State v. Coleman
| Citation | 35 St.Rep. 560,177 Mont. 1,579 P.2d 732 |
| Decision Date | 30 May 1978 |
| Docket Number | No. 13296,13296 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Dewey Eugene COLEMAN, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
Moses, Tolliver & Wright, Charles F. Moses argued, Billings, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, John Forsythe argued, County Atty., Forsyth, Lee Overfelt, Billings, for plaintiff and respondent.
Defendant appeals from the final judgment of the District Court, Rosebud County, following a jury trial. Defendant was convicted of deliberate homicide, aggravated kidnapping, and sexual intercourse without consent, inflicting bodily injury.
On July 4, 1974, Peggy Lee Harstad, 21 years of age, disappeared while driving alone from Harlowton to Rosebud, Montana. She was last seen alive around 9:00 p. m. that night at Melstone, Montana. On July 5, 1974, her car was found within a few miles of her home, near Rosebud. On July 7, 1974, a ranch hand discovered a purse and other articles belonging to Peggy Lee Harstad inside a culvert approximately ten miles west of her abandoned car.
In the developing investigation, an elderly couple informed the sheriff of Rosebud County that they had seen a black man and a white man hitchhiking on July 4 between Roundup and Forsyth, Montana at about the time of day Peggy Lee Harstad was driving between those towns. Subsequently, these two men were identified as the defendant, Dewey Eugene Coleman, a black man, and Robert Dennis Nank, a white man.
On July 9, 1974, representatives of the Rosebud County sheriff's office went to the Veteran's Administration Hospital in Sheridan, Wyoming, where these men were, to question them. Defendant and Nank admitted being in the area of Peggy Lee Harstad's disappearance and hitchhiking through Forsyth on the night of July 4th.
On August 6, 1974, the F.B.I. laboratory provided a positive comparison between a fingerprint lift taken from the exterior of the Harstad vehicle and a sample fingerprint of Nank. The F.B.I. also reported a positive comparison between a fingerprint of defendant and a lift taken from a paper found in Harstad's purse. In an interview with F.B.I. agents on August 1, 1974, defendant and Nank admitted seeing the Harstad vehicle abandoned on the road. When he was asked about his fingerprint in the purse, defendant stated that he found a purse along the road they were hitchhiking.
Vacuumings were taken in the Harstad vehicle. These were sent to the F.B.I. laboratory for analysis. They reported, on September 13, 1974, that Negroid head hairs were found in the loose hairs taken from the front seat. In addition, two Negroid pubic hairs were found in the vacuumings.
On August 29, 1974, the decomposed body of Peggy Lee Harstad was found on the north bank of the Yellowstone River, just west of Forsyth, Montana. A forensic pathologist, Dr. John Pfaff, identified the remains as Peggy Lee Harstad by the use of dental charts. Because of the state of decomposition of her remains, Dr. Pfaff could not determine a cause of death.
Since their original questioning in Sheridan, Wyoming, the defendant and Nank had moved to Boise, Idaho, sometime in August. At the request of Rosebud County authorities, the Boise police had kept these men under surveillance.
On October 16, 1974, the then Rosebud County attorney, William Meisburger, and Undersheriff Graham Makin went to Boise, Idaho to further interrogate defendant and Nank. The next day, October 17, 1974, Meisburger and Makin went to see the Boise police. They talked to Detective Brake of the Boise police about bringing the defendant and Nank to the police station for questioning. They informed him of all the evidence they had connecting the defendant and Nank with the death of Peggy Lee Harstad. Detective Brake, since he had been doing some of the surveillance of the two men, knew about most of the evidence except about her body being found. After discussing the case with Meisburger and Makin, Detective Brake and a Detective Crowell went to the apartment where these two men were living. There the defendant and Nank were placed under arrest without a warrant for deliberate homicide in the death of Peggy Lee Harstad.
After their arrest and being placed in custody, arrest warrants and complaints were issued by a justice of the peace for Rosebud County. The warrants and complaint charged defendant and Nank with deliberate homicide.
