Full opinion text
DAVID R. THOMPSON, Circuit Judge: Dewey E. Coleman, a Montana state prisoner who has been sentenced to death, appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm. I. FACTS On July 4, 1974, Peggy Lee Harstad, twenty-one years old, disappeared while driving alone from Harlowton to Rosebud, Montana. The next day her car was found within a few miles of her home, near Rosebud. Several days later, a ranch hand discovered her purse inside a culvert about ten miles from her abandoned car. In the investigation which followed, an elderly couple reported that on the evening Har-stad disappeared they had seen a black man and a white man hitchhiking between Roundup and Forsyth, Montana at about the time Harstad had been driving between those towns. The two men were identified as Dewey Eugene Coleman, a black man, and Robert Dennis Nank, a white man. On July 9, 1974, representatives of the Rosebud County sheriffs office questioned Nank. He admitted being in the area where Harstad had last been seen alive, and hitchhiking through Forsyth, Montana on the evening of July 4th. In an interview with FBI agents about one month later, Nank also admitted seeing the Harstad vehicle abandoned on the road and finding a purse along the road where he and Coleman had been hitchhiking. By this time the FBI had reported a positive comparison between Coleman’s fingerprint and a fingerprint which had been lifted from a paper found in Harstad’s purse. Vacuumings taken from the Harstad vehicle revealed Negroid head hairs and two Negroid pubic hairs. On August 29th, almost two months after her disappearance, Harstad’s body was found on the north bank of the Yellowstone River, just west of Forsyth, Montana. Because of decomposition of her remains, a cause of death could not be determined. Nank and Coleman were arrested in Boise, Idaho in October, 1974 and charged with deliberate homicide in the death of Peggy Lee Harstad. During questioning Nank gave a full confession implicating himself and Coleman in the kidnap, rape and murder of Harstad. Coleman denied any involvement in the crimes. The apartment where Nank and Coleman lived was searched, as was their car. Two motorcycle helmets and a rope Nank said had been used in the crimes were recovered. Coleman and Nank were charged with deliberate homicide, aggravated kidnapping, and sexual intercourse without consent. A conviction of aggravated kidnapping carried with it a mandatory death sentence. Mont. Code Ann. § 94-5-304 (1947) (repealed 1977). On May 7, 1975, Nank entered into a written plea agreement with the State. He agreed to plead guilty to deliberate homicide and solicitation to commit sexual intercourse and to testify against Coleman in return for dismissal of the aggravated kidnapping charge; the dismissal of the aggravated kidnapping charge was not to occur until after Nank had testified at Coleman’s trial. Coleman’s counsel entered into plea bargaining discussions. Coleman insisted on maintaining his innocence, however, and was unable to make a plea agreement with the State. On July 2, 1975, a pretrial hearing was held on a motion brought by Coleman’s counsel seeking to obtain a court order authorizing the copying of Nank’s medical records. Coleman was not present at the hearing. His counsel explained that Coleman had been taken to Billings, Montana for a sodium amytal examination to see if he could remember the events of July 4, 1974. During the course of the hearing, Coleman’s counsel stated he wanted to enter into further plea negotiations with the State. The following colloquy occurred: Defense Counsel: I want to enter into further plea bargaining with the State and with the Court.... Also what I have to say today, I have not confirmed with my client, but I believe because of the shortness of time between now and the time of trial, it should be raised_ My client — well, also I want to proceed on the basis that this is plea bargaining and things I should say should not be held against my client at some later time. Is that understood? State’s Attorney: I don’t go for that at all. I think we’re either presenting an argument here. If we’re going to hold a plea bargaining conference, let’s do that later.... The Court: I think that what he’s doing is laying a foundation to bring something up. Now go ahead. Defense Counsel: That’s correct. I’ll go forward. I don’t believe that my statements can be used against my client in any event. The purpose of the psychiatric examination was to place my client under sodium amytal to see if his recollection and memory could be refreshed, because in all communications with me, he could not tell me what happened. He continually asserted his innocence and it presented quite a problem in trying to defend him. That was the purpose, to send him to Dr. Harr to have him placed under sodium amytal. 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. The Court: Without the condition of— Defense Counsel: Without the assertion of innocence. Now these statements I make are based on conversations I had with my client prior to the time he went up for the examination. That if the examination revealed certain things that refreshed his memory and indicated that the story that Nank was telling was in fact true, or substantially true, that then my position would be that we should go back to the Court and offer to enter a plea with the understanding that the death penalty not be imposed, and then if the memory is refreshed and his recollection of events is sustained after the sodium amytal has worn off, that then he would testify fully as to what his extent of participation was in the crime, and to avoid what I thought was the prosecution’s most severe objection, and that is that he was entering a plea and saying he was innocent, and that this would allow him to get out. Now I know that the State indicated before that they thought he should be hung. I don’t know what the State’s position is. Now Mr. Coleman will be returning to Miles City, according to Dr. Harr, sometime around eleven o’clock. I intended to immediately confer with him. Doctor 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. Therefore, my function I believe, is to try to accomplish and make arrangements with the State and with the Court to save my man’s life, and also it presents a personal problem and personal dilemma to me that would mean if we have to continue with the trial with my feelings of what Dr. Harr told me, and that if that’s true, it will be very difficult to continue in the defense and to argue the case. Now that’s a personal dilemma that I have. The Court: That may be a personal dilemma, but it’s an obligation that you’ll have to go through with. So your client now makes the same proposition to the State as Nank has? Defense Counsel: Yes, he would. No agreement or understanding was reached at the July 2nd hearing. When court was convened the next day, Coleman was present. His counsel referred to the sodium amytal examination and stated that Coleman would plead guilty “under the same terms and conditions as has been accepted by the State with regard to Mr. Nank.” The State refused to accept from Coleman the same plea bargain which had been made