State v. Coleman
| Decision Date | 19 December 1979 |
| Docket Number | No. 14448,14448 |
| Citation | 36 St.Rep. 2237,605 P.2d 1000,185 Mont. 299 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Dewey Eugene COLEMAN, Defendant and Appellant. |
| Court | Montana Supreme Court |
Mike Greely, Atty. Gen., Helena, Mike McCarter, Asst. Atty. Gen. (argued), Helena, John S. Forsythe, County Atty., Forsyth, for plaintiff and respondent.
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 [185 Mont. 306] 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. Sections 46-18-307, -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, excepting any action upon a petition for rehearing.
Defendant, Dewey Eugene Coleman has been sentenced to death for the crime of aggravated kidnapping under a judgment 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 II, aggravated kidnapping, and count III, 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 95-2206.8(7), 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 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 II, aggravated kidnapping; and to 40 years on count III, 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.
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.
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:
"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)). In the same enactment new death penalty statutes were codified in sections 95-2206.6 through 95-2206.15, R.C.M.1947, now sections 46-18-301 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 MCA 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. II, § 25. Defendant 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. II, § 25, 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 (1977), 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:
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