Teron case is distinguishable from the one here, because the
declaration of unconstitutionality occurred in 1976 while
defendant was not charged with the crime until April 1977
and the 1977 statutes did not become effective until August
1977.   Therefore, when the defendant was charged with his
crime there existed in fact no constitutional death penalty
statutes in California.     588 P.2d at 780.   Here Coleman
committed the crime in 1974, was tried, convicted and sentenced
                            -20-
in 1975, the legislature repealed the 1974 act in 1977, and
this Court declared the 1974 law unconstitutional in 1978.
Unlike Teron, Coleman was tried, and convicted under consti-
tutional statutes, but sentenced under a statute later
declared unconstitutional.
     State v Lindquist (1979),
            .                          Idaho          , 589 P.2d
101, is the strongest authority for Coleman's "retroactive"
argument.   There the defendant committed his crime in 1975,
was tried, convicted and sentenced in 1976.      The laws were
amended in 1977 and when the Idaho court considered the
appeal, after declaring the laws in effect in 1975 and 1976
to be unconstitutional, it was faced with the question
whether the 1977 laws could be applied on resentencing.      The
Court held they could not, on the basis they were retroactive.
589 P.2d at 103.    However, the majority opinion devotes no
discussion to what constitutes a retroactive law, assuming
apparently that because the application of the 1977 laws
would relate to events antecedent to their effective date,
they are retroactive.    589 P.2d at 103, 104.    Clearly such a
discussion is necessary for, as the above discourse indicates,
not all statutes relating to events antecedent to the effect-
ive date of the statutes are retroactive.      The dissent of
Justice Donaldson in Lindquist discusses this point.      589 P.2d
at 112, 113.    Thus the Lindquist opinion loses some of its
authoritative impact for this lack.
     Finally, in State v. Gone (1978),           Mont .         I



587 P.2d 1291, 35 St.Rep. 1540, this Court held that, based
upon the facts there present, the application of laws enacted
after the crime was committed would violate - -
                                            ex post facto
prohibitions.    587 P.2d at 1297. In Gone, a later statute
permitted the sentencing court to impose a sentence without
the possibility of parole, a discretion not granted under
laws in effect when the crime was committed.      Clearly this
later enactment allowed the punishment for the offense to be
aggravated beyond that available when the offense was com-
mitted and was obviously - -
                         ex post facto.     However, here the
later enactments - - aggravate the punishment for the
                 do not
crime, but only change the procedure for imposing the sentence.
The punishment for the crime according to section 94-5-
303(2), R.C.M. 1947, now section 45-5-303(2) MCA, has always
been death or imprisonment.
     The changes made by the 1977 enactments affected only
the manner in which the penalty indicated by statute was to
be determined and imposed.    They did not deprive Coleman of
any defense previously available nor affect the criminal
quality of the act charged.   Nor did they change the legal
definition of the offense or the punishment to be meted out.
They did not make an act criminal which was innocent when
done; they did not increase the penalty for the crime.        he

quantum and kind of proof required to establish guilt, and
all questions which may be considered by the court and jury
in determining guilt or innocence, remained the same.    No
substantial right or immunity pussessed__by.Coleman
                                                  at
the time of the commission of the offense was taken away by the
1977 enactments. Indeed they eased the rigor of the law as
it existed at the time the offense was committed.
     II 1
            ...
            so far as mere modes of procedure are
    concerned, a party has no more right, in a
    criminal than a civil action, to insist that
    his case shall be disposed of under the law in
    force when the act to be investigated is
    charged to have taken place. Remedies must always
    be under the control of the legislature, and it
    would create endless confusion in legal proceedings
    if every case was to be conducted only in accord-
    ance with the rules of practice    ..
                                        . in existence
     when its facts arose. The legislature may   .. .
     prescribe altogether different modes of procedure
     in its discretion, though it cannot lawfully . . .
     dispense with any of those substantial protections
     with which the existing law surrounds the person
     accused of the crime.'" Thompson v. State of Utah,
     170 U.S. at 351, 352 (quoting with approval from
     Cooley on Constitutional Limitations); People v.
     Ward (1958), 50 Cal.2d 702, 328 P.2d 777, 780.
The statutes in question also did not impair vested rights,
or create new duties, obligations, or disabilities with
respect to transactions already past.
     Only if we were to adhere rigidly to the rule of construction
announced in Norton v. Shelby, supra, that a statute declared
unconstitutional is treated as never having had an operational
effect, could the 1977 statutes be read to interfere with
the substantial rights of Dewey Coleman.   Yet the absolute
application of this rule has been abandoned by the Court
which promulgated it, the United States Supreme Court.    To
follow the rule here, as this Court must in order to find an

- - facto violation or "retroactive" effect, would be
ex post
impliedly stating Dewey Coleman at the time he committed his
crime had the omniscience that four years hence the statute
prescribing the procedure for imposing the penalty for the
crime would be declared unconstitutional and that at the
time the crime was committed no valid procedure existed.
Clearly such a conclusion stretches reason to the breaking
point.
     We therefore hold that the District Court properly
applied the 1977 statutes relating to the imposition of the
death penalty to this defendant.
     Having decided no - -
                       ex post facto violations nor transgressions
of the rule against retroactive statutes have occurred, and
the 1977 statutes are applicable here, we reach defendant's
arguments that these statutes are unconstitutional.   At the
outset, we note the Supreme Court has held the punishment of
death does not invariably violate the constitutional prohibition
against cruel and unusual punishment.      Gregg v. Georgia (19761,
428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859.      Furthermore,
the Gregg court indicated that in the abstract, a penalty is

not excessive if it does not involve the wanton and unnecessary

infliction of pain and is not grossly out of proportion to the
severity of the crime.      428 U.S. at 173.   Finally, the court
stated it must presume the validity of a punishment selected
by a democratically elected legislature.       428 U.S at 175.
       As we stated in State v. McKenzie (1978),        Mont   .
       , 581 P.2d 1205, 1228, 35 St.Rep. 759, the United
States Supreme Court in its decisions of Gregg; Proffitt v.

Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913;
and Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49
L.Ed.2d 929, seems to have established three general criteria
which are requisite to a valid scheme for imposing the death
penalty.     First, there must be at least one statutory
aggravating circumstance before a death sentence may be

considered.     Second, the defendant must be afforded the

opportunity to bring before the sentencing body at a separate
sentencing hearing any mitigating circumstances relating to
the individual defendant.     Third, there must be available

prompt judicial review of the sentencing decision by a court
of statewide jurisdiction, providing a means to promote the
evenhanded, rational and consistent imposition of death

sentences under the law.     A refinement of the second criterion
was added by the decision in Lockett v. Ohio (19781,
U.S.         , 98 S.Ct. 2954, 57 L.Ed.2d 973, that the sentencing
body must not be precluded from considering any aspect of
the defendant's record or character as a mitigating factor.
57 L.Ed.2d     at 980.   The death penalty must also not be imposed
mandatorily without only consideration of mitigating factors.
                    jt
Coleman, 579 P.2d     at   741-742,
     Sections 95-2206.6 and 95-2206.7, R.C.M.    1947, now sections
46-18-301 and -302 MCA provide for a separate sentencing hearing
in death penalty cases at which the sentencing court may con-

sider any evidence relevant to the sentence and at which the
defense may argue against the penalty.    Sections 95-2206.8 through
2206.10, R.C.M.   1947, now sections 46-18-303 through-305 MCA
enumerate aggravating and mitigating factors to be considered
and direct the sentencing court to consider one against the

other.   Section 95-2206.11, R.C.M. 1947, now section 46-18-306
MCA provides for written findings supporting the determination

of the court in cases where a death penalty is imposed.     Sections
95-2206.12 through -2206.15, R.C.M.   1947, now sections 46-18-307

through -310.?ICA provide for an expedited review of the death
penalty sentence and set    forth standards by which this Court

must review the sentence.
     Defendant argues sections 95-2206.8, -2206.9, -2206.10, R.C.M.
1947, now sections46-18-303, -304, -305 MCA do not allow for

the proper consideration of mitigating circumstances and in

effect impose a mandatory death penalty should one of the
statutory aggravating circumstances be found.     Defendant's
conception of the operation of these provisions is much too
restricted and we do not agree that they in effect mandate a
death penalty whenever an aggravating circumstance is found.
     Section 95-2206.10, R.C.M.   1947, now section 46-18-305

MCA, instructs the sentencing court to take into account the

aggravating and mitigating circumstances enumerated in

sections 95-2206.8 and -2206.9 and to impose a sentence of
death "if it finds one or more of the aggravating circum:
stances and finds that there are no mitigating circumstances
sufficiently substantial to call for leniency."     (~mphasisadded.)
     The United States Supreme Court has held the Eighth and

Fourteenth Amendments require consideration of the character
                             -25-
and record of the individual offender and the circumstances

of the particular offense in a determination whether to
impose the death penalty.     Woodson v. North Carolina (1976),

428 U.S. at 303-305.    In Jurek, the Court had before it a
statutory scheme that explicitly mentioned only aggravating
circumstances, yet the Court found the scheme constitutional
in light of the Texas Appeals Court's construction of the
scheme requiring consideration of mitigating factors.      428
U.S. at 272-273. Clearly Montana's statutes go farther than
those approved in Jurek by explicitly requiring consideration

of mitigating circumstances, thus making subjective the
sentencing determination as required by Woodson.      We do not
read sections 95-2206.8 through 95-2206.10, R.C.M. 1947, now
sections 46-18-303 through 46-18-305 MCA as mandating the
death penalty upon the finding of an aggravating circumstance,

but rather as requiring consideration of whatever mitigating
circumstances exist to determine if they outweigh the aggravating

circumstances found to be present.

     Defendant argues that Montana's death penalty statutes

would be subject to reversal by the U.S. Supreme Court
because of that court's decision in Lockett v. Ohio, supra,
and its vacation and remand in light of Lockett in Jordan v.
Arizona (1978),        U.S.          , 98 S.Ct. 3138, 57 L.Ed.2d
1157.   An examination of these cases leads us to the opposite

conclusion.   Basically Lockett held a sentencing entity should
not be precluded from considering any aspect of a defendant's
character or record as a mitigating factor.      The Ohio statutes
enumerated three mitigating factors to be considered in
imposing the death penalty and the Supreme Court read this
as limiting the range of factors considered and to exclude
other possibly relevant factors.     57 L.Ed.2d at 991-992.

Similarly in Jordan, the Arizona scheme enumerated mitigating
                              -26-
factors and required their consideration in language identical
to Montana's statute.     See Jordan v. Arizona (1976), 114

Ariz. 452, 561 P.2d 1224.     However, the Arizona enumeration,

like the Ohio enumeration is on its face exclusive, thus

warranting the vacation of the death penalty and remand in
light of Lockett.    Montana's statute does not suffer from
this defect.   Although it enumerates mitigating factors,

section 95-2206.9(1) through ( 7 ) , R.C.M.   1947, now section
46-18-304(1) through (7) MCA, it also clearly indicates the

sentencing body should consider any other fact existing in
mitigation of the penalty.     Section 95-2206.9(8), R.C.M.
1947, now section 46-18-304(8) MCA.       This inclusive factor
was not present in either the Ohio or Arizona scheme.
     Defendant also contends because he received the death
penalty for aggravated kidnapping but only a life sentence
for deliberate homicide, the death penalty imposed constitutes

the cruel and unusual punishment prohibited by the Eighth
Amendment. We do not agree.    As was made clear in Williams
there is no constitutional requirement for the same or
proportionate sentences when the crimes are separate and
independent.   358 U.S. at 586.      We have indicated above the

crimes of deliberate homicide and aggravated kidnapping are
separate and independent crimes and defendant's conviction

of each violated no double jeopardy protections.      Furthermore,
the Supreme Court in Gregg, made clear "when a life has
been taken by an offender [it cannot be said] the punishment

[of death] is invariably disproportionate to the crime."
428 U.S. at 187.     The decision of the Court in Coker v.
Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982,
is relevant only to crimes for which the penalty has been

imposed which did - result in the loss of a life.
                  not                                    Such is

not the case here.

     We have considered defendant's contentions with respect

to jury participation in the sentencing procedure and with
                              -27-
respect to statutory requirements of a finding of guilty

beyond a reasonable doubt in a case where death is a possible
penalty and determine these contentions do not alter our
conclusion as to the constitutionality of sections 95-2206.6

through 95-2206.15, R.C.M.   1947, now sections 46-18-301
through -310 MCA.

     This Court therefore concludes that Montana's statutory
scheme for imposing the death penalty meets the standards

established by the Gregg, Jurek, Proffitt and Woodson decisions.

We further conclude the penalty is not cruel and unusual
simply because Montana's criminal statutes allow its imposition
in this case for the crime of aggravated kidnapping but not
for the crime, as committed here, of deliberate homicide.
     We turn now to defendant's contention that his counsel
was not permitted to present arguments against imposition of

the death penalty, contrary to the mandate of section 95-
2206.7 now section 46-18-302 MCA, which states in pertinent part:
"The state and the defendant or his counsel shall be permitted
to present argument for or against sentence of death."      Defendant
maintains because it appears from the record that the

District Court had already determined the sentence prior to
the July 10, 1978 date set for pronouncing sentence,

defendant was denied the opportunity to present any arguments
against the death penalty.   This contention is without merit.      The
District Court issued an order dated June 2, 1978, clearly indicating
a sentencing hearing was to be held on June 14, 1978, in accord-
ance with sections 95-2206.6 through 95-2206.11, R.C.M.     1947,
now sections 46-18-301 through -306 MCA.   Those sections indicate
what a sentencing court must consider in imposing the death
penalty, including specifically that defendant or his counsel
be allowed to present argument against the death penalty.
     Therefore by the June 2, 1978 order, the defendant and
his counsel were on notice of the proposed content of that
hearing.   However, at the sentencing hearing, defendant
did not present any evidence of mitigating circumstances

other than the presentence report.   No statement against the
death penalty was made other than to suggest certain pro-
cedures to test its constitutional validity before it was in
fact imposed.    Defendant had his opportunity to speak and
did not avail himself of it.    Finally, the District Court
order of July 31, 1978, denying defendant's petition for
rehearing indicates the defendant also did not take advantage
of the District Court's offer to accept proposed findings
and conclusions from the parties with respect to the sentence.
Thus defendant and his counsel had at least two opportunities
to submit argument to the Court regarding the death penalty
prior to the July 10, 1978 hearing, but did not do so.
     We have determined thus far that defendant's conviction
for aggravated kidnapping violated no constitutional prohibitions
against double jeopardy, that the 1977 provisions for imposition
of the death penalty are applicable to this defendant and
furthermore are constitutional, and that this defendant was given
an opportunity to present arguments against the death penalty.
We come now to that part of this appeal which constitutes
a review of the sentence received by defendant.    In conducting
this review, we will consider defendant's arguments regarding
the proportionality of the penalty received in relation to
other factors.
     The decision in Greg2 compels this Court to determine
"whether the punishment of death is disproportionate in relation
to the crime for which it is imposed."     Gregg, 428 U.S. at
187.    In undertaking such a consideration, we are directed
by section 95-2206.15, R.C.M. 1947, now section 46-18-310

MCA to consider whether the sentence was imposed as a result
of passion, prejudice or other arbitrary factors; whether

evidence supports the sentencing court's findings regarding
aggravating and mitigating circumstances; and whether the
sentence is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and
defendant.   We make such an assessment based upon our independent
review of the trial record and transcript, and of the record
and transcript of the sentencing hearing.     In so doing, we

are not usurping the position of the District Court as the
primary sentencing entity in Montana's system of criminal
jurisprudence (see section 95-2212, R.C.M. 1947, now section
46-18-103 MCA); rather we mean to insure that a penalty as

unique in its severity and as irrevocable as the death

penalty is not wantonly and freakishly, or arbitrarily
and capriciously imposed.    See, Furman v. Georgia (1972),

408 U.S. 238, 309-310, 92 S.Ct. 2726, 33 L.Ed.2d 346 (Stewart,
J. concurring); Gregg, 428 U.S. at 188-189.
       Defendant has argued the sentence imposed here was a
result of passion, prejudice or other arbitrary factors.       We
have considered defendant's arguments in this regard and
determined that two warrant discussion.     Defendant argues
the sentences given to Robert Dennis Nank, defendant's
accomplice in this crime, when compared to his own reflect
the prejudice inherent in the sentencing.     Nank, a white man,
pled guilty to the offenses of deliberate homicide and solicitation
to commit sexual intercourse without consent and received 100
year and 40 year sentences respectively.    Defendant argues
because he is black, his sentence of death for crimes
                            -30-
arising from the same incident as those of Nank's reflects
obvious prejudice.     We do not agree.    Nank and this defendant
received similar sentences for similar crimes namely, 100
years for deliberate homicide and 40 and 20 years respectively
for the charges stemming from the act of sexual intercourse
without consent.     However, defendant was also found guilty of
aggravated kidnapping, a charge finally dropped against
Nank.     It is for this crime the death penalty was imposed.
Defendant is correct in his assertion the prosecution refused
to accept his guilty plea to the same charges to which Nank
had pled guilty.    Defendant offered to plead guilty to the same
charges to which Nank had pled guilty, however he insisted such
plea must indicate he was innocent.       The prosecution refused to
accept this offer and we have previously held the refusal of a
conditional offer not to be erroneous.       State v. Coleman, 579
P.2d at 744-745.    We do not find prejudice in defendant's sentencing
simply because of the sentences his accomplice received.
        Defendant has also argued his race was a factor operating
to his prejudice with respect to the imposition of the death

penalty.    However defendant points to no evidence of this
prejudice other than the fact of the sentence and the fact
of his race.    Defendant has speculated as to various possible
factors evidencing such prejudice, but speculation is not
sufficient to establish this claim.       We have examined the
sentence and determine it was not imposed as a result of passion,
prejudice or other arbitrary factors, or because of his race.
        Defendant contends there was evidence of mitigating factors
present and the District Court did not give proper consideration
to evidence when making its findings, conclusions, and when
rendering judgment.    The District Court is required by section
95-2206.10, R.C.M. 1947, now section 46-18-305 MCA to consider
and compare aggravating and mitigating circumstances and can
impose the death penalty only if there exists at least one
aggravating circumstance and no mitigating circumstances of
sufficient substantiality to call for leniency.     Section 95-
2206.10, R.C.M. 1947, now section 46-18-305 MCA.     This Court
is required upon review of the sentence to determine whether
there is evidence to support the District Court's findings
and conclusions regarding aggravating and mitigating circum-
stances.    Defendant admits the District Court properly found
and concluded that the aggravating factor found in section
95-2206.8 (71, R.C.M.   1947, now section 46-18-303 (7), MCA
(death of the victim of aggravated kidnapping) was present.
What we now determine is whether the District Court was
correct in its conclusion that there was no evidence of
mitigating factors sufficiently substantial to call for
leniency.
     Defendant presented no evidence of mitigating circumstances
at the sentencing hearing, though his counsel acknowledged
the existence of the presentence investigation report.     That
report indicated the defendant had no record of criminal
activity and had been an accepted member of the community

where he lived prior to July 4, 1974, the date of the commission
of this crime.   The evidence in this case supporting the
finding of the aggravating circumstance established that the
defendant had been a deliberate, voluntary participant in
the kidnapping and subsequent rape and murder of the victim.