with Nank. The prosecutor stated he was concerned about Coleman challenging the voluntariness of his plea at a later time. He stated there were circumstances in Coleman’s case which made it significantly different from Nank’s. He stated these included the fact that claims had been made in Coleman’s case that his attorney was incompetent and that a change of venue to avoid prejudice had not been a sufficient change to avoid such prejudice. He also pointed to Coleman’s previous assertion of an insanity defense (which Coleman had later waived), and to the possibly unreliable sodium amytal procedure which had prompted Coleman to offer a guilty plea. When Coleman’s proposed plea bargain was rejected by the state, his counsel requested to be relieved. He stated that although he could defend Coleman on the aggravated kidnapping charge, there was “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.” The trial court denied the motion, but the Montana supreme court subsequently relieved Coleman’s counsel and appointed new counsel to represent him. Coleman’s new counsel took over his representation unaware of the proceedings which had taken place on July 2 and 3. Trial began in October 1975. Coleman and Nank both testified. They had met one another at the Veterans Hospital in Sheridan, Wyoming. Coleman was being treated for depression. Nank had a history of mental illness. They were discharged from the Veterans Hospital and traveled to Montana on Nank’s motorcycle. They ran out of gas between Roundup and Forsyth during the evening hours of July 4, 1974 and decided to hitchhike. From this point on their stories differed. Coleman testified that he and Nank had been unsuccessful in their attempt to hitchhike, but that Nank was able to obtain a ride for himself and headed toward For-syth. Nank returned several hours later driving a car subsequently identified as Harstad’s. He told Coleman he had killed a woman, and asked Coleman to hide a woman’s purse which he had brought back; Coleman complied. Coleman denied any involvement in the death and maintained he did not report Nank to the authorities because he was afraid of retribution from Nank and was afraid he would be implicated in the crime. Nank testified that when the Harstad vehicle stopped, both he and Coleman got into the car. As they proceeded toward Forsyth, Nank turned the ignition key off and maneuvered the vehicle to the side of the road. He tied Harstad’s hands together with a yellow nylon rope, removed her clothing except for her blouse and attempted to have sexual intercourse with her but could not maintain an erection. Coleman then got in the back seat with Harstad and had sexual intercourse with her. Nank testified that thereafter he dressed the victim and they drove to the Yellowstone River. Nank carried Harstad over his shoulder to the side of the river. He put her down, and as they were talking, Coleman came from behind and hit Harstad several times on the head with his motorcycle helmet. Coleman then took the rope from Harstad’s hands and attempted to strangle her. Nank said Coleman asked him to help, but he was unable to do so. Both men then carried Harstad, who was unconscious, to a drainage area near the river where they dumped her body. When Har-stad attempted to get up, Coleman held her feet and Nank held her head under the water until she was drowned. II. PRIOR COURT PROCEEDINGS A jury convicted Coleman of deliberate homicide, aggravated kidnapping, and sexual intercourse without consent, inflicting bodily injury. He was sentenced to one hundred years for deliberate homicide and forty years on the rape charge. He was sentenced to death for aggravated kidnapping under Montana’s mandatory death penalty statute. On appeal, the Montana supreme court held that the mandatory death penalty statute was unconstitutional. State v. Coleman, 177 Mont. 1, 579 P.2d 732, 741-42 (1978) (Coleman I). Coleman’s death sentence was vacated and his case was remanded to the trial court for resentencing. Coleman was then resen-tenced to death in 1978 under a new Montana death penalty statute which had been enacted in 1977. Mont.Code Ann. §§ 95-2206.6 through 95-2206.15 (now codified at Mont.Code Ann. §§ 46-18-301 through 46-18-310; hereinafter cited in precodification version, and reproduced at Appendix). Coleman’s sentence was automatically reviewed by the Montana supreme court. Mont.Code Ann. §§ 95-2206.12 through 95-2206.15. The court upheld his convictions and sentences. State v. Coleman, 185 Mont. 299, 605 P.2d 1000 (1979) (Coleman II), cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1980); Coleman v. Sentencing Review Division of Supreme Court of Montana, 449 U.S. 893, 101 S.Ct. 255, 66 L.Ed.2d 121 (1980) (vacating stay of execution of death sentence and denying certiorari). Thereafter, Coleman filed a petition with the State court for post-conviction relief. His judgment and sentence were once again reviewed and affirmed by the Montana supreme court. Coleman v. State, 633 P.2d 624 (Mont.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982) (Coleman III). A petition for writ of habeas corpus under 28 U.S.C. § 2254 was filed in the United States district court for the district of Montana in November 1981. The State provided Coleman with a list of all transcripts and proceedings that were recorded but not transcribed in the State court. It was at this time that Coleman’s new counsel first learned of the July 2 and July 3, 1975 hearings during which the result of Coleman’s sodium amytal test and plea proposals had been disclosed and his then counsel had requested to be relieved as his attorney. The federal habeas corpus proceeding was stayed to provide Coleman the opportunity to exhaust his State remedies for review of his convictions and death sentence in view of these hearings. The Montana supreme court denied Coleman’s petition for post-conviction relief. Coleman v. Risley, 203 Mont. 237, 663 P.2d 1154 (1983) (Coleman IV). Coleman then filed a motion for an evi-dentiary hearing on his habeas corpus petition in the district court. He sought a hearing on twelve of the thirty-seven issues raised in his petition, and filed a motion for summary judgment on the remaining issues. The State also filed a motion for summary judgment. On August 9, 1985, the district court granted the State’s motion and entered judgment against Coleman. He appeals. Coleman contends: (a) his resentencing under the 1977 death penalty statute violated the ex post facto clause of the Constitution; (b) Montana’s death penalty statute unconstitutionally required him to bear the burden of proof of mitigating factors; (c) his jury panel was selected in an impermis-sibly discretionary manner; (d) his trial, conviction, and death sentence were the result of racial discrimination; and (e) his sentence was imposed in violation of due process of law. III. EX POST FACTO LAW Coleman was convicted and first sentenced to death in 1975 under a mandatory death penalty statute subsequently held to be unconstitutional in 1978 by the Montana supreme court in Coleman I, 177 Mont. 1, 579 P.2d at 741-42. In 1977, the Montana legislature passed a new death penalty statute, the constitutionality