Upon their arrest, defendant and Nank were advised of their rights. The defendant refused to waive his rights. Nank did waive his rights and, after being in custody for a few hours, gave a full confession. In his confession, he implicated himself and the defendant. He confessed that they kidnapped, raped, and murdered Peggy Lee Harstad. Nank consented to a search of their apartment and car for the murder weapons he said were used in the crime namely, their motorcycle helmets and a rope. A search warrant was obtained and the helmets and rope recovered.
On October 24, 1974, a motion for leave to file an Information in the District Court, Rosebud County, was requested and granted. The Information charged the defendant with three counts: Count I, deliberate homicide; Count II, aggravated kidnapping; and Count III, sexual intercourse without consent, inflicting bodily injury. Defendant plead not guilty to all counts.
On January 30, 1975, defendant moved to suppress all confessions, statements and evidence, illegally seized. A suppression hearing was held. Following the disqualification of the trial judge by the State and the assignment of the case to another judge, a second suppression hearing was held and defendant's motion denied.
On May 7, 1975, the State entered into a written plea bargaining agreement with Robert Nank. Under the terms of the agreement, Nank agreed to plead guilty to deliberate homicide and solicitation to commit sexual intercourse without consent, and further agreed to testify at defendant's trial in return for the dismissal of the aggravated kidnapping charge.
On May 19, 1975, defendant's then 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, defendant insisted on maintaining his innocence. The State refused to accept a guilty plea with defendant maintaining his innocence.
Following a change of defendant's court appointed counsel, a change of venue from Rosebud County to Custer County and finally to Yellowstone County, and other pretrial proceedings and motions, defendant's trial commenced on October 23, 1975, in Yellowstone County.
At trial, Coleman and Nank related opposite statements of fact as to their involvement with Miss Harstad.
Nank testified that he and Coleman were traveling between Roundup and Forsyth on U. S. 12 on his motorcycle when they ran out of gas. They then tried to hitchhike. He said that one car stopped, but the elderly couple refused to give them a ride.
Nank stated that Miss Harstad stopped and gave them a ride. He testified that while driving down the road, he reached over and turned the key on her car off and steered the car to a stop. He stated that he put the girl in the back seat, took her clothes off, and attempted to rape her, but failed, while Coleman drove the car.
Nank testified that Coleman then raped her while he held her foot, testifying that he had a foot fetish. Nank said that they then went down by the Yellowstone River. He carried the girl, now fully clothed, over his shoulder, while Coleman came from behind swinging his silver motorcycle helmet by the chin strap and crashed it against her skull. Nank said that Coleman then took a yellow nylon rope and attempted to strangle her and asked Nank to help, but he did not strangle her. Then they took her down to the river and dumped her into it. As she was not dead, Nank held her head under water while Coleman held her legs.
Nank then testified that they drove her car back toward Forsyth until it ran out of gas. They removed some things from the car and walked into Forsyth. Nank left Coleman in Forsyth, hitchhiked with gas to the motorcycle, and returned to pick up Coleman. They then went to the V. A. Hospital in Sheridan where they stayed until going to Boise.
Defendant Coleman, on the other hand, testified that after the motorcycle ran out of gas and they were refused a ride, Nank suggested that because Coleman was black and there were few blacks in that area, he should go get the gas alone. Coleman testified that while he was sitting off the highway smoking, Nank got a ride.
After several hours, Nank returned in a car and, according to Coleman, Nank was wet, upset and acting strange. Coleman said he was told to get their things off the motorcycle and get in the car. When they both were in the car, Nank advised Coleman that he had killed a girl. The car ran out of gas, and they started to walk. Nank gave Coleman a purse to carry and later told him to get rid of it. Coleman threw the purse into a culvert. They then had breakfast in Forsyth, and Nank left Coleman while he went to get the motorcycle. Coleman also testified that Nank threatened him if he ever disclosed any of these facts.
The trial ended on November 14, 1975. The jury returned guilty verdicts on all three counts. On November 21, 1975, the court sentenced defendant 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). Defendant's motion for a new trial was denied. A stay of execution has been granted pending this appeal.
Defendant raises 41 specifications of error on appeal. We will discuss these alleged errors within the broader context of the...
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