The evidence further established that the death of the
victim occurred after a sexual assault, not in a moment of
passion, but over a period of time with the defendant first
bludgeoning, then attempting to strangle, then finally
drowning the victim in an effort to effectuate a deliberate
decision to kill Peggy Harstad.     Against the record of this
brutal crime, we cannot say that the defendant's lack of
prior criminal activity of record is a factor sufficiently
substantial to call for leniency.      Moreover, the District
Court did consider the mitigating circumstance of defendant's
                            -32-
lack of a criminal record but concluded this circumstance
was offset by evidence that defendant had committed a burglary
on the same day the kidnap, rape and homicide occurred.

Defendant has argued accomplice Nank's testimony, the source
of this evidence, was uncorroborated as to this fact.
However, Nank was sufficiently corroborated on other aspects
of his testimony and we have so held.     Coleman, 579 P.2d at
748.    Where an accomplice has been corroborated as to part
of his testimony and that testimony has been accepted as
truthful, it is proper for the court to infer the accomplice

spoke the truth as to all his testimony.      State v. Phillips

(1953), 127 Mont. 381, 264 P.2d 1009, 1016; Territory v.
Corbett (1877), 3 Mont. 50; Roberts v. State (0kla.crim.
1977), 571 P.2d 129, cert.den. 434 U.S. 957, 98 S.Ct. 485,
54 L.Ed.2d 316; People v. Blau (1956), 140 Cal.2d 193, 294
P.2d 1047; State v. Gross (1948), 31 Wash.2d 202, 196 P.2d
297; 22 C.J.S. Criminal Law, S812 (2).    See also, State v.

Jones (1933), 95 Mont. 317, 26 P.2d 341.     We therefore
determine the District Court was correct in its conclusion.
       We now must compare this sentence to those imposed in
similar cases to determine whether it was excessive or dis-
proportionate to those other sentences.      Section 95-2206.15,

R.C.M. 1947, now section 46-18-310 MCA.      As this is the
first time this Court has reviewed a sentence of death under

the new statutory scheme, we are obligated to define the
scope of our review when considering similar cases.
       It is clear from the decision in Gregg that the purpose
of appellate review in a capital-sentencing system is to
serve as "a check against the random or arbitrary imposition
of the death penalty."    428 U.S. at 206.    (Emphasis added.)
This review eliminates the possibility a death sentence will

be imposed by the action of an "aberrant" sentencing entity.
Gregg, supra.    The Georgia Supreme Court, construing language
identical to that in our own statutes, has stated in considering

similar cases:
            .
     ". . this court is not required to determine
     that less than a death sentence was never imposed
     in a case with some similar characteristics. On
     the contrary, we view it to be our duty under the
     similarity standard to assure that no death
     sentence is affirmed unless in similar cases through-
     out the state the death penalty has been imposed
     generally and not 'wantonly and freakishly' imposed
     as stated by Justice Stewart in his concurring
                                  .
     opinion in [Furman, supra] " Moore v. State
     (1975), 233 Ga. 861, 213 S.E.2d 829, 832 (cited
     with approval in Gregg, 428 U.S. at 205).
     (Emphasis added.)
The emphasis in both Gregg and Moore is on the imposition of
the penalty, not upon the subsequent outcome of any appeal
from that imposition.     See also, Jarrell v. State (1975),
234 Ga. 410, 216 S.E.2d 258; Gregg v. State (1974), 233 Ga.

117, 210 S.E.2d 659.    Indeed, Georgia has indicated it will
consider cases where the penalty has been imposed by the

jury but vacated on appeal for reasons not material to the
sentence.   Stanley v. State (1977), 240 Ga. 341, 241 ~ . ~ , 2 d
173, 180.   Therefore, we conclude in fulfilling our duty to
compare "similar cases" we may include for comparison similar
cases where the sentence has been imposed by the District
Court, even though the sentence has been vacated on appeal.
Of course, such vacation must not have been predicated upon

the sentencing court's acting in a manner contrary to the
standards set forth in section 95-2206.15, R.C.M. 1947, now
section 46-18-310 MCA, nor have resulted in a complete
dismissal of the cause.  Furthermore, based upon Gregg, 428
                                         at
U.S. at 204-206, and Proffitt, 428 U.S./258-259, we determine
we need not examine every similar case whether appealed or
not, rather we need only examine those cases where after
conviction the death penalty could have been or was imposed

that have reached our attention through the appellate process.
Because it is extremely rare that a defendant would

acquiesce in a death sentence, we believe this procedure will
insure we have a more than adequate representation of "similar
cases."   We will thus consider cases where the defendant has

been charged with kidnapping and murder of the victim of
the kidnapping and where the defendant has been charged with
aggravated kidnapping where the victim has been killed.
     A complicating factor in our review of similar cases is
that the last hanging of a criminal defendant in Montana
occurred in 1943.   In the following quarter of a century,
although several heinous murders occurred, the death penalty

was assessed only a few times by District Courts.   During
that period the sentencing entity had unfettered and unguided
discretion with respect to imposition of the death penalty.
Judicial and legislative attitudes have changed, however,
and in the last six to eight years, death penalty revisions
have been enacted and such penalties imposed, spurred
perhaps by the growing incidence of such serious crimes.

Moreover, the crime of aggravated kidnapping has been a
part of our statutory law only since 1973.   Any review of
cases earlier than this decade is virtually meaningless
because the death penalty was not involved unless one goes
far back into our state history.   There are cases, however,
though not large in number, to which we can look for a
meaningful comparison.

     The defendants in State v. Rhodes (1974), 164 Mont.
455, 524 P.2d 1095, were charged with and convicted of
first-degree murder, kidnapping, and robbery.   The defendants
had escaped from jail in Idaho, kidnapped Donald Kalberg
in Montana, who was later found shot to death near Forsyth,

Montana, and were later apprehended in Tennessee after kidnapping
one other person.   The evidence was clear that the defendants

                          -35-
had committed the kidnapping and the "vicious, wanton, cold-

blooded murder of Donald Kalberg."       524 P.2d at 1097. The

District Court sentenced the defendants to death for the
murder charge, and to the maximum penalty allowable for
kidnapping, 10 years imprisonment.       The sentence of the

court for the murder charge was vacated by this Court as a
result of the decision in Furman.       It was - vacated for
                                               not
actions by the District Court contrary to the standards

contained in section 95-2206.15, R.C.M. 1947, now section
46-18-310 MCA, nor were the charges dismissed by this Court.
524 P.2d at 1098.
     The defendant in State v. McKenzie (1978),          Mont    .
     ,   581 P.2d 1205, 35 St.Rep. 759, was charged with

deliberate homicide and aggravated kidnapping as a result of
the bludgeoning death of Lana Harding.      The District Court

imposed the death penalty for both offenses and this Court
affirmed following remand from the United States Supreme
Court.     581 P.2d at 1235.    The victim was found draped over
a grain drill, partially nude, with a rope tied around her
neck, and severely beaten about the head and body.       581 P.2d

at 1210.    Death had been caused by the severe blows.
     These are the convictions that we can construe as

"similar cases".    We note that it is only since 1973 that

the death penalty could be imposed for aggravated kidnapping
where the victim has been killed.       In the case of McKenzie,

where that circumstance has occurred, the penalty has been
invoked.    We also note Montana is a sparsely populated state
and crimes of such violent nature do not occur as frequently
here as they do in more densely populated states.      We

conclude the penalty of death imposed against this defendant
for the aggravated kidnapping of Peggy Harstad which resulted
in her death, was not excessive or disproportionate to the
                               -36-
penalty imposed in similar cases in this state.
     Defendant has argued that his sentence - dispro-
                                            is

portionate and excessive when compared to the sentences
received by his accomplice, Robert Dennis Nank.    We have

already distinguished the situations of these two persons
above.   Nank was sentenced only for deliberate homicide and
solicitation to commit sexual intercourse without consent,

the charge of aggravating kidnapping having been dismissed

in return for his guilty plea and testimony at defendant's
trial.   Therefore, defendant's sentence of death for aggravated
kidnapping is not excessive or disproportionate when compared
to the sentences received by Robert Dennis Nank.    Leniency
in one case does not invalidate the death penalty in others.
Gregg, 428 U.S. at 199, 224-226.

     We come to the final issue in this appeal:    whether

upon review of the sentence imposed, this Court must reconsider
issues regarding the merits of the cause raised and disposed
of in the first Coleman appeal.    We conclude we do not.    Our
examination of the record to review the imposition of the

death penalty under the provisions of sections 95-2206.12 to
95-2206.15, R.C.M.   1947, now sections 46-18-307 to -310 MCA,

is not to reconsider determinations of merits already made,
but to determine whether in light of such determinations the
sentence has been equitably imposed.    Our prior determination

of an issue constitutes a final adjudication of that issue.
Belgrade State Bank v. Swainson (1978),          Mont   .      I



578 P.2d 1166, 35 St.Rep. 113 (per curiam).
     Defendant has argued the first Coleman decision as to
certain issues was conditioned upon finding the death penalty
invalid, thus a finding now that the penalty was validly
imposed necessitates a reconsideration of those issues.      An
or disproportionate to the penalty imposed in similar cases
in this state.
       Defendant has argued that his sentence - disproportionate
                                              is
and excessive when compared to the sentences received by his
accomplice, Robert Dennis Nank.   We have already distinguished
the situations of these two persons above.       Nank was sentenced
only for deliberate homicide and solicitation to commit
sexual intercourse without consent, the charge of aggravating
kidnapping having been dismissed in return for his guilty
plea and testimony at defendant's trial.     Therefore, defendant's
sentence of death for aggravated kidnapping is not excessive
or disproportionate when compared to the sentences received
by Robert Dennis Nank.    Leniency in one case does not invalidate
the death penalty in others.    Gregg, 428 U.S. at 199, 224-
226.
       We come to the final issue in this appeal:    whether
upon review of the sentence imposed, this Court must reconsider
issues regarding the merits of the cause raised and disposed
of in the first Coleman appeal.   We conclude we do not.       Our
examination of the record to review the imposition of the
death penalty under the provisions of sections 95-2206.12 to
95-2206.15, R.C.M. 1947, now sections 46-18-307 to-310 MCA,
is not to reconsider determinations of merits already made,
but to determine whether in light of such determinations the
sentence has been equitably imposed.    Our prior determination
of an issue constitutes a final adjudication of that issue.
Belgrade State Bank v. Swainson (1978),             Mont   .    I



578 P.2d 1166, 35 St.Rep. 113 (per curiam)   .
       Defendant has argued the first Coleman decision as to
certain issues was conditioned upon finding the death penalty
invalid, thus a finding now that the penalty was validly
imposed necessitates a reconsideration of those issues.        An
 examination of the first Coleman opinion reveals the holdings
 of this Court which defendant alleges were dependent upon
 finding the death penalty constitutionally invalid, were
 made clearly without such dependency.   Coleman, 579 P.2d at
 745, 749, 752.
      Judgment of the District Court is affirmed, except that
 the cause is remanded to the District Court for the purpose
 of resetting the execution date of the defendant, Dewey
 Eugene Coleman; said execution to be supervised by the
 sheriff of the county where he was tried.   Section 46-19-
 103(3) MCA.   If defendant or defendant's counsel should
 wish, he may submit a list of any other similar Montana
 cases that he may request us to review for comparative
 purposes, within the time provided for and as a part of any
 petition for rehearing in this cause.



We Concur:


                              .
         Chief Justice
                                  /




          Justices           /


Mr. Justice Daniel J. Shea will file his dissent later.
No. 14448

______           ..............................................

STATE OF MONTANA,

         Plaintiff and respondent,

     VS.

DEWEY EUGENE COLEMAN,

         Defendant and appellant.




DISSENT OF MR. JUSTICE DANIEL J. SHEA




                                        ELERK OF SUTREFAE C O U m
                                           =ATE OF MONTANA
Mr. Justice Daniel J. Shea dissenting:

     I would refuse to allow the death penalty to be
imposed.   In its first decision, this Court clearly indicated
that the death penalty was not to be considered at the resentencing.
This Court, moreover, has reached unfairly into application of
retroactive statutes to permit the death penalty to again be
imposed.   Finally, assuming arguendo that the sentencing court
could properly apply the 1977 death penalty statutes to the
1974 crimes, it did not properly apply the law, nor did this
Court properly perform its mandatory review duties under the
1977 statutes.
    After defendant had entered his pleas of not guilty to
count I (deliberate homicide), count I1 (aggravated kidnapping),
and count I11 (sexual intercourse without consent), the court,
of its own motion amended the aggravated kidnapping charge
by adding the following language:    "the alleged actions -
                                                          of
the defendant resulted - - - - -death of Peggy - Earstad."
                       in the                  Lee
Defendant objected to such amendment, but to no avail.
     The case was then tried and submitted to the jury on all
three counts, and the jury was given general verdict forms
on each count.   But the trial court, because of its own amend-
ment of count 11, also submitted a special verdict or special

interrogatory to the jury asking it if the aggravated kidnapping
"resulted in the death of Peggy Lee Harstad."   The jury, in
addition to returning guilty verdicts on all three counts, answered
the special interrogatory in the affirmative that the aggravated
kidnapping "resulted in the death of Peggy Lee Harstad."
Defendant also had objected to the submission of the special
interrogatory to the jury.
     In the first Coleman appeal, this Court ruled against the
defendant on both issues.    As to the trial court's amendment
of count 11, after defendant's plea, and over defendant's
objection, this Court held that the amendment was one of
form rather than substance because defendant was at all times
aware that the State was seeking the death penalty.      (Coleman,
579 P.2d at 732)     However, this Court then stated the crux of
its holding in relation to the amended information:
     "In any event, no legal prejudice resulted from
     the amendment of count I1 in the light of our
     holding that Montana's death penalty statute
     as it existed in 1975 is unconstitutional."
     579 P.2d at 746.
     This language clearly indicates that this Court did not
believe that upon the case being remanded to the District Court
for resentencing that the death penalty would be reimposed by
applying the 1977 statutes to the 1974 crimes.

     Moreover, the language of this Court's opinion in the
first Coleman appeal concerning the submission of the special
interrogatory to the jury leads to the same conclusion.     This
Court ruled that the submission of the special interrogatory
to the jury did not undermine the general verdicts also submitted
to the jury.     579 P.2d at 751.   But again, the crux of this
Court's holding on this issue, is stated as follows:

     "In any event, our holding on Montana's death
     penalty statutes renders this specification
     of error nonprejudicial." 759 P.2d at 751.
     These holdings on the questions of the amended information
and submission of the special interrogatory to the jury, are
a clear indication that this Court did not believe that defendant
would be subject to the death penalty upon his resentencing.
These holdings, moreover, are a clear directive to the District
Court that capital punishment was to be eliminated from its
consideration.    But, of course, it was the desire of the District
Court to inflict the death penalty if there was any way possible,
and therefore it chose to interpret this decision otherwise.
     In its findings, conclusions, judgment, and order of
death, dated July 14, 1978, the District Court summarized
what it considered to be the essence of this Court's holding
in overturning the first death sentence.   (I note parenthetically,
that its summary was a foregone   conclusion, for on June 2,
1978, the same day as the remittitur of this Court arrived at
the District Court, it sent out an order to counsel for both
sides that sentencing could be carried out pursuant to the
1977 death penalty statutes.)   In any event its legal position
is revealing:
    ". . . The Court limited its decision on
    overturning the death penalty to the absence
    of procedural requirements allowing the trial
    court to consider any mitigating circumstances
    in its imposition of a penalty under the un-
    constitutional death penalty statute.. . .