of which was upheld in State v. McKenzie, 177 Mont. 280, 581 P.2d 1205, 1228-29 (Mont.1978), vacated on other grounds, 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871 (1979). Coleman was resentenced in 1978 under this new statute. He contends the ex post facto clause of the Constitution was violated when he was resentenced to death under the 1977 statute. To violate the ex post facto clause of the Constitution, a law must be retrospective and it must disadvantage the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); United States v. Crozier, 777 F.2d 1376, 1383 (9th Cir.1985). Furthermore, “[e]ven if a retroactive change in the law is a disadvantage to the criminal defendant, it does not violate the [ex post facto ] clause if the change is procedural rather than substantive.” United States v. McCahill, 765 F.2d 849, 850 (citing Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977)). During Coleman’s trial, Nank testified on cross-examination that on the day Peggy Lee Harstad was murdered, he and Coleman burglarized a home in Roundup, Montana and stole some guns. The sentencing judge considered this circumstance at the time Coleman was resentenced to death under Montana’s amended 1977 death penalty statute. Coleman claims he would not have cross-examined Nank concerning the Roundup burglary had he known this testimony would eventually be used against him at a sentencing hearing. Under the old death penalty statute Nank’s testimony concerning the Roundup burglary would not have had any effect on whether Coleman was sentenced to death. His conviction of aggravated kidnapping mandated a death sentence. He argues that the new sentencing law changed the “rules of the game” to his detriment after his trial and before sentencing. Coleman is correct that Montana’s new sentencing law was enacted after his trial. But the new law did not change the “rules of the game.” Nank’s testimony regarding the Roundup burglary was admitted at Coleman’s trial and was fully admissible at the sentencing hearing under Montana’s new sentencing regime. Section 95-2206.7 of the Montana Code authorizes the sentencing judge to receive “evidence ... as to any matter the court considers relevant to the sentence, ... and any other facts in aggravation or mitigation of the penalty.” Mont.Code Ann. § 95-2206.7. In evaluating mitigating circumstances, the judge considers, among other things, the defendant’s “prior criminal activity.” Id. § 95-2206.9(1). Coleman’s argument that the new law disadvantaged him rests upon the unsubstantiated assumption that the circumstance of the Roundup burglary would not have been brought to the attention of the court at the sentencing hearing, but for Coleman’s cross-examination of Nank at trial. Coleman has provided nothing to support this assumption. See Dob-bert, 432 U.S. at 294, 97 S.Ct. at 2298-99 (discussed infra; rejecting petitioner’s “speculation” that jury would have recommended life imprisonment had prior law still been in effect). Coleman’s counsel suggested at oral argument that Coleman’s trial counsel would have cross-examined Nank differently and scrutinized his testimony about the Roundup burglary more effectively had the new sentencing law been in effect. Given that Nank and Coleman testified as to conflicting accounts of the events the day the murder occurred, the suggestion that Coleman’s attorney had no motive to scrutinize Nank’s recollection of the burglary which Nank said occurred on the day of the murder is unconvincing. Further, Coleman has not shown he was denied the opportunity to reexamine Nank at the sentencing hearing. See our discussion infra section VII, 3b. However, even if we were to accept Coleman’s assumption, the Supreme Court’s holding in Dobbert dictates rejection of his ex post facto claim. In Dobbert, Dobbert committed crimes when Florida had an unconstitutional death penalty statute which punished a defendant with death unless the jury recommended mercy. 432 U.S. at 288, 97 S.Ct. at 2296. By the time Dobbert was brought to trial, Florida had enacted a constitutional statute; the new law removed the presumptive death sentence, but permitted the judge to override the jury’s recommendation of leniency. Id. at 290-91, 97 S.Ct. at 2297. At Dobbert’s trial, the jury by a ten-to-two majority found sufficient mitigating circumstances to outweigh any aggravating circumstances and returned an advisory verdict recommending life imprisonment. Id. at 287, 97 S.Ct. at 2295. The trial judge, however, overturned this recommendation and sentenced Dobbert to death. Dobbert argued that the new law violated the ex post facto clause because (among other things) under the former death statute the jury’s recommendation of life would not have been subject to the trial judge’s nullification. The Court rejected this argument on two independent grounds, both present here: the new Florida law was procedural, and it was ameliorative. Id. at 292 & n. 6, 97 S.Ct. at 2298 & n. 6. A. Procedural Change The Court in Dobbert began its analysis by reiterating the “well settled” principle that the ex post facto clause does not “ ‘limit the legislative control of remedies and modes of procedure which do not affect matters of substance.’ ” Id. at 293, 97 S.Ct. at 2298 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)). As a corollary to this principle, the Court noted “[e]ven though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” Id. The Court discussed two cases to support this proposition. Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). In Thompson, the Missouri supreme court reversed the defendant’s conviction because of the inadmissibility of certain evidence in a case tried on circumstantial evidence. Prior to his retrial, the law was changed to make the evidence admissible and the defendant was again convicted. The Thompson Court held that the change which rendered the incriminating evidence admissible was procedural and did not violate the ex post facto clause because it “did not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the murder of which he was found guilty.” 171 U.S. at 387, 18 S.Ct. at 924. Similarly in Hopt, the Court held that a statute removing disqualification of certain classes of people who could be witnesses was procedural and hence did not violate the ex post facto clause. 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262. See also Beazell, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (passim; new law on joint trial procedural). The Court in Dobbert concluded on the basis of the foregoing authorities that the change in Florida’s sentencing law was procedural and therefore was not ex post facto. 