Coleman v. Risley

• Decision Date: 04 May 1983
• Docket Number: No. 82-198,82-198
• Citation: 203 Mont. 237,663 P.2d 1154
• Parties: Dewey E. COLEMAN, Petitioner, v. Henry RISLEY, as Warden of Montana State Prison et al., Respondents.
• Court: Montana Supreme Court

Page 1154

663 P.2d 1154

203 Mont. 237

Dewey E. COLEMAN, Petitioner, v. Henry RISLEY, as Warden of Montana State Prison et al. Respondents.

No. 82-198.

Supreme Court of Montana.

Submitted Dec. 1, 1982.

Decided March 25, 1983.

Rehearing Denied May 4, 1983.

Moses Law Firm, Charles F. Moses argued, Billings, for petitioner.

Mike Greely, Atty. Gen., argued, Helena, John Maynard, Asst. Atty. Gen., argued, Helena, John S. Forsythe, County Atty., argued, Forsyth, for respondents.

WEBER, Justice.

Petitioner Dewey Coleman brings a petition for a Writ of Habeas Corpus as an original proceeding, asking this Court to vacate his death sentence and remand his cause for resentencing as to the aggravated kidnapping conviction by a district court judge other than the judge who has twice sentenced him to death.

The petition is denied.

The sole issue before this Court is whether, because the sentencing judge possessed information unavailable to Coleman and his attorney, Coleman was denied his rights to a fair tribunal, to confront witnesses, and to have the effective assistance of counsel, as guaranteed under both the United States Constitution and the Montana Constitution.

Coleman and Robert D. Nank were traveling together on July 4, 1974, from Roundup toward Forsyth, Montana, on U.S. Highway # 12 when their motorcycle ran out of gas. At approximately the same time, Peggy Lee Harstad disappeared while driving her car on the same highway. On August 29, 1974, her body was discovered just west of Forsyth on the north side of the Yellowstone River.

On October 24, 1974, motions for leave to file Informations in the District Court, Rosebud County, were requested and granted. The Informations charged each of the men with three counts: Count I, deliberate homicide; Count II, aggravated kidnapping; and Count III, sexual intercourse without consent, inflicting bodily injury. Both men pleaded not guilty to all counts.

On May 7, 1975, the State entered into a written plea bargain agreement with Nank. Under the terms of the agreement, Nank agreed to plead guilty to deliberate homicide and to solicitation to commit sexual intercourse without consent, and further On May 19, 1975, Coleman's court appointed counsel made an oral offer of a conditional plea of guilty in return for dismissal of the aggravated kidnapping charge. On May 23, 1975, a written offer of a conditional plea of guilty was presented to the court. In this offer, Coleman insisted on maintaining his innocence. The State refused to accept a guilty plea with Coleman maintaining his innocence.

agreed to testify at Coleman's trial in return for the dismissal of the aggravated kidnapping charge.

On July 2, 1975, a hearing was held on a motion to allow counsel for Coleman to copy Nank's medical records. Defense counsel explained that Coleman was not present because he was in Billings for a psychiatric evaluation. After a discussion regarding the motion, the State inquired as to the purpose of the mental examination. Defense counsel stated that the purpose of the psychiatric examination was to place Coleman under sodium amytal to see if his recollection and memory could be refreshed. Defense counsel then stated:

"That investigation has been conducted and I believe on the basis of that examination, that my client will want to enter a plea of guilty."

Defense counsel further stated:

"Dr. Harr has called me already this morning, and from the information I have received, it appears that my client's memory has been refreshed and there was participation on his part in the crime."

The transcript shows that the court understood that defense counsel was making a proposition similar to that which Mr. Nank had made. Defense counsel pointed out that Coleman then would be subject to a possible maximum penalty of 100 years on the deliberate homicide and 40 years on the sexual assault, with the count of aggravated kidnapping to be dismissed. Discussion continued between the court and all of the counsel with regard to Coleman's willingness to testify. The State expressed concern that Coleman might be testifying in order to avoid the death penalty even if he might not actually remember the crime. No plea bargain agreement was reached during this hearing on July 2 and the hearing was continued to the following day.