     ". . . The statute as amended was declared
    unconstitutional in this case, - - Supreme
                                      but the
    Court in remandin for resentencing did not
    s p e c i f = a d r = f - - --
                               the trial c o E e l d
    or could - impose -- penalty. Coleman
    -          not         the death
    argues that since the mandatory statute was
    declared unconstitutional, Coleman cannot be
    sentenced to death under laws enacted after
    his conviction. (Emphasis added.)
    "The Supreme Court at page 11 of its opinion
    indicates that if the death penalty had been
    imposed under proper procedural safeguards, the
    sentence would have been upheld. The Court
    states:
    "'To have a constitutionally valid death penalty,
    the United States Supreme Court has established
    certain necessary procedures. (Citations.) None
    of these required procedures are present in Montana's
    death penalty statute as it existed in 1975, nor
    were they provided otherwise - - - case. (Emphasis
                                 in this
    added.) Thus defendant's death sentence cannot
    stand.' (Emphasis is the trial court's.)
    "The emphasized language strongly suggests - -if
                                                that
    the sentencing court had observed procedural
    reauirements declared bv recent U.S. Supreme Court
    degisions, the death pzalty would -- upheld
                                        haveLbeen
    notwithstanding -- Montana's mandatory - was
                    that                      law -
    unconstitutional.    (Emphasis added.)
     "The later enactment of sections 95-2206.6, et seq.,
     spelling out the procedure, should not operate to
     take away the court's power to impose the death
     penalty under proper procedural safeguards.
     The death penalty is an operative fact under the
     B"lntana Constitution and section 95-5-303, R.C.M.
     1947, and are not to be ignored because a procedurally
     effective statute is abrogated and other statutes
     are substituted therefor. As argued by the State
     from the Dobbert case, the circumstance that the
     defendant is atforded greater procedural protection
     by the trial court's utilization of sections 95-
     2206.6, et seq., does not fall within the prohibition
     of ex post facto laws.
     "In summary, the trial court in now pronouncing
     sentence is in a position to utilize the interim
     developments in sentencing procedure as reflected
     in recent U.S. Supreme Court decisions and the
     Montana statutes enacted in response thereto."
     The court then listed its findings and conclusions and
entered its order sentencing defendant to death for the second
time .
     The sentencing court obviously milked the majority decision
as much as it could in order to arrive at a decision that would
allow a reconsideration of the death penalty.   True, this Court
did not explicitly direct the District Court to eliminate the
death penalty from its consideration.   But a fair reading of
our decision on the questions of the amended information and
the special jury interrogatory leads to that conclusion.
     The sentencing court concludes its original death penalty

would have been approved if only it had the foresight to allow
the defendant to present mitigating circumstances at a presentence
hearing.   Not only is this a misreading of the opinion by the
~istrictCourt, but it is clear that such procedure would not
have been approved.   For the statutes themselves must provide
for the presentencing hearing permitting evidence of aggravation
and mitigation.   As I covered the statutory requirements in my
dissent in State v. ~cKenzie (1978),       Mont .    , 587 P.2d
1205, 1266-1277, 35 St.Rep.   759, it would serve no useful
purpose to again set forth these requirements as mandated by
the United States Supreme Court.   It is sufficient to say that
the District Court is sadly mistaken.
     It is equally clear that the trial court was interested
only in applying Dobbert to the facts of this case and that it
did not consider either the   ex   post facto provision in the
Montana Constitution, or the statutory directive of section
12-201, R.C.M. 1947, which prohibits any retroactive application
of a statute unless it is specifically provided for in the
statute.     I must admit, however, that I am even more amazed
by the majority's application of these laws to the facts of
this case.    It is a clear demonstration of what can happen when
the law is not allowed to get in the way of the result.
     It is unfortunate indeed that the majority has chosen
to join lock step with the United States Supreme Court, and not

only in interpreting the United States Constitution.        The only
reference the majority makes to the ex post facto provision of
our own Constitution is where it sets forth the issue raised by
the defendant:
     "The next issue with which we are confronted
     is whether - -
                ex post facto provisions in the federal
     and state constitutions or the statutorily codified
     rule of construction against retroactivity (section
     12-201, R.C.M. 1947, now section 1-2-109 IICA) prevent
     application of the sentencing statutes enacted in
                                    .
     1977 to this defendant. . " (No. 14448, State v.
     Coleman, decided 6/20/1979.)
The statement of the issue in this way constitutes a fore-
warning that all issues are going to be decided by one standard
--the standard set forth by the United States Supreme Court
in Dobbert v. Florida (1977), 422 U.S. 282, 92 S.Ct. 2290,
53 L.Ed.2d 344.    Why this Court consistently refuses to give
more substantive meaning and protection to our own constitutional
provisions as opposed to that given by the United States Con-
stitution, I cannot understand.         The United States Supreme
Court is not the sole repository of all wisdom.        Nor can it
be the final authority on the interpretation of the Montana
Constitution.
                                   -43-
     Though we must accord all people every right to which
they are entitled under the United States Constitution,
there is nothing which prevents us from according them even

more fundamental protection under our own Constitution.     Article
11, Section 21, 1972 Montana Constitution provides:
     "No ex post facto law nor any law impairing
     the =ligations ofcontracts, or making any
     irrevocable grant of special privileges,
     franchises, or immunities, --    -
                                shall be passed
     by - legislature." (Emphasis added.)
     -  the
     Under this provision, I would hold that no law passed
by the legislature after the commission of the crime, whether

denominated substantive or merely procedural or ameliorative
can be applied to permit a sentence of death, if the statutes
applicable at the time of the commission of the crimes, were
constitutionally deficient, and hence would not permit the
imposition of the death penalty.    The frailties   of mankind
(and judges must be included in this reference) are such that
a man's life should not be subject to the hair-splitting mischief
inherent in interpreting a retroactive application of the law.
     In the first Coleman decision, we declared the provision
calling for mandatory execution in the event of a conviction
of the crime of aggravated kidnapping leading to the victim's
death, to be unconstitutional.     579 P.2d at 741-742.   Under the
statutes then existing, defendant could not constitutionally be
sentenced to death.   For this reason, I would declare that the
1977 death penalty statutes (however they be denominated--
substantive, procedural, ameliorative, or whatever) could not
constitutionally be applied to defendant.    Accordingly, the
trial court had no authority to again sentence defendant to death.
     Nor   do I believe that there is any excuse of the majority's
failure to give the defendant the benefit of a doubt in inter-
preting section 12-201, R.C.M. 1947 (now section 1-2-109 MCA).
That section falls within the chapter containing the
rules of construction which are to apply to - statutes
                                            all
in the State of Montana.    Section 12-201 provides:
     "No law contained in any of the codes or
     o m e r t a t u t e s in ~ o n E is retroactive
                                      a
     unless expressly - declared." (Emphasis
                             so
     added. )
The only reasonable interpretation of this statute is that
the 1977 death penalty statutes can apply to the defendant
only if the legislature expressly declared that these statutes
were to have retroactive effect.     Not only is there a total
lack of express declaration that the 1977 death penalty statutes
are to be retroactively applied, but there is no room even to

imply that the legislature intended them to have a retroactive
effect.   (See sections 95-2206.6 through 95-2206.15, R.C.M.
1947, now sections 46-18-301 through 46-18-310 MCA).      The
statutes contain no directive for retroactive application.
     This statute prohibiting retroactive application of
legislative acts does not distinguish between retroactive
application of a procedural statute or retroactive application
of a statute that is considered substantive.       It prohibits
retroactive application of - statute--period--unless it is
                           any
"expressly declared" to have retroactive application.      This
hair-splitting business of distinguishing between a substantive
law and a procedural law must stop when a man's life literally
hangs in the balance.
     This Court has also ignored fundamental case law previously
adopted by this Court in interpreting section 12-201.      Because
it is a rule of construction which applies to all statutes
enacted by the legislature, it will not be given retroactive
effect unless expressly so declared.      State ex rel. Whitlock
v. State Board of Equalization (1935), 100 Mont. 72, 84, 45
                                 -45-
P.2d 684.   This holding does nothing more than to give full

meaning to the express language of section 12-201.   This
Court also held that statutes are intended to operate
prospectively only, in the absence of a contrary intention
clearly expressed in the statutes, and that every reasonable
doubt is resolved against a retroactive application of a
statute.    State ex rel. Mills v. Dixon (1923), 68 Mont. 526,
528, 219 P. 637.
     The death penalty statutes enacted in 1977 were not
expressly declared by the legislature to be retroactive in
application.   The statutes are silent.   It is presumed therefore,
that they were intended to operate only prospectively.     Other
than an emasculation of the law there is no way that this Court
should have declared them, in essence by judicial fiat, to
operate retroactively.   Section 12-201 prohibits such inter-
pretation; Whitlock, supra, solidifies this statute; and Dixon,
supra, clearly establishes that every reasonable doubt should
be resolved against retroactive application of a statute.     If
there are not legitimate policy reasons in a death penalty
case to resolve a reasonable doubt against retroactive
application in order to save a man's life, I cannot conceive
of another instance where such policy reasons would exist.
By suspending the operation and effect of section 12-201, this
Court has inflicted a grave injustice upon the defendant--one
that can never be rectified.
     There is, moreover, another statute which this Court,
as well as the trial court, totally ignored in reaching its
decision.   Section 43-507, R.C.M. 1947 (now section 1-2-201(1)
MCA) provides :
     "Every statute, unless a different time is
     prescribed therein, takes effect on the first
     day of July of the year of its passage and
     approval."
The death penalty statutes (sections 95-2206.6 through
95-2206.15) provide no time as an effective date.      Accordingly,

they were effective as of July 1, 1977.     Though the majority
ignored this statute, it does appear that somehow they would

have avoided its application to the defendant's case.      But,
at least they owed the defendant an explanation.

     Conceding arguendo that it was proper to apply the 1977
death penalty statutes to the 1974 crimes, it is still abundantly
clear that the trial court failed to follow the statutes, and

that this Court failed to fulfill its statutory functions under
the mandatory review provisions of the statutes.      For these

reasons also, the death penalty should not be allowed to stand.
     To place this second sentencing in proper perspective
with the first sentencing, I digress to the circumstances
surrounding the first trial insofar as they are pertinent
to the imposition of the first death sentence.

     The aggravated kidnapping statutes called for the mandatory
infliction of the death penalty if the victim died as a result

of the kidnapping.   (Sections 94-5-303, and 94-5-304, R. C .!I.

1947.)   Originally the State did not allege in Count I1 of
the information (the aggravated kidnapping charge) that the

victim died as a result of the kidnapping.     But after the
defendant had entered his plea, and over defendant's objection,

the trial court, on its own motion, amended count I1 to allege
also that the victim died as a result of the kidnapping.       As

so often is the case, this Court does not know why the trial
court did this, but it appears that it believed that the lack
of this allegation would be fatal to the imposition of     3   death
penalty if defendant was convicted of aggravated kidnapping.
The trial court followed up this allegation by submitting a
special interrogatory to the jury, asking it to determine whether
                             -47-
or not the victim died as a result of the kidnapping.    In
addition to returning a general verdict of guilty to the
charge of aggravated kidnapping, the jury answered the special
interrogatory in the affirmative--that is, that the victim
did die as a result of the kidnapping.    The stage was then
set for the imposition of the mandatory death penalty.
     Based on the amended information and the jury's answer
to the special interrogatory, the trial court, without ordering
a presentence investigation, and without holding a presentence
hearing to permit presentation of evidence as to aggravation
and mitigation, sentenced the defendant to death.   I add here
that the then existing statutes did not require a presentence

investigation or a presentence hearing.    Indeed, it would have
been useless to do so, because the statutes required the im-
position of the death penalty, and pursuant to the amended
information and the jury's answer to the special interrogatory,
all that remained was for the court to impose the required death
penalty.   It was this imposition of the mandatory death sentence
that this Court declared unconstitutional in the first Coleman
appeal.    579 P.2d at 741-742.
     It is fair to say that the extraordinary activities
of the trial court in amending the information and in submitting
the special interrogatory to the jury, suggest at a minimum
that he had more than an ordinary interest in setting the
stage for the eventual imposition of the death penalty in the
event of a conviction on the count of aggravated kidnapping.
This then, was the state of mind of the sentencing judge as
he again prepared to sentence the defendant after the first
Coleman appeal.
     It is revealing to set forth the background of how the
sentencing judge set up the second imposition of the death
penalty for the defendant.    This Court decided the first
                                  -48-
Coleman case on April 26, 1978, and the petition for rehearing
was not turned down until May 30, 1978.      But in the meantime,

the sentencing court was active.      On May 2, 1978, he entered
an order (with copies sent to all counsel of record) that

defendant was to be immediately returned to the Custer County

jail and held there pending presentencing investigation and
                            judge
sentencing. The sentencing/simply did not bother to wait until
the case had been returned to him after the denial of defendant's
petition for rehearing.

     On June 2, 1978, the presentence investigation report

was submitted to the court with the notation in the report

that the sentencing judge "is still awaiting some type of legal
papers from the Supreme Court and that sentencing will not be
set until such papers arrive."

     Apparently the papers arrived that same day, for on June
2, 1978, the sentencing court sent out an order to all counsel
of record that the sentencing hearing would take place on June

14, 1978 in the Custer County Courthouse, and that the hearing
                    -             --
would be conducted "in accordance with Sec. 95-2066.6 through
95-2206.11 R.C.M. - -as amended" (the 1977 death penalty
                  1947,
statutes).   It appears from this that the prosecution had kept

the sentencing judge well abreast of the developing law from
the United States Supreme Court, namely, Dobbert v. Florida

(1977), 432 U.S. 282, 92 S.Ct. 2290, 53 L.Ed.2d 344.      I have
previously discussed in this dissent the point that the trial
court ignored the   ex   post facto provision in the Montana
Constitution, and section 12-201 of our statutes.
    With the decision of the sentencing court from the

inception that it would apply the 1977 death penalty statutes,
we are now in a position to examine those statutes, sections

95-2206.6 through 95-2206.15, R.C.M. 1947, now sections 46-18-
301 through 46-18-310 MCA) and sections 94-5-102 and 94-5-303
(now sections 45-5-102 and 45-5-303 bICA).
     Under the 1977 statutes, sections 95-2206.6, provides
that if there is a conviction in which the death penalty may
potentially be imposed, the sentencing judge must conduct a
mandatory presentence hearing to determine if any statutory
aggravating circumstances exist under section 95-2206.8 and
if any statutory mitigating circumstances exist under section
95-2206.9.   The scope of the hearing is set forth in section


    "Sentencing hearing--evidence - -may be received.
                                   that -
    In the sentencing hearing, evidence may be presented
    as to any matter the court considers relevant to
    the sentence, including but not limited to the
    nature and circumstances of the crime, the defendant's
    character, background, history, mental and physical
    condition, and any other facts in aggravation or
    mitigation of the penalty. Any evidence the court
    considers to have probative force may be received
    regardless of its admissibility under the rules
    governing admission of evidence at criminal trials.
    Evidence admitted at the trial relating to such
    aggravating or mitigating circumstances shall be
    considered without reintroducing it at the sentencing
    proceeding. The state and the defendant or his
    counsel shall be permitted to present argument for
    or against sentence of death."
I note in this respect, and I will develop this point later,

that an evidentiary hearing did not in fact take place.   The
State presented no evidence in aggravation, apparently content
that the sentencing court would later find that the victim died
as a result of the kidnapping.   But neither did the defendant
present any evidence.   He did not take the witness stand, nor
did anyone else in his behalf, nor was any documentary evidence
presented in his behalf.   Other than the trial transcript, the
only sentencing background the court had was contained in the
presentence investigation report.
     The statutory aggravating circumstances are set forth
in section 95-2206.8:
     "Aggravating circumstances. Aggravating cir-
     cumstances are any of the following:
     "(1) The offense was deliberate homicide and
     was committed by a person serving a sentence of
     imprisonment in the state prison.

    "(2) The offense was deliberate homicide and
    was committed by a defendant who had been previously
    convicted of another deliberate homicide.
     "(3) The offense was deliberate homicide and was
     committed by means of torture.

     "(4) The offense was deliberate homicide and was
     committed by a person lying in wait or ambush.
     "(5) The offense was deliberate homicide and was
     committed as a part of a scheme or operation which,
     if completed, would result in the death of more
     than one person.
     "(6) The offense was deliberate as defined in
     subsection (1)(a) of 94-5-102 and the victim was
     a peace officer killed while performing his duty.
     " (7) The offense was aggravated kidnapping which
     resulted - - death - - victim."
              in the       of the           (Emphasis
     added. )
For purposes of this case only, subsection (7) (which is
emphasized) is important.    In specific written findings of
fact as to subsections (1) through (6) the sentencing court
properly found that the aggravating circumstance did not apply
to the facts of this case.
     The statutory mitigating circumstances are set forth in

section 95-2206.9:
     "Mitigating circumstances. Mitigating circum-
     stances are any of the following:
    "(1) The defendant has no significant history
    ofrior  criminal activity.
    "(2) The offense was committed while the defendant
    was under the influence of extreme mental or emotional
    disturbance.
     " ( 3 ) The defendant acted under extreme duress
     or under the substantial domination of another person.
     "(4) The capacity of the defendant to appreciate
     the criminality of his conduct or to conform his
     conduct to the requirements of law was substantially
     impaired.
     "(5) The victim was a participant in the defendant's
     conduct or consented to the act.
     "(6) The defendant was an accomplice in an
     offense committed by another person, and his
     participation was relatively minor.

     " (7) The defendant, at the time of the commission
     of the crime, was less than 18 years of age.
           -
     "(8) Any other fact exists in mitigation - -
                                              of the
     penalty." (Emphasis added.)-
For purposes of this case only subsections (1) and (8) (both
emphasized) are important.    The trial court properly found an
absence of mitigating circumstances listed in subsections (2)
through (7) and entered specific findings as to each negating

the existence of the mitigating circumstance.   But as I will

later develop, the sentencing court totally misapplied the
law in relation to subsection (I), and failed to negate the
existence of "any other fact exists in mitigation of the penalty"

as provided for in subsection (8).
     Explicit findings as to the existence or nonexistence
of aggravating circumstances or mitigating circumstances, are

mandated by section 95-2206.11:
    "Specific written _ _ _ - of fact. In each
              _ _ _ findings -
    case in which the court imposes the death sentence,
    the determination of the court shall be supported
        -
    bv specific written findings of-fact as to the
      A


    existence or nonexistence of each of the circum-
    stances setforth in 95-2206.8 and 95-2206.9. The
    written findings of fact shall be substantiated
    - - records of the trial andthe sentencing
    by the
    proceeding." (Emphasis added.)
     The statute   supposedly enacted to guide the sentencing
court in its decision as to whether or not to impose the death

penalty, section 95-2206.10   provides:

                   -.
    "Consideration of aggravating and mitigating
    factors - deEermlning sentence. In determining
            in
    whether to impose a sentence of death or imprison-
    ment, the court shall take into account the aggravating
    and mitigating circumstances enumerated in 95-2206.8
    and 95-2206.9 and shall impose a sentence of death
    - - finds - - -
    if it       one or more of the aggravatingcircum-
    stances and finds that there are no mitigating
    circumst~e~ficienientlyubstanti--      al
                                           to call
    for leniency. If the court does not impose a
    sentence of death and one of the aggravating circum-
    stances listed in 95-2206.8 exists, the court may
    impose a sentence of imprisonment for life or for
    any term authoried by the statute defining the
    offense." (Emphasis added.)
     Under this statute, a death penalty cannot be imposed

unless there is at least one aggravating factor.     But if
there is at least one such aggravating factor, it does not

require the sentencing court to give any weight at all to
mitigating factors.     Rather, the sentencing court, in its
infinite wisdom, and untrammeled discretion, is permitted to

sentence to death if he finds at least one aggravating factor
and a thousand mitigating factors.    All he must state is that

the mitigating factors are "not sufficiently substantial to
call for leniency."    Under this statute, a defendant is totally
at the mercy of the sentencing court as to what weight, if any,
it chooses to give to mitigating factors.     The only factors
which may save a defendant from the death penalty are the
identity of the sentencing judge and his personal attitude about
whether or not he should impose the death penalty.    This is worse

than a game of Russion roulette for the defendant does not even

get a chance to turn the cylinder to see which judge he draws.
     In any event, the above is the statutory scheme under which
the judge entered his findings, conclusions, order and judgment,
on July 10, 1978.     But before discussing his findings, conclusions,

order and judgment, the facts surrounding the commission of the
crimes are important for several reasons, but primarily for the

reason that they show the deep involvement of defendant's
accomplice, Robert Dennis Nank, in every facet of the crimes,
and yet Nank has avoided the death penalty.    The facts I state
here are taken from the presentence report filed on June 2,
1978, which were in turn taken from the State's brief on appeal,
filed November 17, 1977, with this Court.     I quote verbatim
from the presentence investigation report:

     "On July 4, 1974 he and Dewey Coleman were sitting
     in a park in Roundup, Montana. They were destitute
                     --
     financially and made a decision to burglarize a
     home in Roundup where - - - sold several rifles;
     --                    they
- - - Roundup airport buried - -
and, at the                  the same.
[As I will later demonstrate, the trial court
improperly relied on this in sentencing Coleman
to death.] They decided that, because they
were destitute financially and low on gas for
the motorcycle on which they were traveling,
it would be necessary for them to burglarize
someone else and to kill them to destroy the
evidence. As they proceeded east from Roundup
to Forsyth, Nank's motorcycle ran out of gas
approximately five miles west of Vananda, Montana.
They attempted hitchhiking, but were refused by
an elderly couple who stopped to determine what
was the matter. This occurred about 10:OO o'clock
P.M. Shortly thereafter, Miss Harstad offered
the pair a ride and continued easterly down U.S.
12. At a location about nine miles west of
Forsyth where Nank, sitting next to Miss Harstad,
turned off the key for the ignition and steered the
car to a stop. Nank held the girl while Dewey
Coleman drove the vehicle back to their motorcycle
which was out of gas. They picked up their motor-
cycle helmets and a rope used to tie luggage to
the motorcycle and again proceeded east down U.S.
12. North of Vananda, about a half mile from the
highway, the two attempted sexual intercourse with
Miss Harstad. Despite her pleas Coleman had inter-
course with her. She was in menstruation at the
time. Nank also attempted intercourse, but failed
because of a lack of penal erection. Nank did
assist in holding Miss Harstad while Coleman had
intercourse and also gratified his desire to stroke
Miss Harstad's feet. Following sexual intercourse
they tied Miss Harstad with a rope and traveled in
her vehicle with her through Forsyth to Rosebud,
Montana and returned west from Rosebud to Forsyth.
West of Forsyth they crossed a bridge over the
Yellowstone River and proceeded again east down a
dead end road on the north side of the river. Nank
carried the girl, now clothed, from the car towards
an abandoned Milwaukee Railroad Depot and across
the railroad tracks. While Nank held the girl over
his shoulder, Coleman came from behind swinging
his silver motorcycle helmet by the chin strap and
crashed it against Miss Harstad's skull. Nank dropped
her to the ground and Coleman proceeded to hit Miss
Harstad several more times with the helmet. Since
she was not dead, the two attempted to strangle her
with a rope. Then Coleman alone attempted strangulation.
Thinking she was dead, the two carried her down the
embankment in a seclusion of trees and heavy brush
and threw her into a puddle of water which was caused
by the overflowing Yellowsthne River. However, the
young lady had not expired and she stood up in the
water. At this point, both Nank and Coleman went
into the water. Coleman - - lower - - -
                         held her       body and Nank
held her head under water until - was drowned."
---                             she -
 (Emphasis added.)
     So far as the record is concerned, it is from these

facts only that the sentencing court again imposed the death
sentence.   The findings and conclusions are devoid of any
other factors which entered into the decision of the sentencing
court .
     What did happen at the June 14, 1978 sentencing hearing?
The State presented no evidence in aggravation; and the
defendant did not testify himself or present other testimony,
or present documentary evidence.      The prosecution tried un-
successfully to call the defendant to the witness stand.
Before the conclusion of the proceedings on that day, however,
the presentence investigation report was formally filed by the
sentencing court and made an official part of the record.     Each
party was given an opportunity to examine the parole and probation
officer who prepared the report, but each declined.     The
prosecuting attorney formally declared that,"I have read the
report and I don't have any objection to any of the material
in the report."
     During this hearing, the court commented on one portion
of the presentence investigation report in relation to defendant's
criminal background, and I will later develop the importance
of this comment in relation to the eventual findings of the
sentencing court:
     ". . . The significant part of it [the presentence
     investigation report] relative to mitigating
     circumstances, is that the defendant has never
     been convicted - -
                    of any felony prior - -
                                        to this
     charge." (Emphasis added.)
     Being that neither party presented any formal evidence,
it was also agreed that the parties would present to the court
through their briefs what they considered to be aggravating
and mitigating circumstances, respectively.      It appeared that
the prosecutor would also present proposed findings and conclusions,
                               -55-
but that the defendant did not indicate whether or not he
would present proposed findings and conclusions.   There is

no question, however, that he knew he was given the right to
do so.   The June 14, 1978 presentencing hearing was then adjourned.
The next time the parties would again meet in court was July
10, 1978 when the sentencing judge came to court with his sentence
of death in hand.
     This Court does not have the briefs that were exchanged
between the parties and the court from the time of the June
14, 1978 presentence hearing and the date set for the sentencing.
Nor do we have the proposed findings and conclusions submitted
to the court by the prosecutor.
     On July 10, 1978, the judge came to court with findings,
conclusions, judgment, and order of execution, already prepared.
As a formality, however, the sentencing court permitted defense
counsel (and the prosecutor) to make final arguments against and
for the death penalty.   Insofar as the defendant is concerned,
this situation can be likened to permitting final arguments to
a jury only after the jury has returned with its verdict.     Defense
counsel did ask the sentencing court to consider matters contained

in the presentence investigation report, including the fact
that defendant did not have a previous criminal record before the
particular crimes here, and that the crimes committed were
totally inconsistent with his previous behavior as established
by residents in Great Falls, Montana, who had known defendant
for some time.   He also asked the court for leniency because
Nank, who was an admitted accomplice of the defendant, had
committed exactly the same crimes as defendant, but through
plea bargaining and turning state's evidence, was not given
the death penalty.   He also argued that defendant was not being
treated equally by either the prosecutor or the court because
he was black, and argued that the judge's orchestration of
certain matters during the first trial showed his prejudice.
Moreover, defendant again maintained his innocence of the
crimes.
     It was clear that the clean record of the defendant before
the crimes involved here, bothered the sentencing court.    Not
that the court wanted to show leniency because of the clean
record, but that the court did not know how to handle the matter.
Eventually, the court rationalized defendant's situation to the
fact that he had just never been convicted of any previous
felony:
     ". . . - - mitigating
            The one           circumstance is
    -- defendant ------ thistime
    that the           has not prior to
    been convicted - - felony, - - - - - -
                   of a         but in view of the
    enormity of the crime committed, and the Court's
    teeling --- c i r c u m s t a n c ~- o t
            thatthis one                 - o~n
    overcome the aggravated circumstances, I have
    made findings to this effect, written findings
    as required by law. Also I have made conclusions
    and judgment which have been furnished to the
    defendant and the state at this time. and I will
    only at this time read the Court's conclusions
    and judgment .     .
                     ." (Emphasis added.)
    After the sentencing court made this statement, it stated
for the record that it would not read its written findings into
the record, but would simply read its conclusions and judgment
into the record--whereupon defendant was sentenced to death.
Before appealing to this Court, defendant petitioned the sentencing
court for a reconsideration of the sentence, but was turned down.
Automatic appeal to this Court followed, pursuant to the provisions
of sections 95-2206.12 through 95-2206.15 (now sections 46-18-
307 through 46-18-310 MCA)   .
     Before discussing some of the crucial issues relating to
the sentencing itself, the trial court's memorandum in justification
of turning down defendant's petition for reconsideration, is
revealing.     In this petition, defendant contended, among other
things that:    defendant had a right to present argument to the
s e n t e n c i n g c o u r t b e f o r e t h e s e n t e n c e o f d e a t h , and t h a t

t h i s r i g h t was d e n i e d b e c a u s e t h e c o u r t a l r e a d y had i t s

o r d e r of e x e c u t i o n p r e p a r e d when t h e c o u r t f o r m a l i s t i c a l l y

allowed d e f e n d a n t ' s c o u n s e l t o make h i s arguments; t h e
s e n t e n c i n g c o u r t had f a i l e d t o t a k e t h e p r e s e n t e n c e i n v e s t i g a t i o n

r e p o r t i n t o a c c o u n t ; t h e s e n t e n c i n g c o u r t had i n e s s e n c e

found d e f e n d a n t g u i l t y of p r e v i o u s c r i m i n a l conduct by r e l y i n g

on t h e u n c o r r o b o r a t e d t e s t i m o n y of Nank t h a t he and d e f e n d a n t

had b u r g l a r i z e d a home i n Roundup, Montana, and s t o l e some

r i f l e s , on t h e same day a s t h e c r i m e s i n v o l v e d h e r e ; and t h a t

t h e sentencing court t o t a l l y f a i l e d t o consider t h e favorable

t r e a t m e n t g i v e n t o Nank who had a d m i t t e d t h e same c r i m e s f o r

which d e f e n d a n t s t o o d c o n v i c t e d .

        I n i t s J u l y 31, 1978 o r d e r denying t h e p e t i t i o n f o r r e -

c o n s i d e r a t i o n of t h e s e n t e n c e , t h e t r i a l c o u r t f a i l e d t o

mention any of t h e s e arguments, and seemed t o ground i t s o r d e r

on i t s c o n c l u s i o n t h a t d e f e n d a n t was merely r e h a s h i n g o l d

arguments a l r e a d y p r e s e n t e d .        But t h e o r d e r i s r e v e a l i n g f o r

what i t s a y s a b o u t m i t i g a t i n g c i r c u m s t a n c e s :

        "A p r e - s e n t e n c e h e a r i n g was conducted on June
        1 4 , 1978, a t which t i m e d e f e n d a n t and h i s
        c o u n s e l were g i v e n an o p p o r t u n i t y t o p r e s e n t
        any m a t t e r i n m i t i g a t i o n , b u t d e f e n d a n t d e c l i n e d
        - ta -
        t o -k e t h e w i t n e s s s t a n d and f a i l e d - o t h e r w i s e
                                                                     to
        p r e s e n t any e v i d e n c e - m i t i g a t i o n .
                                             in



        "The c o u r t t h e n p r e p a r e d i t s f i n d i n q s and c o n c l u s i o n s
        based -- a g g r a v a t i n g and m i t i g a t i n g c i r -
                 upon t h e
        cumstances known t o t h e c o u r t . A day f o r s e n t e n c i n g
        was t h e n s e t ,      wwhichtimeounsel f o r defendant
        gave a d i s c o u r s e on m a t t e r s p r e v i o u s l y p r e s e n t e d
        by b r i e f t o t h e t r i a l c o u r t on t h e motion t o q u a s h ,
        and t o t h e Supreme C o u r t on t h e a p p e a l .


        "Coleman a t t h e s e n t e n c i n g h e a r i n g was g i v e n t h e
        o p p o r t u n i t y t o p r e s e n t any m i t i g a t i n g c i r c u m s t a n c e s
        h e might choose, b u t d e c l i n e d t o do s o , which
        d i s t i n g u i s h e s L o c k e t t from t h e i n s t a n t c a s e .      Other
     than the mention of the Lockett case, the final
     oral argument of defendant's counsel - -    and the
     p e t i t i o - e h a r i n g raise no new matter not
                   nrr
     previously considered b - theucat - -
                                  - y          - the time
     of - preparation - - trial's court's findings
     -   the                  of the
     and conclusions.
     "Now, Therefore, It Is Ordered that the petition
     for rehearing be denied." (Emphasis added.)
     The undeniable fact is that other than the circumstances
of the crimes as divulged by the trial itself, the only informa-
tion of record that the sentencing court had before it sentenced
defendant to death, was the presentence investigation report.
But, the sentencing court totally ignored this report, with
the exception of the defendant's criminal background.
     The presentence investigation report contained the following
subject headings:   (a) Criminal History; (b) Official Version
of Crime and Defendant's Version of Crime; (c) Physical
Description and Condition (of the defendant--this section
includes references to several psychological tests and profiles
of the defendant; (d) Family and Social Background; (e)
Educational and Vocational History; (f) Marital History;
(g) Military History; (h) Summary and Conclusion.    A sentence
of death is immediately suspect. when the findings in support
of that sentence are entirely devoid of any considerations
other than the circumstances of the commission of the crime
itself.   Not once did the sentencing court refer to the
defendant's history or background.   It is almost like the
sentencing court entered an order for the extermination of
an inanimate object, certainly not a living, breathing human
being.
     Since the sentencing court and the majority opinion
provide no facts as to defendant's background, I believe it
is imperative to do so.   I take this background from the only
source there is of record, the presentence investigation report.
     Dewey Coleman is a black man, born October 26, 1946,
in Missouri, the son of a boilermaker and a housewife.
There were nine brothers and sisters in his family.     At the
age of fourteen, he ran away from home, but some time later
he returned to Missouri.    He graduated from high school in
1964.   His father died in 1964 and his mother died in 1972.
As of January 20, 1975, only four brothers and sisters were
known by him to be alive.   He apparently has had no contact

with his family since that time.
     From 1965 to 1972, he was in the United States Navy.      He
was discharged in 1969 but was recalled to active duty very
shortly thereafter.   Be attained the rank of E-5 and was
primarily involved in doing clerical work.    During this time
he also received approximately two years of education at a
junior college and through correspondence courses.     He received

his discharge from the Navy in 1973 and apparently is on
disabled classification as a result of a service-connected
activity.
     In 1973, he came to Great Falls, Montana, in part because
he wanted to remove himself from the drug scene.     He had used
drugs on and off since the young age of 12 or 13 when he and
his friends smoked marijuana that was growing wild near his
home in Missouri.   He later became involved with using cocaine,
amphetamines and heroine.
     Upon his arrival in Great Falls, Montana, he became
actively involved with Opportunity Incorporated, a community
action low income coalition of individuals who worked for welfare
rights and the betterment of low income people.    While associated
with Opportunity Incorporated he became founder and president
of L.I.N.C.   (Low Income Neighbors Coalition).   He helped
organize a Christmas program for low income youngsters in the
                               -60-
Great Falls area, and provided the time and initiative
to get several projects developed before he left in May 1974
for the Veteran's Hospital in Sheridan, Wyoming.
     Insofar as can be determined, defendant had never been
convicted of even a misdemeanor charge.   Indeed, he had not
even been arrested for any offense.   The parole and probation
officer spoke with several individuals in Great Falls concerning
Coleman, and he stated in his report:
     "This writer spoke with several individuals
     associated with the subject and familiar with
     his work in the Great Falls area and everyone
     that I talked with was complimentary of this
     individual's work and viewed with some disbelief
     the crime this individual has committed."
     After his arrest, several persons performed psychological
testing of defendant, and their diagnoses ranged from such
determinations as paranoid schizophrenia; schizodal personality;
organic brain syndrome; depressive reaction; a patient with

passive-aggressive personality; aggressive personality disorders;
and depressive reaction with anxiety (Depressive Neurosis).
     Although the above is not a complete profile of the
defendant, I have provided some background so that it can be
shown that the findings of the sentencing court are barren of
any considerations of defendant's personal circumstances.     The
findings which were made are meaningless to a reviewing court.
We cannot guess at how the sentencing court evaluated defendant's
individual circumstances.   The United States Constitution will
not permit us to guess.
     After Furman v. Georgia (1972), 96 S.Ct. 2726, 408 U.S.
184, 33 L.Ed.2d 346 was decided, a great many states responded
to this decision by enacting mandatory death penalty statutes.
                statutes
%e.1973 ~ontana/allowed a consideration of mitigating circum-
                      statutes
stances, but the 1974/elirninated a consideration of mitigating
circumstances, thereby making the death penalty mandatory in
certain situations specified in the statutes.       However, the
United States Supreme later decided in a series of cases that
mandatory death penalties are unconstitutional.       Woodson v.
North Carolina (1976), 428 U.S. 280, 96 S.Ct. 2978, 49 L.E~.

2d 944; Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861,
53 L.Ed.2d 982; and Roberts v. Louisiana (1977), 431 U.S.
633, 97 S.Ct. 1993, 52 L.Ed.2d 637.       It was on the basis of

these cases that this Court in the first Coleman case declared
Montana's mandatory death penalty statute to be unconstitutional.

State v. Coleman (1978),         Mont .        , 579 P.2d 732, 741-
742.
       What the Court stated in Woodson, applies, of course, to

this case:
       ". . . respect for humanity underlying the
       Eighth Amendment requires consideration of the
       character and record of the individual offender
       .   .
         . as a constitutionally indispensable part
       of the process of inflicting the penalty of death."
       Woodson v. North Carolina, 428 U.S. at 304.
       By the time this Court had declared the 1974 death
penalty statutes unconstitutional (1978), the legislature in
1977 had already enacted new death penalty statutes in response
to Woodson, Coker and Roberts, and in res onse to Gregg v.
                                           d o 9
Georgia (1976), 428 U.S. 153, 96 S.Ct.-.2&         49 L.Ed.2d 859;
Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d

929, and Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct.
2960, 49 L.Ed.2d 913.    In Gregg, the court held that the
decision to impose the death penalty must be:
       "guided by standards so that the sentencing
       authority would focus - - particularized
                             on the
       circumstances - - - - -and the defendant."
                     of the crime
       (Emphasis added.) Gregg v. Georgia, 428 U.S.
       at 199.
Any statutory scheme therefore, to meet due process requirements

must consider not only the circumstances of the commission of
the crime, but also the particular circumstances of the individual

defendant.                      -62-
     Though it appears that the 1977 death penalty statutes
allow a consideration of the particularized circumstances
of the crime as well as the individual circumstances of the
defendant, I shall demonstrate from the record that the
sentencing court failed to consider and evaluate the individual
circumstances of the defendant.   Accordingly, the death

sentence cannot pass the minimum standards established by the
United States Supreme Court.
     The statutory scheme enacted by the 1977 legislature
is an attempt to comply with the demands of Greqq.      It attempts
to consider both the "particularized circumstances of the crime
and the defendant."   Section 95-2206.8 relates only to the
circumstances of the crime--that is, the aggravating circumstances
under which the legislature has deemed should merit a con-
sideration of whether or not to impose the death penalty.     As
far as the facts are concerned in this case, we are concerned
only with one aggravating circumstance set forth in subsection
(7), as the sentencing court determined specifically that
aggravating circumstances did not exist under remaining sub-
sections (1) through (6).   Subsection (7) provides :
     Section 95-2206.8. Aggravating circumstances
     are any of the following:


     " (7) The offense was aggravated kidnapping
     which resulted in the death of the victim."
     To impose the death penalty at least one aggravating
circumstance must be found to exist under the statutory scheme.
It was found to exist in this case, and therefore the sentencing
court crossed the first hurdle allowing the imposition of the
death penalty.
     Mitigating circumstances required to be considered are
set forth in section 95-2206.9, which contains eight subsections.
                               -63-
(I have previously set forth this statute in its entirety.)
Subsections (2) through (7) are concerned only with mitigating
circumstances surrounding the commission of the crime itself.
That is, they do not involve a consideration of the particularized
circumstances of the defendant as opposed to the crime itself.
The sentencing court entered specific findings negating .the

existence of any mitigating circumstances under subsections
(2) through ( 7 ) . The sentencing court, however, failed to comply
with either subsection (1) or (8).     Subsections (1) and (8)
involve a consideration of the individual defendant himself.
Because the individual defendant was not considered, the minimum
requirements of Gregg have not been met and the sentence must
be vacated.
     Subsection (1) requires the court to consider the defendant's
past history as far as his involvement in crime.      Subsection
(8) requires the court to consider any other factor concerning
the defendant that may be relevant in the decision-making
process as to whether or not to impose the death penalty.       I

quote again from the statute:
     "Mitigating circumstances. Mitigating cir-
     cumstances - - of the following:
                are any
     "(1) The defendant has no significant
     history of prior criminalactivity.