432 U.S. at 293-94, 97 S.Ct. at 2298. In the present case, as in Dobbert, Thompson and Hopt, Montana’s new sentencing statute is procedural. The statute “simply altered the methods employed in determining whether the death penalty was to be imposed_”, Dobbert, 432 U.S. at 293-94, 97 S.Ct. at 2298, and did not change the punishment prescribed, or the quantity or degree of proof necessary to establish guilt. Id. (citing Hopt, 110 U.S. at 589-90, 4 S.Ct. at 210). See also McCahill, 765 F.2d at 850-51 (law affecting bail pending appeal procedural); Knapp v. Cardwell, 667 F.2d 1253, 1262-63 (9th Cir.) (Arizona death penalty law enlarging ability to introduce mitigating factors held procedural), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982); Ward v. California, 269 F.2d 906 (9th Cir.1959) (passim) (state law allowing introduction of evidence of defendant’s background and history and of any facts in aggravation or mitigation of death penalty was procedural; one judge denial of certificate of probable cause, per Pope, J.). Even if Montana’s new statute disadvantaged Coleman, therefore, it is procedural and not ex post facto. B. Ameliorative Change The Court in Dobbert further held that Florida’s new death penalty statute, viewed in to to, was ameliorative. The former statute established a presumption in favor of the death penalty and was unconstitutional. 432 U.S. at 294-97, 97 S.Ct. at 2298-2300. The new Florida law, in contrast, established extensive procedural protections and had been upheld in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Here, Coleman was first sentenced under a mandatory death penalty statute which was unconstitutional. Thereafter, he was sentenced under a new statute which established extensive procedural safeguards (Mont.Code Ann. §§ 95-2206.6 through 95-2206.15) and is constitutional. Coleman II, 185 Mont. 299, 605 P.2d 1016-17 (and discussion infra section IV). Coleman attempts to distinguish Dobbert by arguing that whereas Dobbert was tried, convicted and sentenced under a constitutional statute, he was tried and convicted under an unconstitutional mandatory death penalty statute, but sentenced under a constitutional statute. Relying on Dob-bert, we rejected an identical ex post facto challenge to the Arizona death penalty statute in Knapp, 667 F.2d at 1262-63. In Knapp, several of the appellants were tried, convicted and sentenced under an Arizona death penalty statute later declared unconstitutional. Thereafter, their sentences were vacated and they were re-sentenced to death under a constitutional statute. Id. at 1257-58. We rejected appellants’ attempt to distinguish Dobbert as a “distinction without ex post facto implications,” id. at 1262, because the new statute was “both procedural and ameliorative.” Id. at 1263. The effect of the new Arizona statute, like the new Montana statute, was to “enlarge the ability of defendants to introduce mitigating circumstances at sentencing.” Id. Thus, “it ‘neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided greater punishment, nor changed the proof necessary to convict.’ ” Id. (citation omitted). C. The Review Process Coleman also argues that the new statute violated the ex post facto clause because it changed the process by which a sentence of death was reviewed in Montana. Under Montana’s death penalty statute in force at the time Coleman committed the acts of which he was convicted, and at the time he was tried and first sentenced to death, he had a statutory right to have his sentence reviewed by a Sentence Review Division. Mont.Code Ann. §§ 95-2502, 2211 (amended 1977). This review was designed to determine the appropriateness of the sentence with respect to the individual offender and particular offense, McKenzie, 171 Mont. 278, 557 P.2d at 1029, and gave a convicted person the “right to have his sentence reviewed for equity, disparity, or consideration of justice.” State ex rel. Greely v. District Court, 180 Mont. 317, 590 P.2d 1104, 1110 (1979). The new statute abolished review of death sentences by the Sentence Review Division and replaced it with automatic review by the Montana supreme court. Coleman II, 185 Mont. 299, 605 P.2d at 1006; Mont.Code Ann. §§ 95-2206.12 through 95-2206.15. Under the new law, the State supreme court reviews a death sentence to determine (1) whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) whether the evidence supports the sentencing judge’s findings of the existence or nonexistence of aggravating and mitigating circumstances listed in the new statute; and (3) whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Id. § 95-2206.15. Coleman contends this is a substantive change because the Montana supreme court’s review is limited, whereas the review commission had wide discretion to reverse a death sentence “for equity, disparity, or consideration of justice.” This argument proceeds on the false premise that the Montana supreme court’s review is “limited.” It also overlooks the fact that while nebulous considerations of “equity” and “justice” could have operated to a defendant’s advantage in reversing a death sentence under the old law, those vague terms could just as easily have worked to his disadvantage in upholding a death sentence arbitrarily imposed. See Dobbert, 432 U.S. at 294, 97 S.Ct. at 2299 (finality of jury determination of life or death under old law could operate equally to defendant’s advantage or disadvantage; change in law to permit review by court not ex post facto). Moreover, the Montana supreme court’s review is not “limited” to a restricted list of mitigating circumstances. The court reviews a death sentence to determine whether the evidence supports the sentencing judge’s findings of the existence or nonexistence of aggravating and mitigating circumstances specified in Mont.Code Ann. §§ 95-2206.8 and 92-2206.9. There is, in addition, a final all-encompassing subsection (8) that requires consideration of “[a]ny other fact ... in mitigation of the penalty.” Id. § 95-2206.9(8). While this final aspect of the court’s review is focused on facts which were presented to the sentencing judge, the Montana supreme court makes an additional independent review of the case to determine whether the sentence was imposed under influence of passion, prejudice, or other arbitrary factors, id. § 95-2206.15(1), and whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Id. § 95-2206.15(3). These review procedures, coupled with the review of mitigating factors, provide at least the same, if not greater, breadth of review as existed under the former statute, and provide a defendant with the added protection that his sentence review will not be limited to the potentially arbitrary application of a reviewing court’s notions of “equity” and “justice.” We conclude, as did the district court and the Montana courts, that no ex post facto violation occurred by the application of Montana’s 1977 death penalty statutes to Coleman in imposing the death sentence upon him. IV. BURDEN OF BRINGING FORTH EVIDENCE IN MITIGATION In Fitzpatrick v. State, 638 P.2d 1002 (Mont.1981), the Montana supreme court held that Montana’s death penalty statute did not impose upon the State the burden of proving the nonexistence of mitigating circumstances, but rather, placed the burden on the defendant “to bring forth the evidence pertinent to the question of mitigation.” Id. at 1013. The court stated that “[t]his statute undoubtedly places the burden on the defendant to show that his life should be spared, but we find this to be constitutionally permissible.” Id. (discussing Coleman II, 185 Mont. 299, 605 P.2d 1000 (1979), and State v. Stewart, 175 Mont. 286, 573 P.2d 1138, 1146 (1977)). Coleman argues that "[b]y