At the continued hearing on July 3, 1975, Coleman was present, as were counsel for the parties. Defense counsel then stated that "we would make an offer to plead guilty under the same terms and conditions as had been accepted by the State with regard to Mr. Nank." The key element of that offer was that it would require a dismissal of the charge of aggravated kidnapping with its potential death penalty. Defense counsel also indicated that Mr. Coleman would be willing to take the stand and make a full disclosure of all facts. Defense counsel also pointed out that he had explained to Mr. Coleman that he was waiving his rights against self-incrimination, the right to confront witnesses, the right to require the State to prove every fact beyond a reasonable doubt and his right to testify in his own defense. Mr. Coleman answered, "Yes", when asked if he would be willing to reconduct the sodium amytal examination in the presence of the court and the prosecuting attorneys. Following an extensive discussion between counsel and the court, the State rejected the plea bargain offer. The State pointed out that there were many questions involved in accepting such a plea in view of the past statements and bargaining between the parties, and because the prosecution felt that at least one of the defendants should go to trial.

After rejection of the plea bargain offer, defense counsel stated:

"... if I have to continue in this case and if we have to try this case, then there is no way in the world I can state to the jury that he is innocent of deliberate homicide and that he's innocent of sexual intercourse without consent, and that he will have to agree that he will testify to "...

his involvement in those acts and activities and he will have to admit them, and that we will remove them as issues in the case. That is the only thing I can do. I have told him this position and I have explained it to him as best I can, and I have indicated to him that if he feels that he's dissatisfied with this, or does not feel that it's a proper position, then of course he can indicate it to the Court. Now that is one problem that I have presented and the only resolution I can make of that, is to do it in that fashion. Now I have explained it the same way I have explained it to Mr. Coleman. He realizes, I presume, the chance that the jury can still find him guilty of aggravated kidnapping under all of the circumstances. I have told him my personal feelings on this. Now--however, I want the record to be clear that I feel that because of my moral and professional and ethical decisions, that I should be relieved and even though I am--I may be granted the right by my client and by the Court to proceed with an admission of deliberate homicide and sexual assault without consent, because some other attorney may have different views of how to proceed."

"The only thing that I can do is attack fully the question of whether they can establish aggravated kidnapping, but that becomes a tremendous problem, because I have to start off with the jury by saying my man committed deliberate homicide and that my man committed sexual intercourse, but I deny that he committed aggravated kidnapping. Now personally I think that Nank's statements in his plea to the court admits that he committed aggravated kidnapping. I mean they drove there, took this girl off by force. They drove her around, and there is not one shred of evidence that Coleman was the perpetrator, because there can't be. There were only three people and one is dead, so there is nothing. It becomes a question of Nank against my man, Mr. Coleman."

THE COURT: "Right now you're well representing the defendant just by that type of argument."

As indicated in the above quotation, defense counsel at no time admitted that Mr. Coleman was guilty of the crime of aggravated kidnapping.

The District Court did not relieve defense counsel of his representation of Mr. Coleman. Upon petition, this Court did relieve him of such representation. Approximately two weeks following the hearing, representation of Mr. Coleman was taken over by his present counsel, who represented him at trial and on the previous appeals.

The trial commenced on October 23, 1975, in Yellowstone County and ended on November 14, 1975. A jury returned guilty verdicts on all three counts. On November 21, 1975, the court sentenced Coleman to 100 years on Count I (deliberate homicide); to death by hanging on Count II (aggravated kidnapping); and to 40 years on Count III (sexual intercourse without consent, inflicting bodily injury).

Coleman was resentenced by the same District Judge on July 10, 1978, following the reversal of his sentences on Counts II and III by this Court in State v. Coleman (1978), 177 Mont. 1, 579 P.2d 732. Coleman was resentenced to death by hanging on Count II (aggravated kidnapping) and to 20 years on Count III (sexual intercourse without consent).

The State moved for dismissal of the present Habeas Corpus petition because it does not contain grounds which could not reasonably have been raised in the original or amended petition. Coleman contends the issue could not have been raised previously because the transcript of the July 2 and 3 hearings was not available until February 1982. The State counters that the responsibility of obtaining the entire transcripts rests with the defendant and that he waived further grounds for relief by not raising them previously.

Although this Court does not approve of the dragging out of the appellate process in Coleman bases his argument on the holdings in three cases which he contends are directly on point. He maintains that these...