     " (8) A x other fact exists in mitigation
     of the penalty." (~m~hasisadded.)     Section
     95-2206; 9, R.C.M. 1947.

     As I have previously explained, it is the mandatory duty
of the sentencing judge to make specific findings of both
statutory aggravating circumstances and statutory mitigating
circumstances.   Moreover, section 95-2206.11, R.C.M. 1947,
requires that findings be made as to either the existence
- absence of each aggravating or mitigating circumstance.
or
This duty is imposed on the sentencing court regardless of
what evidence may have been introduced by the parties at the
                                -64-
presentence hearing.    In the case of subsection (I), the
sentencing court emasculated the record and the law.    In
the case of subsection ( 8 ) , there is an utter failure to
show affirmatively that the individual circumstances of the
defendant were considered.
     How did the sentencing court handle the factual deter-
mination of whether defendant had a "significant history of
prior criminal activity?"    I have previously quoted the
sentencing court wherein he acknowledged that he was perplexed
or annoyed shall we say, that defendant had no previous

record.    But one clue is provided by the statements of the
sentencing court   that he simply only acknowledged that defendant
had - record -- - previous felony conviction.
    no       of a                                 Somehow the
sentencing court had to establish that the defendant was a
bad person before he committed the aggravated kidnapping, and
therefore was beyond redemption.   We thus arrive at the findings
on this vital issue.
     During the trial defendant's accomplice, Robert Dennis
Nank, testified that on the same day of the crimes involved
here, both individuals burglarized a home in Roundup, Montana,
stole some rifles, and later buried them near the Roundup
airport.   No one else testified to these facts and neither
was there corroboration evidence of this testimony--for example,
the recovery of the rifles, etc.   But this testimony by Nank
was the key to the sentencing court's approach to subsection
(1) of section 95-2206.9.    Though the findings are convoluted,
the effect of the findings is that the defendant - have a
                                                 did
"significant history of prior criminal activity."
     We go first to the presentence investigation report as
to defendant's criminal background:
     "FBI records indicate the subject has been
     found guilty of Deliberate Homicide, Aggravated
     Kidnapping, Sexual Intercourse Without Consent.
     Date of arrest: October 24, 1974 in
     Forsyth, Montana.


     "The current offenses are the only criminal
     activities this individual has ever been
     arrested for according to the FBI sheet
     submitted to this office. No other criminal
     records could - found. (~mphasis
                   be                   added. )
In setting forth the facts of the crime, the presentence
investigation report did refer to the burglary and theft
of rifles from the Roundup house, which information was of

course, taken from the State's brief relating to the first
Coleman appeal.
     In entering its findings on the day of sentencing, the
sentencing court stated that it was doing so based on the
testimony and evidence presented at defendant's trial, and
based on the presentence hearing.     There is no reference at
all to any reliance on the presentence investigation report.

Because there was - evidence presented at the presentence
                  no
hearing, it is fair to conclude that the sentencing court
relied entirely on the trial testimony in determining whether
or not to impose the death penalty.
     Accordingly, based entirely on Nank's uncorroborated
testimony as to the house burglary and theft of rifles, the
sentencing court entered the following finding:

    "1. That on July 4, 1974, the defendant had
    Robert Dennis Nank were on the road on Nank's
    motorcycle on a journey which began at the
    Sheridan Veterans Administration Hospital in
    Sheridan, Wyoming, and continued through various
    towns in Montana, to Roundup, Montana. - -
                                             The two
    men
    - - burglarized a home in Roundup, Montana, on
    July 4, 1974, and stole several rifles whichwere
    subsequently-        --
                 buriei37iEZr the Roundup A-
                                           i      -. "
    (Emphasis added.)
     From this initial finding the court then proceeded to
tie it into subsection (1) which requires the sentencing court
to determine whether the defendant has a "significant history
of prior criminal activity."   Accordingly, in his second finding
he concluded:
     "That the State has been unable to prove by
     means of record checks that the defendant
     has anv other history of criminal activity.
           *               A                     -
     The only other criminal - which appears in
                             act
     -- record in this case - the aggravated
     the trial                        is
              ----
     burglary of a home in Roundup, Montana, where
     certain suns were stolen by the defendant and
     Robert ~ a n k July 4, 1974. B reason of
                  on
                                      3
     the foregoing, - credit in ml igation allowed
                     the
     by Section 95-2206.9(1) i s n o t appropriate -
                                                   to
     this defendant." (Emphasis added.)

Without expressly stating, in legal effect the sentencing court
determined that on the basis of Nank's uncorroborated testimony,
              -
the defendant did have a "prior history of criminal activity."
     This conclusion is clearly erroneous.   First, the
sentencing court had no right to establish a "prior history of
criminal activity" based entirely on the uncorroborated

testimony of Nank, who, by his own testimony, was defendant's

accomplice throughout the entire tragic events of July 4, 1974.
Second, the effect of the finding, although not expressly
stated, is that defendant - have a "prior history of criminal
                          did
activity."    The acts used to place a blemish on the criminal

history of the defendant occurred the same day as the aggravated
kidnapping, and even according to Nank, were part of a con-

tinuous course of criminal conduct.   This was not the

legislative intent when it directed the sentencing court to
determine under section 95-2206.9(1) if the defendant had
a "prior history of criminal activity."   Events occurring

on the same day as the crime in question hardly establish
a "prior history of criminal activity."    Indeed, the conclusion
reached here is more revealing as to the predisposition of
the sentencing court than it is revealing of the previous
life patterns of the defendant in relation to his propensity
to commit crimes.    The findings are totally unsupported by
a reasonable construction of the record and interpretation
of the law.
                               -67-
     Having effectively consigned defendant to the ranks
of a previous offender insofar as section 95-2206(9)(1) is
concerned, the court then entered the following conclusions
with relation to aggravation and mitigation:
     "The Court concludes as follows:
     "1. That the aggravating circumstances set
     forth in Section 95-2206.8, paragraph ( 7 )
     exists for the reason following:
     "That the offense of aggravated kidnapping was
     committed by the defendant and it resulted in
     the death of the victim, Miss Peggy Harstad.
     "2. That none of the mitigating circumstances
     listed in Zection 95-2206.9, R.C.M. are
     sufficiently substantial to call for leniency.
     That the only mitigating circumstance technically
     present in this cause is that the defendant has
     - record history of prior criminal activity."
     no
     (Emphasis added.)
     This determination, when coupled with the findings,
leads inescapably to the conclusion that the sentencing court
established a "prior history of criminal activity" of the
defendant by convicting him of a house burglary and theft
which occurred on the same day as the aggravated kidnapping.
Moreover, it is the findings (as opposed to the conclusions)
which are controlling for purposes of satisfying sections
95-2206.9(1) and 95-2206.11.   The finding was that by virtue
of the Roundup burglary and theft   ". . . the   credit -
                                                        in
mitigation   & section -
                       95-2206.9(1) - - appropriate -
                                    is not          to
this defendant."   This is merely another way of saying that
          -
defendant did have a "prior history of criminal activity."
Because of this clearly erroneous finding, the death sentence
cannot stand.
     There is, moreover, an even more glaring reason why
the death sentence cannot stand--the total failure to adhere
to the minimum standards of Gregg, that the record affirmatively
establish that the sentencing court considered not only the
circumstances of the crime itself, but also the "particularized
circumstances of   . . .   the defendant."   In this respect,
the record is utterly barren, and the death sentence must be
vacated.
      Since subsection (1) of section 95-2206.9 relates only
to the individual's "prior history of criminal activity" the
only remaining section which can possibly apply to the "parti-
cularized circumstances of     ...   the defendant" is subsection
(8) of the same statute.      It provides:
      "Mitigating circumstances.     Mitigating circumstances
      are any of the followins:


      " (8) Any other fact exists in mitigation
      of the penalty." (Emphasis added.)
Clearly, if the demands of Gregg are to be met, they must be
met under this subsection.     Otherwise, the statute itself would
be unconstitutional because it did not allow a consideration
of the "particularized circumstances of      . . . the defendant."
      The question we must ask is a simple one:     Did the
sentencing court consider the "particularized circumstances
of   ...   the defendant" before reaching the decision to impose
the death sentence, and if so, what findings or determinations
did it make concerning defendant as an individual?
      The only way a reviewing court can tell if the defendant
as an individual entered into the decision-making process
of the sentencing court, is if the record and findings indicate
that has in fact been done.     We cannot, in a case involving
a sentence of death, assume or presume that it was done.
      A reviewing court cannot guess as to whether the
sentencing court considered and amply weighed the "particularized
circumstances of   . . . the defendant."     The reason is a
simple one:   We might make a wrong guess.      Indeed, it would
appear that section 95-2206.11 was enacted to eliminate that
                             -69-
possibility and to provide a reviewing court with the
requisite record to review the death sentence imposed.
This statute provides in pertinent part:
      ". . . the determination of the court shall
      be supported by specific written findings
      - - as to the existence or nonexistence
      of fact
      of each of the circumstances.           .
                                             . set forth
      in 9 5 - 2 2 0 6 . 9 [Mitigating Circumstances]. The
      written findings shall be substantiated 9
      the records ot - triarand - sentenclna
                          -- the       - the             a

      proceedings." (Emphasis added.)
      If this statute, when construed along with section
95-2206.9   is to pass constitutional muster under the minimum
standards established in Gregg, then it is clear that the
record must affirmatively establish that the "particularized
circumstances of     . . .   the defendant" have been considered.
If the sentencing court did not do this, then the death
sentence cannot be permitted to stand.            The sentencing court
therefore is required to make findings concerning the "parti-
cularized circumstances of       ...    the defendant", and since
written findings are required only when a death penalty is
imposed, it must explain why it chose to disregard defendant's
individual circumstances in determining to impose the death
penalty.    The findings of the sentencing court must be
examined in light of these requirements.
      In findings - through - of the death penalty judgment,
                  a         e

the sentencing court specifically found the absence of
mitigating factors ( 2 ) through (7) of section 9 5 - 2 2 0 6 . 9 .
Subsections ( 2 ) through (7) relate only to facts surrounding
the commission of the crime itself.          On the other hand,
subsection (8) is ignored altogether.          A reviewing court is
left entirely in the dark as to whether the sentencing court
even considered the "particularized circumstances of             . . .
the defendant."      In the judgment there is only one reference
to subsection ( 8 ) , and that is included in a general, virtually
all-inclusive umbrella finding:
                                 -70-
     "That there is no evidence appearing,
     either in the record of the trial held in
     this cause or the special sentencing hearing
     accorded, supporting a finding of any of the
     circumstances in mitigation under the other
     number paragraphs of Section 95-2206.9, namely
     paragraphs -(2) through (8). There is, likewise,
                  -
     no evidence - A facts which are Gerative
     7
                  of anv
     - - - case to mltigate -penaltyL
     In this -                            in this
                                          --
     cause.    . ." (Emphasis added.)
This finding hardly complies with the requirements of section
95-2206.11, let alone the demands of Gregg.   We certainly
learn nothing about the defendant from that finding.

     The sentencing court stated in this finding that the
absence of mitigating factors was gleaned from the trial itself
and from the sentence hearing.   This finding as to subsection

(8) of section 95-2206.9 suggests two conclusions, neither of
which satisfies the demands of Gregg.   The first conclusion is
that because no evidence was introduced at the sentencing hearing
the sentencing court relied entirely on the record of the

trial in reaching the decision to impose the death penalty.
But there is no evidence in the trial record as to the individual

circumstances of the defendant, and even more importantly,
if anything concerning the defendant's individual situation
was considered as a result of the trial record, we have no idea

what it was.    For the record is silent as to what, if anything,
concerning the defendant, was considered and evaluated.   Surely

therefore, the sentencing court did not fulfill the demands

of section 95-2306.11 or the minimum constitutional requirements
of Gregg.
     A second alternative is that one can be charitable to
the sentencing court and conclude that because the presentence
investigation report was officially made part of the record at
the presentence hearing, the sentencing court would be presumed

to have made use of it in determining whether or not to impose

the death penalty.    But in the record of the sentencing itself
there is not one reference to the presentence investigation
report, and neither is there a direct reference to it in
the written findings and judgment.         Again, on such an imporant
matter this Court cannot assume or presume that the sentencing
court considered and evaluated the "particularized circumstances
of   . . .   the defendant."   It is either in the record and
findings or it isn't.      It isn't.

      The result is that one cannot conclude from either
situation that the sentencing court considered and evaluated
the "particularized circumstances of         . . .   the defendant"
before reaching its decision to impose the death penalty.
This being so, the death sentence does not meet the minimum
standards imposed by Gregg, and it must therefore be vacated.
      There is no question that the sentencing court failed

to comply with sections 95-2206.9, subsections (1) and (7).
Its handling of the issue relating to defendant's "prior
history of criminal activity" is a mockery.           The majority did
not reach the issue of whether a "history - prior criminal
                                          of
activity" was established by acts committed on the same day
as the aggravated kidnapping.       It is true that the defendant
did not raise this issue, or if he did, it was inartfully

obscured in the broadside attack launched against the second
imposition of the death penalty; but nonetheless, it was the
duty of this Court under automatic mandatory review, to
determine this issue.
      The same is true of the failure of the sentencing court
to comply with the constitutional mandate of Gregg to consider
the "particularized circumstances         . . . of   the defendant."
Other than a consideration of a "history of prior criminal
activity" as mandated under section 95-2206.9 (1), R.C.M. 1947,
the only section that can possibly allow for a consideration
of the "individualized circumstances         . . .   of the defendant"
                                   -72-
is subsection (8) of section 95-2206.9.       Here, there is
a total failure of the sentencing court to show this Court

what factors it considered and evaluated concerning the
defendant as a person.     Again, I must state that this issue

was only tangentially raised by the defendant, and again it
was undoubtedly inartfully obscured in the broadside attack
which defendant launched against the second imposition of

the death penalty.    But again, the statutes mandated that we
review the sentence imposed to determine its compliance with

the law.   Furthermore, the demands of Woodson and Gregg, leave
no alternative for this Court but to determine if the record

affirmatively shows -a consideration of the "particularized

circumstances   . . . of   the defendant."   Since it does not, it
is our duty to vacate the death penalty.

     The automatic review provisions for death sentences are

set forth in sections 95-2206.12 through 95-2206.15, R.C.M.
1947 (now sections 46-18-307 through 46-13-310 MCA).      Under
section 95-2206.13, the imposition of all death sentences
in this State requires this Court to review its legality and

sufficiency.    Section 95-2206.13 sets forth the priority of
review accorded to death sentence cases, and in essence states

that it shall take precedence over all other cases.      Section

95-2206.14 requires that the entire record of the proceedings
be forwarded to this Court.
     The extent of review required is set forth in section


    "Supreme court - -
                   to make determination as
    to sentence. The supreme court shallconsider
    m e punishment as well as any errors enumerated
    by way of appeal. With regard to the sentence,
    the court shall determine:
    "(1) whether the sentence of death was
    imposed under the influence of passion,
    prejudice, or any other arbitrary factor.
     " (2) whether the evidence supports the
     judge's finding of the existence or nonexistence
     of the aggravating or mitigating circumstances
     enumeraged in 95-2206.8 and 95-2206.9; and
     "(3) whether the sentence of death is excessive
     or disproportionate to the penalty imposed in
     similar cases, considering both the crime and
     the defendant. The court shall include in its
     decision a reference to those similar cases it
     took into consideration."
     I cannot accept the majority's conclusions that after
an examination of subsections (1), (2), and (3) of section
95-2206.15, that the death sentence was properly and justifiably
imposed.   The majority simply failed in its duties of review.
     Conceding arguendo that Nank's uncorroborated testimony
was sufficient to establish that defendant committed the
house burglary and theft of rifles, the opinion is silent on
the question of whether these acts, committed on the same day
a the aggravated kidnapping, were sufficient to establish a
"history of prior criminal activity."        This is not a question
of fact.   It is a legal question which this Court must answer,
and has failed to do so.   For this reason, the majority has
not complied with section 95-2206.15(2).
     Neither has the majority explained whether the record
affirmatively establishes that the sentencing court considered
and evaluated the "particularized circumstances of        . . .   the
defendant" in order to be in compliance with section 95-2206(8),
and the demands of Woodson and Gregg.       Not having done so, it
is clear that the majority has not complied with its review
duties under section 95-2206.15(2).       Under this section the
record of the sentencing hearings and judgment must clearly
                         -
establish the "existence or nonexistence of the aggravating
or mitigating circumstances   . ..   I'   (Emphasis added. )   I note
that the only reference in the majority opinion to any of
the "particularized circumstances of      ...    the defendant"
is in relation to the handling of the "prior history of
criminal activity."
        Nor can I a c c e p t t h e c o n c l u s i o n s of t h e m a j o r i t y t h a t

t h e d e a t h s e n t e n c e was n o t , p u r s u a n t t o s e c t i o n 9 5 - 2 2 0 6 . 1 5 ( 1 ) ,

"imposed under t h e i n f l u e n c e of p a s s i o n , p r e j u d i c e , o r any

other arbitrary factor."                     The t o t a l c i r c u m s t a n c e s do n o t

support t h i s conclusion.