requiring the defendant to bear the burden of establishing the presence of mitigating circumstances, and by requiring the sentencing authority to weigh the ‘substantiality’ of the mitigating circumstances, the Montana statute prevents the kind of individualized attention to the appropriateness of the death sentence that the Constitution demands.” To resolve Coleman’s contention, we must examine two lines of Supreme Court authority which have intersected only once before in this court. See Harris v. Pulley, 692 F.2d 1189, 1194-95 (9th Cir.1982) (involving state death penalty statute relieving state from burden of proving non-existence of mitigating factors beyond a reasonable doubt), reversed on other grounds, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). These are cases involving the facial adequacy of a state’s death penalty statute as measured by the eighth and fourteenth amendments, see, e.g., Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and cases involving the allocation of the burden of proof in establishing guilt, see, e.g., In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A. Facial Adequacy of Statute In Gregg, a plurality of the Court stated that the constitutional concerns expressed in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) — that a court not act in an arbitrary or capricious manner — are best satisfied “by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.” 428 U.S. at 195, 96 S.Ct. at 2935. The Montana death penalty statute provides for a bifurcated sentencing procedure conducted by the judge who presided at the trial or before whom the guilty plea was entered. Mont.Code Ann. § 95-2206.6. The defendant may present any probative evidence regarding aggravating or mitigating circumstances. Id. § 95-2206.7. The Montana statute also satisfies the general criteria established in Gregg, Proffitt, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), for constitutional state death penalty statutes: the statute requires the sentencing judge to find at least one aggravating circumstance, Mont.Code Ann. § 95-2206.10; the judge must consider mitigating circumstances and must find that no mitigating circumstance is sufficiently substantial to call for leniency, id. §§ 95-2206.7, 95-2206.9 and 95-2206.10; and the defendant receives prompt and extensive judicial review, id. § 95-2206.10 (and discussion supra). See, e.g., Spaziano v. Florida, 468 U.S. 447, 466, 104 S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984) (upholding similar statute). That the Montana statute does not require the State to prove the absence of mitigating circumstances, and permits the trial judge to weigh and balance mitigating and aggravating circumstances, does not violate the guidelines established in these cases. See Proffitt, 428 U.S. at 257-58, 96 S.Ct. at 2969 (upholding statute that did not impose a burden on state and permitted sentencing authority to balance factors in mitigation and aggravation); Jurek, 428 U.S. at 276, 96 S.Ct. at 2958 (allowing defendant to bring forth evidence on mitigation, but imposing no such burden on state); Harris, 692 F.2d at 1195 (interpreting Proffitt in similar fashion); accord McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 79 (1986) (same). B. Allocation of Burden of Proof The Supreme Court’s pronouncements on the proper allocation of the burden of proof in criminal cases do not alter this conclusion. In Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the Court held that due process prevents conviction except upon proof beyond a reasonable doubt of every fact or element of the crime charged. Id. at 364, 90 S.Ct. at 1072. See also Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Winship and Mullaney emphasized society’s interest in the reliability of jury verdicts: The requirement of proof beyond a reasonable doubt has [a] vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. ... 421 U.S. at 699-700, 95 S.Ct. at 1890 (quoting Winship, 397 U.S. at 363, 90 S.Ct. at 1072); see also Winship, 397 U.S. at 372, 90 S.Ct. at 1076- 77 (Harlin, J. concurring). In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Court refined the principles established in Winship and Mullaney. There, appellant was charged with second-degree murder which, under New York law, contained only two elements: intent to cause death; and causing death. Id. at 198, 97 S.Ct. at 2321. New York permitted the defendant to raise as an affirmative defense the mitigating circumstance of acting under extreme emotional disturbance, but the jury was instructed that the defendant bore the burden of proving the defense by a preponderance of evidence. Id. at 200, 97 S.Ct. at 2322. Appellant argued that placing the burden on a defendant to prove “mitigating factors” violated Winship and Mullaney. Specifically, he argued that Mullaney’s “holding ... is that the State may not permit the blameworthiness of an act or the severity of the punishment authorized ... to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact ... beyond a reasonable doubt.” Id. at 214, 97 S.Ct. at 2329. The Court held, however, that Mullaney and Winship only required the State to prove each element of the crime for which the defendant is charged: Mullaney surely held that a State must prove every ingredient of an offense beyond a reasonable doubt, and that it may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense. This is true even though the State’s practice, as in Maine, had been traditionally to the contrary. Such shifting of the burden of persuasion with respect to a fact which the state deems so important that it must be either proved or presumed is impermissible under the Due Process Clause. Id. at 215, 97 S.Ct. at 2329 (emphasis added). Winship, Mullaney and Patterson teach that due process “requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.” Patterson, 432 U.S. at 210, 97 S.Ct. at 2327. See also McMillan, 106 S.Ct. at 2416. Under Montana law, circumstances affecting mitigation are not facts or elements of the crime for which a defendant is charged; rather, they are facts weighed by the sentencing judge after the defendant has been convicted. MontCode Ann. § 95-2206.6. See, e.g., McMillan, 106 S.Ct. at 2417 (noting this fundamental distinction); id. at 2420 & n. 8 (discussing Proffitt); Patterson, 432 U.S. at 226-27, 97 S.Ct. at 2335 (Powell, J., dissenting); Foster v. Strickland, 707 F.2d 1339, 1345 (11th Cir.1983), cert. denied, 466 U.S. 983, 104 S.Ct. 3564, 82 L.Ed.2d 865 (1984); Ford v. Strickland, 696 F.2d 804, 817-18 (11th Cir.) (en banc) (per curiam) (due process not violated when sentencing authority is permitted to weigh aggravating and mitigating circumstances after state has proven aggravating circumstances), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983); Andrews v. Shulsen, 600 F.Supp. 408, 423 (D.Utah 1984); Richmond v. Cardwell, 450 F.Supp. 519, 524-25 (D.Ariz.1978), later proceeding, Richmond v. Ricketts, 774 F.2d 957 (9th Cir.1985). Accord Harris, 692 F.2d at 1195. Nor under Montana law is the existence of mitigating circumstances a fact which must be “proved or presumed” in obtaining a conviction or even in imposing sentencing. Patterson, 432 U.S. at 215, 97 S.Ct. at 2329. Montana only requires the sentencing judge to find one aggravating circumstance, MontCode Ann. § 95-2206.10, and then to consider mitigating circumstances. The statute comports with the general standards enunciated in Gregg, Proffitt, Jurek, and Lockett and does not transgress the specific limitations established in Win-ship, Mullaney, and Patterson. Finally, in Patterson and recently in McMillan, 106 S.Ct. 2411, the Court has recognized that due process may limit a state’s authority to define elements or facts necessary for a crime. Id. at 2416 (citing Patterson, 432 U.S. at 211 n. 12, 97 S.Ct. at 2327 n. 12). See generally McGautha v. California, 402 U.S. 183, 206 n. 16, 91 S.Ct. 1454, 1466-67 n. 16, 28 L.Ed.2d 711 (1971) (noting that aggravating circumstances could have been part of offense but instead were used as post-conviction enhancement). Several factors convince us that due process does not require Montana to disprove the existence of mitigating circumstances in order to impose a death sentence. First, as noted, the Court has approved of several death penalty statutes imposing no such burden on the state. See, e.g., Jurek, 428 U.S. at 276, 96 S.Ct. at 2958. Second, the Montana death penalty statute establishes no presumptions and does not relieve the State of its burden of proving the defendant’s underlying guilt. See McMillan, 106 S.Ct. at 2417. Third, mitigating circumstances as defined under Montana’s death penalty statute permit the sentencing authority to exercise leniency. See Patterson, 432 U.S. at 203 n. 9, 97 5.Ct. at 2323-24 n. 9 (“the Due Process Clause did not invalidate every instance of burdening the defendant with proving an exculpatory fact”). They do not increase the punishment. Id. Compare McMillan, 106 S.Ct. 2411 (rejecting due process argument that state definition of element in aggravation in sentencing defendant must be proven beyond a reasonable doubt); id. at 2421-26 (Stevens, J., dissenting). We therefore reject Coleman’s argument regarding the allocation of the burden under Montana’s death penalty statute and the trial court’s weighing and balancing of mitigating and aggravating circumstances. V. JURY SELECTION Following a challenge by the defendant three days before trial, the trial court dismissed the first jury panel and ordered a second panel drawn. Each name on the jury list was assigned a number, the numbers were placed in a box, and 200 were drawn. The court then directed the court clerk to obtain a panel of sixty jurors by telephoning persons drawn from the box to see if they would be available to serve on a jury within the next three days. Sixty-one of the prospective jurors indicated they would be available and sixty appeared for Coleman’s trial. Coleman I, 177 Mont. 1, 579 P.2d at 746-47. It was from this panel that Coleman’s trial jury was chosen. Coleman contends that the sixty persons making up his jury panel were selected in an impermissibly discretionary manner. He alleges that potential jurors were asked whether they could appear for his trial and were allowed to excuse themselves on grounds not revealed to him. He further alleges that the system by which his panel of sixty potential jurors was selected had the disproportionate effect of placing mainly white, affluent residents from the west side of Billings on the panel. He argues that this system was controlled, not random, and resembled the so-called “key man” system of jury selection. Coleman contends that he is entitled to an evidentiary hearing on this issue. To obtain an evidentiary hearing, Coleman “must show that (1) he has alleged facts which, if proved, would entitle him to relief, and (2) an evidentiary hearing is required to establish the truth of his allegations.” Harris, 692 F.2d at 1197; see also Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). A. Lack of Showing of Distinctive Group Trial by a jury of one’s peers contemplates that an impartial jury will be drawn from a fair cross-section of the community. Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946). The sixth amendment does not guarantee a randomly selected jury, United States v. Wellington, 754 F.2d 1457, 1468 (9th Cir.), cert. denied sub nom., Utz v. United States, 474 U.S. 1032, 106 S.Ct. 592, 593, 88 L.Ed.2d 573 (1985), nor does it require that the jury contain representatives from every group in the community. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1764-65, 90 L.Ed.2d 137 (1986); Thiel, 328 U.S. at 220, 66 S.Ct. at 985. A fair cross-section challenge to the constitutionality of the jury venire requires a showing: (1) That the group alleged to be excluded is a ‘distinctive’ group in the community; (2) That the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) That this underrepresentation is due to systematic exclusion of the group in the jury-selection process. United States v. Miller, 771 F.2d 1219, 1228 (9th Cir.1985) (quoting Duren, 439 U.S. 357 at 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579). Coleman contends that as a result of the jury selection process, persons from the lower socioeconomic areas of Billings were excluded from his panel of prospective jurors. He has not alleged any facts, however, from which it could be concluded that persons from the lower socioeconomic areas of Billings, Montana formed a distinctive group in the community, or that if such a group existed it consisted of a sufficient number of persons so that its systematic exclusion from jury panels would support a fair cross-section challenge under the sixth amendment. Duren, 439 U.S. at 364, 99 S.Ct. at 668; see also Taylor v. Louisiana, 419 U.S. 522, 531, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975). See United States v. Kleifgen, 557 F.2d 1293 (9th Cir.1977) (passim); United States v. Potter, 552 F.2d 901, 904-05 (9th Cir.1977). Having failed to demonstrate the existence of a “distinctive” group, Coleman’s claims that such a group was underrepresented in jury venires or was systematically excluded in the jury selection process also fail. B. Method of Selection of Available Jurors Coleman challenges the clerk’s dismissal of 139 of the 200 potential jurors drawn from the box. There is nothing in the record, however, to suggest that the jurors who were excused by the clerk were excused for any reason other than their inability to serve in a jury trial which was to commence in three days. Coleman I, 177 Mont. 1, 579 P.2d at 746. Coleman does not contend, nor does the record reveal, that the 200 names from which the 60 members of his panel were chosen do not represent a fair cross-section of the community. The method of jury selection in Coleman’s case was similar to that which occurred in United States v. Anderson, 509 F.2d 312 (D.C.Cir.1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 672 (1975). There, 200 to 300 jurors were selected for jury service. The defendant did not contend that these jurors were not representative of a fair cross-section of the community. The jurors were told that the trial would be lengthy and the court asked how many jurors would be able to serve. Sixty-eight jurors indicated they would be available, and sixty of these were selected