        Circumstantially, t h e conclusion is inescapable t h a t

t h e s e n t e n c i n g c o u r t o r c h e s t r a t e d t h e p r o c e e d i n g s from t h e

v e r y b e g i n n i n g s o t h a t i n t h e e v e n t of a c o n v i c t i o n of a g g r a v a t e d

k i d n a p p i n g , t h e d e a t h p e n a l t y would be imposed.                Before t r i a l

on t h e m e r i t s , and a f t e r d e f e n d a n t had e n t e r e d h i s p l e a of

n o t g u i l t y , and o v e r d e f e n d a n t ' s o b j e c t i o n , t h e s e n t e n c i n g

c o u r t on i t s own motion, amended t h e c h a r g e o f a g g r a v a t e d

k i d n a p p i n g t o a l l e g e t h a t t h e c r i m e r e s u l t e d i n t h e d e a t h of

t h e victim.         A t t h e c o n c l u s i o n of t h e t r i a l , he s u b m i t t e d a

s p e c i a l i n t e r r o g a t o r y t o t h e j u r y t o a s k i t t o d e t e r m i n e whether

t h e aggravated kidnapping r e s u l t e d i n t h e d e a t h of t h e victim.

A s a r e s u l t o f t h i s amended i n f o r m a t i o n and s p e c i a l f i n d i n g

of t h e j u r y , t h e s e n t e n c i n g c o u r t p l a c e d h i m s e l f i n a p o s i t i o n

t o impose t h e mandatory d e a t h p e n a l t y which was t h e n r e q u i r e d

by s t a t u t e .    I t m a t t e r s n o t t h a t t h i s Court determined t h e

amended i n f o r m a t i o n and submission of t h e s p e c i a l i n t e r r o g a t o r y

t o t h e j u r y , t o be m a t t e r s of form, and t o be u l t i m a t e l y

i n c o n s e q u e n t i a l b e c a u s e t h e d e a t h s e n t e n c e was v a c a t e d .   It

c e r t a i n l y d e m o n s t r a t e s t h e s t a t e of mind of t h e s e n t e n c i n g judge.

        The same k i n d of a c t i v e involvement i s e v i d e n t a f t e r

t h i s C o u r t d e c l a r e d t h e mandatory d e a t h p e n a l t y under t h e t h e n
e x i s t i n g s t a t u t e s under which d e f e n d a n t was s e n t e n c e d , t o b e

unconstitutional.                Before t h e s e n t e n c i n g c o u r t r e c e i v e d t h e

r e m i t t i t u r from t h i s C o u r t , i n d e e d , b e f o r e t h i s C o u r t had

r u l e d on d e f e n d a n t ' s p e t i t i o n f o r r e h e a r i n g , t h e s e n t e n c i n g

c o u r t had o r d e r e d a p r e s e n t e n c e i n v e s t i g a t i o n r e p o r t and o r d e r e d
the defendant immediately returned from the state prison
to be placed in the Custer County jail.   Apparently on
the same day as the remittitur was received by the sentencing
court, it sent out an order setting a presentence hearing
and stated that it would be conducted under the 1977 death
penalty statutes.    The sentencing judge ignored our decisions
on issues three and eleven which clearly indicated that this

Court did not contemplate that the death penalty would be a
reconsideration upon resentencing.    He read in everything he
possibly could to construe the first Coleman opinion to mean
he could apply the 1977 death penalty statutes retroactively.
     At the sentencing hearing itself, he accepted and filed
the presentence investigation report, but at least as far
as the record is concerned, the sentencing court iqnored it,
and did not consider the "particularized circumstances    . . .
of the defendant."   He stretched the law to the breaking point
to saddle the defendant with a "history of prior criminal activity",
a clear misreading and misapplication of section 95-2206.9(1).
He allowed final argument on the penalty to be imposed, only
after he had predetermined the issue by coming to court armed
with his written death sentence.   He totally failed to consider
the lenient treatment given to Nank who was by his own
admissions, an equal participant in the crimes for which
defendant was ordered to be hanged.   Moreover, Nank had a
previous felony record.
     If these factors, individually, or at least collectively,
do not demonstrate that the sentencing authority was "under
the influence of passion, prejudice, - - -
                                     or any other arbitrary
factor" (emphasis added), I do not know what would.    It is
an easy matter for a reviewing court to find an absence of
"passion, prejudice, or any other arbitrary factor" if it
                               -76-
views the various factors in isolation, and does not
consider them together.    But, they must be considered together
if meaningful review is to be provided under section 95-2206.15(1).
Unfortunately, in this case, these factors were not considered
in isolation, let alone collectively.
     The only factor considered by the majority is the failure
of the prosecution to give the same plea and sentencing
considerations to defendant as he had given to Nank.    But the
majority has entirely missed the point--for two reasons.       First,
the sentencing court should have made some mention of the
distinctions in the penalties handed out to Nank as opposed
to the defendant, but failed to do so.     If the sentencing court
thought there were legitimate reasons for treating the

defendant differently, it was obligated to set forth those
facts and reasons justifying the different treatment.    This
was not done, of course.     Second, the majority misreads
Gregg when it cites this case as justifying the different
treatments.
     The failure to properly apply Gregg results from the
majority's reliance on the prosecution's brief in relation to
Gregg.   In its brief, the prosecution stated in response to
defendant's argument that defendant was the victim of arbitrary
and capricious treatment being that Nank was shown leniency:
     "Furthermore, leniency in one case does not
     invalidate the death penalty in others." Gregg,
     428 U.S. at 199, 224-226.
In its opinion, the majority stated:
     "Leniency in one case does not invalidate
     the death penalty in others." Gregg, 428
     U.S. at 199, 224-226.
The State made no effort in its brief to explain or expand
upon this interpretation of Gregg, and neither did the
majority opinion.   Suffice to say that Gregg does not apply
to the facts of this case.     It was hardly appropriate for
                                 -77-
t h e m a j o r i t y t o r e l y on t h i s s t a t e m e n t o f t h e S t a t e i n

i t s b r i e f as it i s n o t h i n g more t h a n a c o n t i n u i n g and u n r e l e n t i n g

e f f o r t t o s a l v a g e t h e d e a t h s e n t e n c e imposed i n t h i s c a s e ,

w i t h o u t r e g a r d t o a f a i r and d i s p a s s i o n a t e i n t e r p r e t a t i o n

o f t h e law o r f a c t s .

         The b a s i c t h r u s t o f t h e s t a t e m e n t i n Gregg w a s t h a t a

d e f e n d a n t handed t h e d e a t h s e n t e n c e c a n n o t complain t h a t h e

h a s been t h e v i c t i m o f a r b i t r a r y and c a p r i c i o u s c o n d u c t s i m p l y

b e c a u s e a n o t h e r d e f e n d a n t , - a n o t h e r c a s e , h a s f o r some r e a s o n
                                                in

been t h e b e n e f i c i a r y o f a p r o s e c u t o r ' s mercy.               That i s a f a r

c r y from t h e s i t u a t i o n h e r e where Nank a d m i t t e d c o m m i t t i n g

p r e c i s e l y -- c r i m e s o f which t h e d e f e n d a n t was c o n v i c t e d
                  t h e same

by a j u r y .       B u t , Nank was shown mercy:                      t h e d e f e n d a n t was

s e n t e n c e d t o hang.         This can h a r d l y be i n t e r p r e t e d a s a j u s t

and evenhanded a p p l i c a t i o n o f t h e law.

        On May 7 , 1975, R o b e r t Nank a g r e e d t o c o o p e r a t e w i t h

t h e S t a t e i n i t s p r o s e c u t i o n of t h e defendant.                   I n exchange

f o r t h i s c o o p e r a t i o n , he r e c e i v e d c e r t a i n b e n e f i t s - - p r i m a r i l y

a d i s m i s s a l of t h e charge of aggravated kidnapping charge

which e l i m i n a t e d t h e p o s s i b i l i t y t h a t t h e d e a t h p e n a l t y would

b e imposed.           S i x t e e n d a y s l a t e r , d e f e n d a n t Coleman, t h o u g h

s t i l l maintaining h i s innocence, o f f e r e d t o plead g u i l t y t o

t h e same c h a r g e s t o which Nank had p l e a d e d g u i l t y , b u t i n s i s t e d

on m a i n t a i n i n g h i s i n n o c e n c e .     The S t a t e r e f u s e d h i s o f f e r .

The c a s e a g a i n s t d e f e n d a n t went t o t r i a l i n e s s e n c e b e c a u s e

defendant r e f u s e d t o admit h i s g u i l t .                   P r i m a r i l y on t h e b a s i s

o f N a n k ' s t e s t i m o n y , he was c o n v i c t e d o f all c h a r g e s , i n c l u d i n g

t h e c r i m e of a g g r a v a t e d k i d n a p p i n g .

        The m a j o r i t y h a s grounded p a r t o f i t s o p i n i o n on t h e

f i r s t Coleman c a s e w h e r e i n t h e m a j o r i t y h e l d t h a t it was n o t
                                                        refuse t o
i m p r o p e r f o r t h e p r o s e c u t i o n t o / a c c e p t d e f e n d a n t Coleman's

conditional o f f e r t o plead g u i l t y .                   Although t h e p r o s e c u t o r
did have the discretion to refuse this conditional plea
offer, the consequences which followed are not fair in the
slightest degree.   Nor should they be tolerated.
     Conceding that the prosecutor had the right to refuse
the conditional plea offer, it does not establish that the
conditional plea offer was constitutionally infirm.   At least,
that is the law of the United States Constitution.    In North
Carolina v. Alford (1970), 400 U.S. 25, 97 S.Ct. 160, 27 L.Ed.2d
     it was held that there is no constitutional error
accepting a guilty plea which contains a protestation of
innocence.    Accordingly, at least, under the United States

Constitution the prosecutor and sentencing court could have
accepted the conditional plea of guilty.   If they had, the
defendant could not later withdraw his plea.
     It is important to note however, that the record does
not affirmatively establish why the conditional plea was not
accepted.    That is, it does not establish that the prosecutor
would have treated defendant just like Nank if he would
unconditionally plead guilty to the charges.   We cannot
conclude therefore, that the prosecutor ever promised defendant
the same treatment as Nank.    In terms of plea bargaining the
American Bar Association has established its position relating
to similarly situated defendants:
     "Similarly situated defendants should be
     afforded equal plea agreement opportunities."
     (American Bar Association on Standards for
     Criminal Justice, Standards Relating to -The
     Prosecution Function - - Defense Function,
                          and the
     approved draft (1971), at 102. )
There is no showing in the record that the prosecutor ever
offered the same terms to defendant as he did to Nank, and
yet there is not a better illustration of similarly situated
defendants.    Under the circumstances of this case, there was
a clear affirmative duty for the prosecutor to establish
that he offered the same plea bargain to defendant as he
did to Nank.     The prosecutor did not and cannot meet that
burden.
     There is no question that absent Nank's accomplice
testimony, the State would have insufficient evidence to convict
defendant.     But once it struck the plea bargain with Nank
it had the evidence to convict defendant of the charges if
the jury believed Nank's testimony.    The record establishes,
that is, Nank's confession and Nank's testimony at trial,
establishes that Nank and defendant committed the same acts
against the victim.     The effect in terms of sentencing, however,
is that because the State could not convict defendant without

Nank's testimony, it struck a bargain to keep one man alive
in exchange for the possibility of ultimately putting one man
to death--the defendant.    The jury verdict against the defendant,
based on Nank's testimony, set in motion the ultimate imposition
of the death penalty.     Such disparate results from such
similar criminal acts, cannot be countenanced by society, and
certainly should never be countenanced by the courts.    The
majority has performed a great injustice by ratification of
this unequal treatment.
     There are two procedural matters concerning the
sentencing proceedings that need some clarification.     The
majority has concluded that defendant was not deprived of
an opportunity to present oral arguments at the presentence
hearing, and moreover, that in essence, defendant waived
further rights to present meaningful arguments by not presenting
proposed findings of fact to the sentencing court after having
been invited to do so.    On this basis, the majority concludes:
     "Thus, defendant and his counsel had at least
     two opportunities to submit argument to the
     Court regarding the death penalty prior to
     July 10, 1978 hearing, but did not do so."
This conclusion has greatly distorted the realities of
the situation.
     I have already discussed the proceedings which took place
during the so-called sentencing hearing.    As neither party
submitted any evidence at the presentence hearing, and the
only document filed at the presentence hearing was the
presentence investigation report, it was agreed that both parties
would submit briefs to the sentencing court with regard to
their respective positions.    This apparently was done, although
this Court does not have the benefit of those briefs.     In
addition, the sentencing court invited both sides to submit
proposed findings and conclusions, but only the prosecutor
indicated positively that he would do so.   The sentencing court
did not tell the parties that submission of briefs would
constitute a waiver of oral argument concerning the penalty
to be imposed.    It is logical to assume that before sentencing,
defense counsel believed that he would have an opportunity to
make a meaningful and effective oral argument against imposition
of the death penalty.   Clearly, the sentencing court did not
comply with the spirit of section 95-2206.7, which provides
in pertinent part:
     ". . .   The state and the defendant or his
     counsel - shall be permitted to present argument
                -
     for or against sentence of death." (Emphasis
     added. )
     The word "shall" is mandatory.   For it to be meaningful,
the implication is that argument shall be presented before
the sentencing court makes its decision.    But such is not the
case here.    True, the sentencing court, on July 10, 1978,
allowed defense counsel to argue against imposition of the
death penalty, and the state to argue for imposition of the
death penalty.   But by this time the court had already decided
to impose the death penalty.    The sentencing court had come to
court with its written death sentence already prepared.    As I
                              -81-
have previously mentioned, insofar as the defendant is
concerned, this is akin to allowing defense counsel in a
criminal case to make final arguments to the jury only after
the jury has returned with its guilty verdict.     Under these
circumstances, it cannot be reasonably argued that defendant
was given a meaningful opportunity to argue against the death

penalty when the decision to hang had already been made.     This
not only violated the spirit of section 95-2206.7, it also
constitutes a denial of the effective assistance of counsel.
     Nor is it reasonable to conclude as did the sentencing
court, and the majority here, that defendant effectively waived
another opportunity to argue against the imposition of the
death sentence by failing to submit proposed findings of fact

and conclusions of law.    It is true that the sentencing court
invited defense counsel and the prosecutor to submit proposed
written findings and conclusions; but only the prosecutor
responded that he would do so.     The prosecutor did present
proposed findings and conclusions.      But does the sentencing
court truly believe, does the majority truly believe, that
the tide could well have been turned for the defendant if only

his lawyer had presented proposed findings of fact?     How far
must we bury our head in the sand?
     Indeed, the statute calling for "specific written findings
of fact" clearly operates only when a decision is made to
take a defendant's life.   Section 95-2206.11, provides in
relevant part:
     "In -- in which the court imposes
         each case
     the death sentence, the determination of
     the court shall be supported by specific
     written findings of fact . . ." (Emphasis
     added.
This statute leaves no doubt that findings are required only
in the event of a decision to impose the death penalty; and
the statute certainly places no duty upon the defendant to
                                 -82-
make those proposals.   The duty is that of the court and
the court alone to support its death sentence with the
required "specific written findings of fact."   To impose a
duty and burden of persuasion upon the defendant to present
his own proposed findings of fact is clearly beyond the
contemplation of the statute, and beyond any duty that this
Court should gratuitously impose on the defendant.
     What if the defendant's counsel did submit proposed
findings of fact? We may safely assume they would have
led to the inexorable conclusion that defendant's life should
be spared.   But, if the sentencing court spared defendant's
life, the proposed findings would not serve any function what-
soever.   Since the decision to grant mercy is one in which
no findings of fact are required, and it also being obvious
that the State has no appeal from such a decision, the proposed
Gndings most likely would have found their way to the trash can.
Furthermore, the majority ignores the primary function of
findings of fact in terms of the decision-making process at
the trial level.
     If trial judges and trial lawyers are candid, they will
admit that proposed findings are prepared and submitted by
counsel to assure that in the event the trial court finds in
their favor that all the bases are covered in the event of an
appeal.   They are submitted possibly with the hope, but rarely

if ever, with the expectation that the proposed findings will
actually be a decisive factor in influencing the trial court
to rule in favor of one's client.   Indeed, it has been my
experience, and an unfortunate one from the standpoint of
appellate review, that most often the trial court simply rubber
stamps the proposed findings of the winning side.    Rarely do
we get any insight as to what the decision-making process was,
or how the trial court in fact viewed the evidence at trial.
                            -83-
In the instant case, I do not know how closely the findings
of fact parroted the proposed findings submitted by the
prosecutor, as the proposed findings are not a part of the
record on appeal.
     An examination of the findings entered in this case does

not give a reviewing court any insight as to what the fact
finder was thinking; that is, what factors were actually
involved in motivating and impelling his decision to impose
the death penalty.   The findings are cold and calculated and
set out with staccato precision--but hardly a revelation as
to the reasons for concluding the defendant must die.     In con-
sidering and weighing the totality of circumstances surrounding

the commission of the crimes by defendant, and by Nank, and in
considering and weighing the totality of circumstances surrounding
the "particularized circumstances of   . . . the defendant",
what actually impelled the sentencing court to sentence
defendant to hang while at the same time he knew that an
equally guilty accomplice would not hang?   The record is
silent as to these factors--the real reasons hidden forever
in the bosom of the court.   The findings are more revealing
for what they don't say than for what they do say.
     It is clear beyond question that defendant's presentation
of proposed findings, in addition to not being required,
would have been a manifest exercise of futility.   Findings of
fact collaborated in by a thousand William Shakespeares could
not have deterred the sentencing court from its chartered
course.   Does any member of the majority truly believe
otherwise?   Under these circumstances to conclude that
proposed findings of fact are a form of argument calculated
to have and with a reasonable possibility of having a certain
persuasive effect on the sentencing court, is utter nonsense.
     Before discussing the majority position that only
cases involving imposition of the death penalty must be
reviewed by this Court, I emphasize that I do not contend

defendant would have to be treated exactly like Nank in terms
of the sentencing imposed.    In the case of Nank, the charge
of aggravated kidnapping was dropped as part of a plea bargain
agreement and obviously he could not be sentenced at all for
that crime.   But since defendant was convicted by a jury of
three crimes (including, of course, that of aggravated kid-
napping), he could have been sentenced for all three crimes.
The sentencing court went one step too far when it sentenced
the defendant to hang.
     One of the purposes of appellate review is as the
majority states, "to serve as 'a check against the random
or arbitrary imposition of the death penalty'", citing Gregg,
428 U.S. at 206.   But Gregg did not hold that only other death
penalty sentences need be compared.   Nor do I believe the