for the panel. Id. at 321. On appeal the defendant contended the jurors were composed of volunteers and thus did not represent a cross-section of the community. Id. In rejecting this contention, the court concluded that the underlying complement of jurors represented a fair cross-section of the community and “[njeither the panel nor the trial jury became any less so by reason of the technique the judge employed.” Id. at 322. The court went on to state, “the judge did not exclude anyone or any cognizable group. The sole criterion he employed was ability to serve longer; the panel from which the jury was drawn was distinguished only by that quality.” Id.; see also United States v. Branscome, 682 F.2d 484, 485 (4th Cir.1982); United States v. Kennedy, 548 F.2d 608, 611 (5th Cir.), reh’g denied, 554 F.2d 476 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977). Coleman did not present any affidavit or other evidence to suggest jurors were dismissed for any reason other than unavailability. His challenge to the sixty-person jury panel “consists exclusively of counsel’s statements, unsworn and unsupported by any proof or offer of proof.’-’ Frazier v. United States, 335 U.S. 497, 503, 69 S.Ct. 201, 205, 93 L.Ed. 187 (1948). These “con-clusory allegations do not provide a sufficient basis to obtain a hearing in federal court.” Harris, 692 F.2d at 1199. Finally, Coleman argues in his reply brief that the trial judge improperly disqualified two jurors because of their opposition to the death penalty. He has failed to present any showing that would justify an evidentiary hearing on this issue. MagGio v. Williams, 464 U.S. 46, 50, 104 S.Ct. 311, 314, 78 L.Ed.2d 43 (1983) (per curiam). VI. RACIAL DISCRIMINATION Coleman contends he was tried, convicted, and sentenced to death as a result of pervasive racial discrimination. He points to the fact that Nank, a white man, was permitted to plead guilty to crimes which did not carry the death penalty, whereas Coleman, a black, was denied the same bargain. He also points to the trial judge’s reference to him as a “black boy.” He contends he was entitled to a hearing on these contentions. A. The Plea Bargain The State permitted Nank to plead guilty to charges which did not carry the death penalty because he admitted his involvement in Harstad’s murder and assisted the State in its investigation and prosecution of Coleman. On the other hand, Coleman maintained his innocence. When he first offered to plead guilty to non-capital charges, he insisted on maintaining his innocence as a condition of such a plea. The State was under no duty to accept Coleman’s offer. The prosecution may refuse to bargain altogether, or cut off negotiations at any time. United States v. Herrera, 640 F.2d 958, 962 (9th Cir.1981) (prosecution of defendant on original indictment upheld notwithstanding prosecution’s acceptance of co-defendant's plea bargain). When Coleman finally offered to accept the same deal accepted by Nank, he did so only after he had undergone a sodium amy-tal procedure which the State regarded as questionable. Before then, Coleman’s former counsel had claimed he was ineffective due to his lack of experience. Coleman had also contended that a change of venue had not been sufficient to eliminate prejudice against him. The State was concerned about the voluntariness of the plea. Moreover, the State already had Nank’s agreement to testify against Coleman. Nank had pursued precisely the course which Justice Blackmun suggested should have been pursued by one of the defendants in Burger v. Kemp, — U.S. —, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987) (BlackMun, J., dissenting). There, in commenting that the defendant’s lawyer had been remiss in not offering the defendant's testimony against his co-defendant in exchange for a life sentence, Justice Blackmun stated: “[T]he prosecutor might have decided that ... he would permit [the defendant] to plead to a life sentence in exchange for his testimony against [his co-defendant] and pursue the death sentence against [the co-defendant].” Id. at 3133 n. 12. Here, this is what the prosecutor did. He allowed Nank to plead to a life sentence in exchange for his testimony against Coleman, and pursued the death sentence against Coleman. The record reveals no evidence of racial prejudice. Despite the absence of this evidence, the dissent insists “[t]he key inquiry here must be as to the prosecutor’s motives in repeatedly and vigorously refusing to accept, or even consider accepting, Coleman's guilty plea_” (Reinhardt, J. dissent at page 13). However, as the Supreme Court stated in McCleskey v. Kemp, — U.S. —, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), “[T]he policy considerations behind a prosecutor’s traditionally ‘wide discretion’ suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, often years after they were made.” Id. at 1768 (footnotes and citations omitted). The Court further stated, “Our refusal to require that the prosecutor provide an explanation for his decisions ... is completely consistent with this Court’s longstanding precedents that hold that a prosecutor need not explain his decisions unless the criminal defendant presents a prima facie case of unconstitutional conduct with respect to his case.” Id. at 1769 n. 18 (citations omitted). Coleman has not set forth any facts which would support a prima facie case of unconstitutional conduct. As the dissent notes, Coleman makes “a concrete claim of unequal treatment on the basis of race.” (Reinhardt, J. dissent at page 468). This may be so, but he presents no facts to support the claim. We conclude that the State had no obligation to accept Coleman’s plea bargain offer. See Hererra, 640 F.2d at 962; accord United States v. Pleasant, 730 F.2d 657, 663-65 (11th Cir.) (involving offer made and withdrawn when not initially accepted), cert. denied, 469 U.S. 869, 105 S.Ct. 216, 83 L.Ed.2d 146 (1984). Neither the State’s acceptance of Nank’s plea offer nor Coleman’s death sentence alters this analysis. See Brooks v. Estelle, 697 F.2d 586, 588 (5th Cir.), stay denied, 459 U.S. 1061, 103 S.Ct. 1490, 74 L.Ed.2d 643 (1982); McMillin v. United States, 583 F.2d 1061, 1063 (8th Cir.), cert. denied, 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 709 (1978). B. “Black Boy ” Reference Coleman points to the trial court’s reference to him as a “black boy” to support his allegation of racial discrimination. The use of the term in reference to Coleman was first made during the trial by Coleman’s own counsel during cross-examination of a witness. The court’s use of the phrase occurred in chambers in ruling on a motion for dismissal or judgment of acquittal at the close of the government’s case. At that point in the proceedings the following colloquy occurred: Prosecution: May the record show that the prosecution resists the motion. The Court: Well, I treat this as a real serious motion. Prosecution: In what regard? The Court: Well, I’m not going to grant the motion, but I say it has some merit. Prosecution: I frankly don’t think it has any. We could have gotten to the jury on circumstantial evidence alone, Your Honor, and I’m confident of that. The Court: Well, all you’ve shown is the opportunity for this black boy to do it. You’ve shown plenty of opportunity. We have expressed concern about the influence race may have in the imposition of the death penalty. Harris, 692 F.2d at 1198 n. 4. “The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence.” Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 1688, 90 L.Ed.2d 27 (1986). We do not agree with the State that the court’s reference to Coleman as a “black boy” was “charitable;” however, when placed in context and viewed in light of the entire trial transcript, it does not establish Coleman’s claim of racial discrimination. See United States v. Herbert, 698 F.2d 981, 984 (9th Cir.) (defendant must show prejudice stemming from comment), cert. denied, 464 U.S. 821, 104 S.Ct. 87, 78 L.Ed.2d 95 (1983); United States v. Price, 623 F.2d 587, 592-93 (9th Cir.) (same), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); James v. State, 270 Ark. 596, 605 S.W.2d 448, 451 (1980) (in chambers reference to defendant as “boy” not prejudicial); People v. McGowen, 269 Cal.App.2d 740, 743, 75 Cal.Rptr. 53, 54-55 (1969) (no prejudice from unobjected to comment). Compare Berry v. United States, 283 F.2d 465, 467 (8th Cir.1960) (repeated racial comments made in jury’s presence held prejudicial), cert. denied, 364 U.S. 934, 81 S.Ct. 380, 5 L.Ed.2d 366 (1961); 34 A.L.R.3d 1313, 1320, 1328-30 & n. 19 (1970 & Supp.1986) (discussing cases). Cf. Harris, 692 F.2d at 1197 (evidentiary hearing required when facts in dispute and if proved entitled defendant to relief). VII. SENTENCING HEARING Coleman argues that the sentencing hearings and the trial court’s “FINDINGS, CONCLUSIONS, JUDGMENT AND ORDER” (“Findings”) dated July 10, 1978, violated due process. Before evaluating his contentions, we examine these proceedings and the court’s Findings. A. The June Uth Hearing By its decision in Coleman I, the Montana supreme court affirmed Coleman’s convictions on all counts. His sentence to serve one hundred years on Count I for deliberate homicide was affirmed. His death sentence for aggravated kidnapping and his sentence to serve forty years for sexual intercourse without consent, inflicting bodily injury, were vacated. The case was remanded to the trial court for resen-tencing. The remand was received by the trial court on June 2, 1978. On that day the judge who had previously sentenced Coleman to death notified counsel of record that Coleman’s sentencing hearing would be held on June 14, 1978, and that the hearing would be conducted “in accordance with section 95-2206.06 through 95-2206.-11, RCM, as amended.” At the beginning of the June 14th hearing, the court stated that it “had set down for hearing today the matter of mitigation of punishment, intending to reserve for a subsequent date the sentencing.” Defense counsel had filed a motion that day challenging the constitutionality of applying the newly amended 1977 death penalty statutes to Coleman’s case. The State had not responded to this motion. The court stated: “Of course the first question that arises in the Court’s mind, is should the Court [proceed] with the hearing at this time on the matter of mitigation, and of course on one count the Court feels that it may as well proceed, but I’d like to hear from you [defense counsel].” Coleman’s counsel suggested that the State might want an opportunity to respond to his motion, and stated: I would suggest that the Court continue, and I’m not making this in the form of a formal motion, but I am suggesting that the Court continue this matter in regard to sentencing.... In addition, Your Honor, and as another point which has some bearing upon the Court's determination as to how to proceed, is that we have to present here at this time, no mitigating factors at all. It would be a matter of simply argument. There is a pre-sentence investigation report. I take the view that the situation is primarily one of law, to be resolved as to how the Court should proceed, and then I take the view that unless [the State] wishes to present witnesses, that at the time of sentencing is just simply a statement by [the State’s attorney] pointing out what he thinks relevant and a statement pointing out what I think is relevant, and the Court decides if that’s the way we are to proceed. The court stated: Well, the Court has two matters to sentence on, and there is always a possibility that after the Court has considered [defense counsel’s] brief, it might rule favorably on [defense counsel’s] motion, and in that event there would be no necessity for the Court to make any finding [of aggravating or mitigating circumstances] or anything else under the — under the existing statute.... So I think we are just going to proceed particularly with the announcement that you don’t intend to present any mitigating circumstances, and particularly because there is another count upon which this Court was called upon to reimpose sentence. I’ll call then — or ask for responding briefs to the brief that has now been submitted by the defendant. The Court has received —I called for and have received a pre-sentence report, which I now cause to be filed in accordance with the law. The reporting officer, Mr. Thomas Lofland, is present in court. The defendant has received a copy of this pre-sentence investigation. The significant part of it relative to mitigating circumstances is that the defendant has never been convicted of any felony prior to this charge. Now if there are any matters which either the State or the defense wish to clarify with reference to this report, Mr. Lofland is present and you may call him to the stand and you may make any inquiries that you feel are pertinent. Neither side elected to call the reporting officer, Mr. Lofland, as a witness. The court then stated: Now with the announcement that the defense does not intend to produce any— call any witnesses to establish any mitigating circumstances, the Court of course has before it all matters during the course of the trial, heard the testimony relating to the aggravating circumstances and also some to mitigating circumstances. Does counsel for the State now wish to make any statement relative to aggravating circumstances? In response, the State attempted to call Coleman as a witness, but he declined to testify. The court then stated that it would “render its findings of fact and will go up on the record that is present in the absence of any mitigating circumstances presented by the defendant at this hearing.” It was agreed that the State would file a brief in which it would point out the places in the trial transcript which it believed contained references to aggravating and mitigating circumstances, and the defense would have an opportunity to respond to that brief. The court asked the State if it wanted to make proposed findings of fact, and the State responded that it would do so. The court also invited the defense to prepare proposed findings. The hearing was then adjourned. B. The July 10th Hearing The court set July 10, 1978 as the date for Coleman’s sentencing. On that date, at the beginning of the hearing, the court handed counsel for Coleman and the State an unsigned copy of its Findings. Cole