Georgia case relied on by the majority (Moore v. State (1975),
233 Ga. 861, 213 S.E.2d 829) is authority for the majority
position in light of the wording of the statutory review
scheme in this state.    Section 95-2206.15 does not so limit
our review.   It provides in relevant part:
     "Supreme Court to make determination as to sentence.
    "The supreme court shall consider the punishment
    as well as any errors enumerated by way of appeal.
    With regard to the sentence, the court shall
    determine:


    "(3) whether the sentence of death is excessive
    or disproportionate to the penalty imposed in
    similar cases, considering both the crime and
    the defendant. The court shall include in its
    decision a reference to those similar cases it
    took into consideration."
If only a comparison with other death sentences was intended,
the legislature would have inserted the word "death" before
the word "penalty".
     If the actual purpose of mandatory review (mandated by
the United States Constitution) is to check against "the
random or arbitrary imposition of the death penalty", I fail

to see how such review can be fairly and effectively fulfilled
without a comparison with those cases wherein the death
penalty could have been imposed, but for some reason was not.
Factors which may lead a sentencing court to not impose the
death penalty may well be worthy of consideration by a
reviewing court in determining whether a particular case
under review merits the same considerations. A sentencing
judge may have sound and persuasive reasons why he did not
impose a death penalty in a particular case.    This court
should not deny access to this decision in determining
whether or not a case we are reviewing may merit the same
outcome.
     I am not unaware, however, of the practical problems
involved in getting access to such cases.   For example,
section 95-2206.11, which I have previously discussed in
relation to another point, clearly requires "specific written
findings of fact" only when the death penalty - imposed.
                                              is
If such findings are not entered, and if a decision of a
sentencing court is not filed explaining its reasons for not
imposing a death sentence in a particular case, for all
practical purposes this Court would be deprived of the
benefit of this decision for review purposes.   But, I believe
that a failure to use such cases for comparison is a denial
of effective review, particularly since mandatory review is
required by decisions of the United States Supreme Court.
     There are additional practical problems in seeking to
fairly apply a statutory scheme of capital punishment.     The
vagaries of the components entering into the decision-making
process of the prosecutor and the sentencing judge are too
many and mostly never become a matter of record so that a
reviewing court can consider them.   Whether the death penalty
                           -86-
will be imposed in a particular case will depend almost
entirely on the personal beliefs and attitudes of the
prosecuting attorney and the judge who is on the case.    Many
prosecutors would be loathe to seek the death penalty.    On
the other hand there are those who would not hesitate in
determining that the death penalty is the appropriate and
only punishment.     The same is true of the judge who is on the
case.    Many judges would be loathe to impose the death penalty.
On the other hand, there are those who are known as "hanging
judges".    To them, the death penalty should be imposed more
often and in a wider variety of cases.    Furthermore, there
are many political considerations which operate upon pro-
secutors and judges in determining whether the death penalty
will be imposed.     A defendant may be sentenced to death solely
because the right combination of prosecutor and sentencing
judge operated in tandem in reaching the decision to impose
the death penalty.
     Of course, many decisions are made disposing of the
death penalty aspects of a case long before a defendant
either pleads guilty to a capital crime or is found guilty
by a jury.    In many cases, a threat of the death penalty
hanging over a defendant may induce him to plead guilty to
a crime in exchange for the promise of a prosecutor to
eliminate the death penalty aspects of the charge involved,
or a promise not to seek the death penalty.     It would be
extremely difficulbto say the least, for a reviewing court
to obtain sufficient information concerning these cases so
as to compare them with a death sentence currently under review.
        I point out these factors only to stress my belief that
it is virtually impossible to rationally and fairly administer
and enforce a statutory scheme of capital punishment.     But
                            -87-
since capital punishment as a permissible means of punishment
seems now to be an accomplished fact, this Court should spare
no efforts in seeing that it is administered as fairly as
we are capable of doing it.    To use only cases imposing the
death penalty as a comparison with a case under review, fails

miserably in this objective.    Somehow the whole process of
meaningful appellate review is diminished.
     The majority has dismissed with no meaningful discussion
the defendant's contention that a jury should have been allowed
to determine whether or not the death penalty should be imposed.
Perhaps it is not a constitutional requirement under the
United States Constitution, but I am convinced that in the
long run, with all the inherent frailties which a scheme of
capital punishment entails, a jury will arrive at a more even-
handed application of the law to the facts than will a judge.
There are no sound policy reasons why, with appropriate guidelines
and instructions, a jury should not be allowed to make that
fateful and final decision as to whether a person will live
or die.   We entrust juries with very important decisions in

our legal system; there is no reason why we should not entrust
them with this ultimate decision.     The ultimate power of life
or death should never be reposed in a single person as it is
under our present statutes.
     If a jury had decided this case, I am convinced that
it would immediately have recognized the fundamental unfairness
of allowing Nank to live but ordering Coleman to die.     A

jury would have established its own fundamental fairness and
sense of justice by deciding that neither should Coleman be
compelled to pay with his life.      If a jury is the "conscience
of the community", there is every reason for allowing this
collective conscience to render a final verdict as to life or
death.
                              -88-
     I arrive now at the final matter for discussion, and
that is whether the judge who imposed the initial death
penalty should have been permitted to again preside at the
second sentencing.   This question was not directly raised
by defendant, but it was impliedly raised by his contention

that he was denied opportunities for effective argument during
the proceedings relating to the second sentencing.    Clearly, the
sentencing judge should not have presided over the second
sentencing.   But the problem arises as to the steps to be taken
to obtain a new judge for the second resentencing.   Plainly
stated, there is no procedure other than the sentencing judge
voluntarily stepping aside for the second sentencing.
     It is clear from the beginning of this case that the
sentencing court had an inordinate amount of involvement
directed to the ultimate end of imposing the death penalty.
By amending the information after defendant had entered his
plea of not guilty and over the objection of defendant, and
by submitting the special interrogatory to the jury, the
sentencing court expressed an undeniable interest in the crime
of aggravated kidnapping.   A conviction of that crime mandated
the imposition of the death penalty.    By virtue of the amended
information and the jury's answer to the special interrogatory,
the defendant was then in a position where the mandatory death
penalty could be imposed.   This involvement continued immediately
after this Court declared the 1974 death penalty statutes to be
unconstitutional when the sentencing court immediately sent
a letter to counsel that he would conduct a sentencing hearing
under the 1977 death penalty statutes.    I have elsewhere related
the additional activities of the sentencing court in ultimately
deciding to impose the death penalty.
     Unfortunately, our present court rules on disqualification

do not provide for the disqualification of a judge in a

situation where a case has been remanded only for resentencing
as opposed to a reversal for a new trial.   This rule is set
forth in 34 St-Rep. 26.   In the context of this case, this
rule provides only that a party can file a peremptory motion

to substitute a judge if this Court has ordered a new trial.
There is also a provision for disqualification for cause, but

it is extremely difficult to invoke, and rarely is a success-

ful instrument of obtaining a change of judge.    There is an

argument that the peremptory disqualification rule could be
interpreted to apply also to a remand for resentencing, but
in any event, defendant did not move to peremptorily disqualify
the sentencing judge.   Accordingly, that issue is not directly
before this Court.

     Nonetheless, this case raises some fundamental problems

concerning the right to a new judge for resentencing, parti-
cularly when the death penalty has already been imposed the
first time and there is even the slightest possibility that
it will again be imposed.   The policy behind the right to a
new judge after a reversal was stated in King v. Superior
Court, In and For County of Maricopa (1972), 108 Ariz. 492,

502 P.2d 529, where the Arizona Supreme Court stated:

    "In the case of an appeal, reversal and
    a remand for a new trial, it is always
    possible that the trial judge may subconsciously
    resent the lawyer or defendant who got the
    judgment reversed. The mere possibility of
    such a thoughtin the back of a trial judge's
    mind means that a new judge should be found."
    (Emphasis added). 502 P.2d at 530.

In that case the Arizona Supreme Court was construing a rule
of procedure similar to the rule of this state.    There is no
reason, of course, why this same "mere possibility would not

exist in the case of a remand for resentencing.   Without question
the "mere possibility" would exist in a case where there
was even the slightest possibility that the death penalty
could again be imposed upon the resentencing.     Under these
circumstances, there is absolutely no reason why the defendant
should have to face the same judge twice.
     The problem however is that Montana's rule, like Arizona's,
is not self-executing.    Unless a trial judge or sentencing
judge has a twinge of conscience and voluntarily steps aside,
there is no way presently to make him do so.     The problem is
more complicated here because the defendant did not ask the
sentencing judge to step aside.      Nonetheless, where such an
extreme penalty such as the death penalty is involved, I think
it incumbent upon this Court to make our own determination as
to whether, under the objective reasonable man test, the
defendant was deprived of a fair and impartial judge to preside
over the sentencing hearing and to ultimately impose sentence.
     There is no question that the sentencing court should
have known that a reasonable man would look askance at his
again presiding over the resentencing.     Be should have dis-
qualified himself; but being that he did not do so, this

Court should not allow the death sentence to stand based on
an application of the reasonable man test.      In criminal trials
(which obviously must include criminal sentencings) the
American Bar Association has adopted standards that provide:
     "The trial judge should recuse himself
     whenever he has any doubt as to his ability
     to preside impartially in a criminal case
     or whenever he believes his impartiality
     can reasonably be questioned." American
     Bar Association on Standards for Criminal
     Justice The Function - - -
                          of the Trial Judge,
     (1972), p. 8.
     The test for determining when a trial judge should step
aside is an objective one, not a subjective one.      It has
been stated as follows:
                              -91-
     "Would a person of ordinary prudence knowing
     all of the facts known to the judge find that
     there is a reasonable basis for questioning
     the judge's impartiality?" Thode --
                                       The Code
     of Judicial Conduct--The First Five Years
     -
     (1977), Utah L.Rev. at 402.
Although this Court has not adopted this Code of Judicial
Conduct, the rule is but a rule of common sense and has
existed long before the adoption of the canons discussed in
the law review article.
     In the case of In Re Hupp's Fstate   (1955), 178 Kan.
                   432,
672, 291 P.2d 428,/the Kansas Supreme Court reiterated the
rule declared in Tootle v. Berkley (1899), 60 Kan. 446, 56
P. 755, where it stated:
     ". . . when circumstances and conditions
     surrounding litigation are of such nature
     they might cast doubt and question as to
     the fairness or impartiality of any judgment
     the trial judge may pronounce, such judge,
     even though he is not conscious of any bias
     or prejudice, should disqualify himself and
     permit the case in question to be tried before
     a judge pro tem. "
     It is true that these cases were decided under circumstances
where a party moved at the lower court to remove a judge from
a case, but where he refused; or where a party was successful
in removing a judge from the bench, but where the other party
contended upon appeal that the judge should not have removed
himself.   But if these rules are to have any substantive
meaning, particularly in a death penalty case, it should not
be necessary that the defendant have moved to have the judge
step aside in favor of another judge.   The sentencing court
should be ever mindful that this Court will, under the reasonable
man test, scrutinize the proceedings, and if we determine that
the sentencing judge has failed the reasonable man test, we
will remand the case for resentencing and order a new judge
to preside.
        I n a d e a t h p e n a l t y c a s e , t h i s Court h a s an o v e r r i d i n g

d u t y , r e g a r d l e s s of t h e e x i s t i n g r u l e s of p r o c e d u r e g o v e r n i n g

t h e d i s q u a l i f i c a t i o n of judges,      t o d e t e r m i n e i f from t h e

e n t i r e r e c o r d and t h e t o t a l i t y of c i r c u m s t a n c e s ~ h e d e f e n d a n t
                                                                                t

h a s had a f a i r h e a r i n g .       Here, he c l e a r l y d i d n o t .         I would

v a c a t e t h e d e a t h p e n a l t y and o r d e r t h a t a new judge be c a l l e d

i n t o preside over t h e sentencing hearings.

        To s e t f o r t h m p o s i t i o n s c o n c e r n i n q t h e s e n t e n c i n g
                            y

h e a r i n g , and more p a r t i c u l a r l y , t h e w r i t t e n f i n d i n g s of f a c t

e n t e r e d by t h e s e n t e n c i n g c o u r t , I have of n e c e s s i t y had t o

q u o t e from many o f t h e w r i t t e n f i n d i n g s .         There i s always t h e

d a n g e r t h a t t h e r e a d e r may c o n c l u d e t h a t i f t h e w r i t t e n f i n d i n g s

were reviewed i n t h e i r e n t i r e t y p e r h a p s t h e y would n o t s u p p o r t

m position.
 y                     F o r t h i s r e a s o n , I have appended t o t h i s d i s s e n t

a s E x h i b i t A , a n e x a c t copy of t h e F i n d i n g s , C o n c l u s i o n s ,

Judgment and Order e n t e r e d by t h e s e n t e n c i n g c o u r t on J u l y 1 0 ,

1978, whereby t h e d e f e n d a n t was s e n t e n c e d t o hang.

        For a l l o f t h e f o r e g o i n g r e a s o n s I would v a c a t e t h e d e a t h

s e n t e n c e imposed i n t h i s c a s e , o r d e r t h a t a d i f f e r e n t d i s t r i c t

judge be c a l l e d i n t o p r e s i d e a g a i n a t t h e s e n t e n c i n g o f

d e f e n d a n t , and f u r t h e r o r d e r t h a t t h e d e a t h p e n a l t y i s n o t

t o be c o n s i d e r e d .
              I N THE DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT OF

                    THE STATE OF MONTANA, I N AND FOR THE COUNTY OF ROSEBUD
C S m. -..LC-.r73
 Az
                                                     * * * * k t * *
=itu€ NC,-------------
      STATE OF M N A A
                OTN                                      1
           Plainti f f                                   1
                                                                                No. 1 0 8 3     '
                                                         1
                                                         )       FINDINGS, CONCLUSIONS, JUDGMENT
     DEWEY EUGENE COLEMAN                                                k . ?ORDER
              Defendant                                  1


              P u r s u a n t t o a n I n f o r m a t i o n f i l e d on t h e 2 4 t h day of October, 1974,

     Dewey Eugene Coleman, d e f e n d a n t h e r e i n , was charged w i t h t h e c r i m e s of

      D e l i b e r a t e Homicide, Aggravated Kidnapping and S e x u a l I n t e r c o u r s e With-

      o u t Consent.         A j u r y t r i a l commenced October 23, 1975, and c o n t i n u e d

      t h r o u g h November 14, 1975, a t which t i m e t h e J u r y r e t u r n e d v e r d i c t s of

      " g u i l t y " on t h e t h r e e c o u n t s .       O November 21, 1975, t h i s Court s e n t e n c e d
                                                              n

      Coleman t o t h e maximum punishment on each c h a r g e , t h a t i s :                          The d e f e n d a n t

      was s e n t e n c e d t o d e a t h f o r Aggravated Kidnapping; h e was s e n t e n c e d t o

      100 y e a r s f o r D e l i b e r a t e Homicide; and h e was s e n t e n c e d t o 40 y e a r s f o r

      S e x u a l I n t e r c o u r s e Without Consent.            These s e n t e a c e s were o r d e r e d t o b e

      served consecutively.

              T h i s m a t t e r was appealed t o t h e Montana Supreme Court, which i n i t s

      d e c i s i o n of A p r i l 2 6 , 1978, upheld each of t h e t h r e e c o n v i c t i o n s , b u t

      remanded t h i s m a t t e r f o r r e - s e n t e n c i n g .     The Supreme Court h e l d t h a t t h e r e

      was no showing o f t h e i n f l i c t i o n of b o d i l y i n j u r y d u r i n g t h e c o u r s e of t h e

      r a p e of t h e v i c t i m , and t h a t , t h e r e f o r e , i n t h e a b s e n c e of t h a t a g g r a v a t i n g

      c i r c u m s t a n c e t h e maximum p e n a l t y f o r t h e crime i s 20 y e a r s .           The Supreme

      Court a l s o h e l d t h a t S e c t i o n 94-5-304,            R.C.M.    1947, i s u n c o n s t i t u t i o n a l

      b e c a u s e i t p r o s c r i b e s a mandatory i m p o s i t i o n of t h e d e a t h p e n a l t y .       The

      Court r e j e c t e d t h e d e f e n d a n t ' s c l a i m t h a t two j u r o r s were excused f o r

      c a u s e i n v i o l a t i o n of t h e Witherspoon Rule because o f t h e i r views on

      c a p i t a l punishment.          The Court l i m i t e d i t s d e c i s i o n o n over t u r n i n g t h e

      d e a t h p e n a l t y t o t h e absence of p r o c e d u r a l r e q u i r e m e n t s a l l o w i n g t h e t r i a l

      Court t o c o n s i d e r any m i t i g a t i n g c i r c u m s t a n c e s i n i t s i m p o s i t i o n of a
                             penalty under t h e u n c o n s t i t u t i o n a l death penalty s t a t u t e .           The


               I             Court s t a t e d , a s follows:

                                       "Under t h i s s t a t u t e , i f t h e c o u r t f i n d s , a s it d i d i n t h i s
                                                                                                                                    I
                                       case, t h a t t h e victim of an aggravated Ridnapping d i e d a s
                                       a r e s u l t of t h e crime, t h e convicted defendant m u s t b e
                                       sentenced t o d i e . There i s no provision f o r t h e t r i a l c o u r t
                                       t o consider any m i t i g a t i n g circumstances,               It only allows
                                       t h e c o u r t t o determine t h e aggravating circumstances of
                                       death.       This i s not c o n s t i t u t i o n a l l y permissible,

                                       To have a c o n s t i t u t i o n a l l y v a l i d death penalty, t h e United
                                       S t a t e s Supreme Court has e s t a b l i s h e d c e r t a i n necessary
                                       procedures,       See: Greqg v., Georgia, (1976), 428 U S             . . 153,
                                       96 S.Ct, 2909, 49 L0Ed.2d 859; P r o f f i t t v, F l o r i d a , (1976),
                                       428 U.S, 242, 94 S.Ct. 2960, 49 L.Ed.2d 913;
                                       (1976). 428 U.S, 262, 96 S . C t , 2950, 49 LoEd,2d 929, None
                                       of those required procedures a r e present i n Montana's death
                                       penalty s t a t u t e a s it e x i s t e d i n 1974, nor were they pro-
                                       vided otherwise i n t h i s case, Thus, defendant's death
                                       sentence cannot stand."

          l4    I                      On t h e 14th day of June, 1978, a s e p a r a t e sentencing h e a r i n g
                                                                                                                                    I
          15    ()           was h e l d t o determine t h e e x i s t e n c e o r non-existence of aggravat-
                                                                                                                                    I
          l6    1            ing circumstances o r m i t i g a t i n g circumstanc&s i n l i n e with t h e
                                                                                                                                    I
          l7       (1        provisions of Sec 95-2206.6,                 95-2206.7,        95-2206.8      and 95-2206.9,
                                                                                                                                        I

                                                                                                                           I
          18
                             R.C.M.,       1947,     A t time of t h e sentencing hearing t h e defendant
          19
                             f i l e d a Motion t o Quash, and when o f f e r e d an opportunity t o presen
          20




          22
                   I11       evidence o r any matter i n m i t i g a t i o n , declined t o do so,

                             t h e hearing t h e c o u r t granted t h e s t a t e and t h e defendant time t o
                                                                                                                        FO1l            1
          23

           24
                    I(1      f i l e b r i e f s p a r t i c u l a r l y with reference t o defendant's Motion t o

                             Quash.        B r i e f s and t h e law having been considered, t h e t r i a l c o u r t
                                                                                                                                        II
                             addresses t h e p r i n c i p a l l e g a l i s s u e s r a i s e d ,
                                                                                                                                        I
                                       A s noted by Coleman i n h i s a p p e l l a t e b r i e f       (pp 178, 179) Sec.
                                                                                                                                        I
              28
                     I       95-5-304,        R.C.M,,     1947, o r i g i n a l l y provided t h a t "A court s h a l l


              2g     1       impose t h e sentence of death following conviction of aggravated


               30    01      kidnapping i f it f i n d s t h e victim i s dead a s a r e s u l t of t h e
                                                                                                                                            I
                             c r i m i n a l conduct unless t h e r e a r e m i t i q a t i n q circumstances,"                me
                                                                                                                                            I
   Star
               32       li   l e g i s l a t u r e amended t h i s s e c t i o n by s t r i k i n g t h e p o r t i o n of t h e


M!ler City,
                    t h a t t h e sentencing court need not consider mitigating circum-
                                                                                                              I
                    stances upon conviction of aggravated kidnapping,                    AS pointed out
                                                                                                              I
                    above t h e s t a t u t e a s amended was declared unconstitutional i n

                    t h i s case, but t h e Supreme Court i n remanding f o r resentencing
                                                                                                              I
                    did not s p e c i f i c a l l y declare i f t h e t r i a l court could o r could

                    not impose t h e death penalty.           Coleman argues t h a t since t h e

                    mandatory s t a t u t e was declared unconstitutional, Coleman cannot

                    be sentenced t o death under laws enacted a f t e r h i s conviction,

                          The Supreme Court a t page 1 of i t s opinion i n d i c a t e s t h a t
                                                      1

                    i f t h e death penalty had been imposed under proper procedural

                    safeguards, t h e sentence would have been upheld,                  The Court s t a t e s :

                           "To have a c o n s t i t u t i o n a l l y v a l i d death penalty, t h e United

                    S t a t e s Supreme Court has established c e r t a i p necessary procedures.
                                                                                                              I
                    (citations)      None of these required procedures a r e present i n

                    Montana's death penalty s t a t u t e a s it existed i n 1975, nor were
                                                                                                              I
                    they provided otherwise i n t h i s case,            (emphasis supplied)         Thus

                    defendant's death sentence cannot stand."

                          The emphasized language strongly suggests t h a t i f t h e sentenc
                                                                                                              1
          23   I    ing court had observed procedural requirements declared by recent
                                                                                                              I
          24   11   U S. Supreme Court decisions, t h e death penalty would have been
                     .
                                                                                                                  I
          25        upheld notwithstanding t h a t Montana's mandatory law was uncon-
                                                                                                                  I
                    stitutional,
                                                                                                                  I
          "    I          The l a t e r enactment of Sections 95-2206-6, e t seq, s p e l l i n g
                                                                                                                  I
                    out t h e procedure, should not operate t o take away t h e court's

                    power t o impose t h e death penalty under proper procedural safe-

                    guards,     The death penalty i s an operative f a c t under t h e Montana

                    c o n s t i t u t i o n and Section 95-5-303,   R.C,M,   1947, and a r e not t o be

    Star
                                                             -2A-
Printing CO.
LlUoa Cify.
   hfor.:.
                  and o t h e r s t a t u t e s a r e s u b s t i t u t e d t h e r e f o r ,   A s argued by t h e
                                                                                                                       I
' )I              S t a t e from t h e Dobbert case, t h e circumstance t h a t t h e defendant                        I
     1            i s afforded g r e a t e r procedural p r o t e c t i o n by t h e t r i a l c o u r t ' s           I
5

6

7    1
                  u t i l i z a t i o n of s e c t i o n s 95-2206-6,

                  t h e p r o h i b i t i o n of ex post f a c t o laws.
                                                                              e t seq,, does not f a l l w i t h i n
                                                                                                                       II
8                         I n summary, t h e t r i a l court i n now pronouncing sentence i s

9                 i n a p o s i t i o n t o u t i l i z e t h e i n t e r i m developments i n sentencing

                  procedure a s r e f l e c t e d i n recent U. S. Supreme Court d e c i s i o n s
                                                                                                                       I
         1)       and t h e Montana s t a t u t e s enacted i n response t h e r e t o .                               I
12
                          Both p a r t i e s having been given t h e opportunity t o p l a c e b e f o r
13
                  the Court a l l matters each deemed r e l e v a n t and competent bearing
14
                  upon a determination of appropriate sentences t o be imposed upon
1s

16
                  t h e t h r e e g u i l t y jury v e r d i c t s rendered, and t h e Court having re-

17                viewed a l l matters submitted, t o g e t h e r with t h e evidence produced

                  a t t r i a l , and a f t e r observing t h e defendant's demeanor during t h e

                  t r i a l and while t e s t i f y i n g on h i s own b e h a l f , t h e Court now makes

                  t h e following Findings, Conclusions, Judgment and Order.

                                                              FINDINGS

                          1,     That on J u l y 4, 1974, t h e defendant and Robert Dennis Nan3

                  were on t h e road on Nank's motorcycle on a journey which began a t



    16        1
                  t h e Sheridan Veterans Administration Hospital i n Sheridan, Wyoming,

                  and continued through various towns i n Montana t o Roundup, Montana.
                                                                                                                            I1
                  The two men b u r g l a r i z e d a home i n Roundup, Montana, on J u l y 4,

                  1974, and s t o l e s e v e r a l r i f l e s which
                                                                                                                            I
                 1       were s u b s e q u e n t l y b u r i e d n e a r t h e Roundup A i r p o r t .       L a t e r i n t h e day t h e

                2        two men d e c i d e d t h a t t h e y would rob someone a l o n g U.S. Highway No. 1 2

                3        between Roundup, Montana, and F o r s y t h , Montana, and t h a t t h e y would k i l l

                4        t h e w i t n e s s e s t o d e s t r o y t h e evidence.         With t h e m o t o r c y c l e a l o n g s i d e t h e

                5        r o a d , t h e y began h i t c h h i k i n g .   A c a r occupied by a M r . and M r s . P a u l

                 6       K o e s t e r of F o r s y t h , Montana, stopped, b u t were f r i g h t e n e d and l e f t h u r r i e d l y

                 7       as t h e d e f e n d a n t moved t o o b t a i n e n t r y i n t o t h e v e h i c l e .       A t about 10:OO P.M.

                8        Miss Peggy H a r s t a d of Rosebud, Montana, stopped and o f f e r e d t h e two men a

                9        ride.        They t o o k c o n t r o l of h e r and h e r automobile, t i e d h e r w i t h a r o p e ,

              10         and t o o k h e r t o a remote l o c a t i o n n o r t h of Vananda, Montana, where b o t h

              11         men a t t e m p t e d t o engage s e x u a l i n t e r c o u r s e w i t h o u t c o n s e n t w i t h h e r .     The

              12         v i c t i m was i n m e n s t u r a t i o n a t t h e t i m e .    Holding h e r upon h e r back i n t h e

              13         r e a r of t h e automobile, t h e d e f e n d a n t engaged i n t h e a c t of s e x u a l i n t e r -

              14         c o u r s e w i t h o u t c o n s e n t , w h i l e t h e v i c t i m pleaded w i t h him n o t t o .         They

              15         d r o v e t h r o u g h F o r s y t h t o a secluded s p o t a d j a c e n t t o t h e f r o n t a g e road

              16         j u s t e a s t of F o r s y t h , Montana, where Coleman announced h i s d e c i s i o n t o

              17         k i l l M i s s Harstad.         They t h e n drove back t h r o u g h F o r s y t h t o t h e b r i d g e on

               18        U.S. Highway No. 1 2 o v e r t h e Yellowstone R i v e r t o a n i s o l a t e d a r e a a c r o s s

               19        t h e Yellowstone R i v e r from F o r s y t h n e a r a n abandoned Milwaukee R a i l r o a d

              20         depot.        I n t h i s a r e a Coleman i n i t i a t e d t h e a s s a u l t upon t h e v i c t i m by

              21         swinging h i s m o t o r c y c l e helmet by t h e c h i n s t r a p and c r a s h i n g i t a g a i n s t

              22         t h e v i c t i m ' s head.      Then t h e defendant p l a c e d t h e y e l l o w n y l o n r o p e

              23         around t h e v i c t i m ' s neck and a t t e m p t e d t o s t r a n g l e h e r .           Then b o t h t h e

              24         d e f e n d a n t and Robert Nank c a r r i e d t h e v i c t i m down t o a slough and, t h e

              25         d e f e n d a n t h e l d h e r under t h e water.           The v i c t i m r o s e o u t of t h e w a t e r

              26         b r i e f l y and t h e n b o t h men went i n t o t h e w a t e r and h e l d h e r under u n t i l

              27         she expired.

               28                2.      That t h e S t a t e h a s been u n a b l e t o prove by means of r e c o r d checks

              29         t h a t t h e d e f e n d a n t h a s any o t h e r h i s t o r y of c r i m i n a l a c t i v i t y .   The o n l y

              30         o t h e r c r i m i n a l a c t which a p p e a r s i n t h e t r i a l r e c o r d i n t h i s c a u s e i s t h e        '




              31         a g g r a v a t e d b u r g l a r y of a home i n Roundup, Montana, where c e r t a i n guns were

              32

        STATE
' I B L I S H I N C C<
- 5 L F N A . YON7

                   3
s t o l e n by t h e d e f e n d a n t and Robert Nank on J u l y 4 , 1974.                     By r e a s o n of

t h e f o r e g o i n g , t h e c r e d i t i n m i t i g a t i o n allowed by S e c t i o n 95-2206.9(1)

i s n o t a p p r o p r i a t e t o t h i s defendant.

        3.     That t h e r e i s no e v i d e n c e a p p e a r i n g , e i t h e r i n t h e r e c o r d of

t h e t r i a l held i n t h i s cause o r t h e s p e c i a l sentencing hearing accorded,

s u p p o r t i n g a f i n d i n g of any of t h e c i r c u m s t a n c e s i n m i t i g a t i o n under t h e

o t h e r numbered p a r a g r a p h s of S e c t i o n 95-2206.9,             namely p a r a g r a p h s (2)

t h r o u g h (8).      There i s , l i k e w i s e , no e v i d e n c e of any f a c t s which a r e

o p e r a t i v e i n t h i s c a s e t o m i t i g a t e t h e p e n a l t y i n t h i s cause.        The Court

t h e r e f o r e f i n d s , as f o l l o w s :

        a.     That t h e o f f e n s e s charged and proven i n t h i s cause were n o t

committed w h i l e t h e d e f e n d a n t w a s under t h e i n f l u e n c e of any mental o r

e m o t i o n a l d i s t u r b a n c e ; and

        b.     That i n committing t h e a c t s charged and proved t h e d e f e n d a n t d i d

n o t a c t under extreme d u r e s s o r under t h e s u b s t a n t i a l domination of a n o t h e r

p e r s o n , r a t h e r t h e d e f e n d a n t ' s d e c i s i o n s t o kidnap, r a p e and murder were

t h e r e s u l t of c o n s c i o u s d e l i b e r a t i o n and were h i s independent d e c i s i o n s

a r r i v e d a t d e s p i t e c o n t r a r y arguments advanced by Robert Nank a g a i n s t t h e

murder of t h e v i c t i m ; and

        c.     That t h e c a p a c i t y of t h e defendant t o a p p r e c i a t e t h e c r i m i n a l i t y

of h i s conduct o r t o conform h i s conduct t o t h e r e q u i r e m e n t s of l a w w a s

n o t s u b s t a n t i a l l y impaired; and

        d.     That t h e v i c t i m was n o t a p a r t i c i p a n t i n t h e d e f e n d a n t ' s conduct

and d i d n o t c o n s e n t t o any of t h e a c t s , r a t h e r t h a t s h e r e s i s t e d , and

pleaded w i t h t h e d e f e n d a n t a t v a r i o u s t i m e s throughout t h e c o u r s e of e v e n t s

which r e s u l t e d i n h e r d e a t h ; and

        e.     That t h e d e f e n d a n t was n o t a r e l a t i v e l y minor accomplice, nor was

h i s p a r t i c i p a t i o n i n t h e o f f e n s e s r e l a t i v e l y minor, r a t h e r t h a t t h e d e f e n d a n t

was t h e decisionmaker and t h e dominating i n f l u e n c e i n t h e c r i m i n a l a c t s

committed a g a i n s t t h e v i c t i m ; and

        f.     That t h e d e f e n d a n t a t t h e t i m e of t h e commission of t h e o f f e n s e s

was 27 y e a r s of age.

                                                          -4-
              1           4.     That a t t h e p r i o r s e n t e n c i n g h e a r i n g , t h i s Court imposed t h e

              2   s e n t e n c e of 100 y e a r s f o r t h e crime of d e l i b e r a t e homicide.                   That a t t h e

              3   p r i o r s e n t e n c i n g h e a r i n g t h e Court imposed t h e s e n t e n c e of 40 y e a r s f o r

              4   s e x u a l i n t e r c o u r s e w i t h o u t consent; t h a t t h e s e s e n t e n c e s w e r e ordered t o

              5   run consecutively.

              6                                                     CONCLUSIONS

              7           The Court concludes a s f o l l o w s :

              8           1.     That t h e a g g r a v a t i n g circumstances s e t f o r t h i n S e c t i o n 95-2206.8,

              9   p a r a g r a p h (7) e x i s t s f o r t h e r e a s o n f o l l o w i n g :

             10           That t h e o f f e n s e of aggravated kidnapping was committed by t h e

             II   d e f e n d a n t and i t r e s u l t e d i n t h e d e a t h of t h e v i c t i m , Miss Peggy H a r s t a d .

             12           2.     That none of t h e m i t i g a t i n g c i r c u m s t a n c e s l i s t e d i n S e c t i o n

             13   95-2206.9        R.C.M.     a r e s u f f i c i e n t l y s u b s t a n t i a l t o c a l l f o r leniency.       That

             14   t h e only m i t i g a t i n g circumstance t e c h n i c a l l y present i n t h i s cause i s t h a t

             15   t h e d e f e n d a n t h a s no r e c o r d h i s t o r y of p r i o r c r i m i n a l a c t i v i t y .

             16           From t h e f o r e g o i n g F i n d i n g s and Conclusions, t h e Court now r e n d e r s

             17   its

             18                                               JUDGMENT and ORDER

             19   a s follows:

             20           1.     The d e f e n d a n t , Dewey Eugene Coleman, having been found g u i l t y

             21   of t h e c r i m e of Aggravated Kidnapping by a j u r y on November 1 4 , 1975, and

             22   t h e Court having s p e c i f i c a l l y found beyond a r e a s o n a b l e doubt t h a t t h e

             23   a g g r a v a t i n g c i r c u m s t a n c e s s e t f o r t h i n S e c t i o n 95-2206.8(7)      exist in

             24   r e l a t i o n t o t h i s o f f e n s e , and t h a t no c i r c u m s t a n c e s e x i s t i n m i t i g a t i o n

          25      of t h e p e n a l t y , t h e d e f e n d a n t , Dewey Eugene Coleman, i s h e r e b y s e n t e n c e d

             26   t o d e a t h f o r t h e crime of Aggravated Kidnapping.                           S a i d punishment i s t o

             27   b e i n f l i c t e d by hanging Dewey Eugene Coleman by t h e neck u n t i l he i s dead

             28   between t h e h o u r s of s i x o ' c l o c k A.M.             and s i x o ' c l o c k P.M.       on t h e 3 1 s t

          29      day f o l l o w i n g t h e completion of t h e a u t o m a t i c review of t h i s c a s e by t h e

             30   Montana Supreme Court.                  The e x e c u t i o n of s a i d s e n t e n c e s h a l l b e s u p e r v i s e d

             31   by t h e S h e r i f f of Yellowstone County pursuant t o S e c t i o n 95-2303 R.C.M.                                   1947.

          32

     STATE
OLISHING CO
--EsJA.   MONT

-
.3
       2.     The d e f e n d a n t , Dewey Eugene Coleman, having been found g u i l t y o f

t h e c r i m e of S e x u a l I n t e r c o u r s e Without Consent by a j u r y on November 1 4 ,

1975, t h e d e f e n d a n t , Dewey Eugene Coleman, i s hereby s e n t e n c e d t o b e

imprisoned i n t h e Montana S t a t e P e n i t e n t i a r y f o r a term of 20 y e a r s f o r

t h e c r i m e of S e x u a l I n t e r c o u r s e Without Consent.

        3.    The s e n t e n c e s hereby imposed a r e t o b e s e r v e d c o n s e c u t i v e l y w i t h

t h e s e n t e n c e of 100 y e a r s f o r D e l i b e r a t e Homicide which i s n o t d i s t u r b e d

hereby.       The d e f e n d a n t i s hereby remanded t o t h e custody of t h e Rosebud

County S h e r i f f t o b e t r a n s p o r t e d by him t o t h e Montana S t a t e P e n i t e n t i a r y

t o await t h e f i n a l o r d e r of t h i s Court p e r t a i n i n g t o t h e e x e c u t i o n of

t h e remainder of t h e s e n t e n c e h e r e w i t h imposed.              The d e f e n d a n t i s t o r e c e i v e

c r e d i t f o r t i m e s e r v e d , from t h e d a t e of h i s i n i t i a l i n c a r c e r a t i o n on

t h e s e c h a r g e s on October 1 7 , 1974, t o t h e d a t e of t h i s judgment.

       Dated t h i s     I :day
                          ,              of




                                                       D i s t r i c t Judge
cc:    John S. F o r s y t h e
       C h a r l e s F. Moses
