No. 92-156 and 92-231 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vWILLIAM GOLLEHON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Ed P. McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Donahoe and Mark Yeshe, Helena, Montana 

For Respondent: 

Hon Joseph P. Mazurek, Attorney General, Jennifer 

Anders, Assistant, Helena, Montana; Christopher G. 

Miller, Powell County Attorney, Deer Lodge, Montana; 

John P. Connor, Assistant Attorney General and 

Special Deputy Powell County Attorney, Helena, 

Montana 

Submitted: May 26, 1993 

Decided: October 20, 1993 

Filed: 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from a verdict and sentence from the Third 

~udicial District Court, Powell County, finding Gollehon guilty of 

deliberate homicide by accountability and sentencing him to death. 

We affirm. 

We consider the following issues on appeal: 

1. Did the District Court err by allowing State's counsel and 

co-defendantTurnerSs counsel to question prospective jurors during 

voir dire about the possibility of the death penalty being imposed 

(known as "death qualif icationgl) ? 

2. Did the District Court abuse its discretion by refusing to 

dismiss or continue the trial because of an alleged discovery 

violation by the State? 

3. Did the District Court abuse its discretion in refusing to 

allow Gollehon to inquire into evidence of prior crimes committed 

by one of the State's eyewitnesses? 

4. Did the District Court err in denying Gollehon's motion to 

declare Montana's death legislation illegal and unconstitutional? 

5. Did the District Court err by failing to rule, as a matter 

of law, that no aggravating circumstances existed? 

6. Did the District Court err by failing to rule, as a matter 

of law, that mitigating factors existed and that such mitigating 

factors were substantial enough to call for leniency? 

7. Did the District Court err by sentencing Gollehon to death 

for the crime of deliberate homicide by accountability? 

8. Did the District Court properly refuse to consider 

Gollehon's argument that death by hanging constitutes cruel and 

unusual punishment? 

9. Should this Court uphold Gollehon's death sentence on 

automatic review? 

While the opinion in State v. Turner, Cause Nos. 92-157 and 

92-161, sets out the facts of the homicide at issue with great 

detail, we briefly summarize the events of September 2, 1990. 
Corrections officers Larry Spangberg and Karl Beckerleg were making 

a routine walk around the track in the exercise yard of the Montana 

State Prison. A softball game was in progress. As they walked the 

track which circled the baseball diamond, the officers noticed the 

players had begun to drift to the side of the yard. As they 

approached the backstop, they found the badly beaten body of Gerald 

Pileggi. Two baseball bats lay by his body. 

Inmates have exercise time from 1 p.m. to 2:15 p.m. and from 

2:15 p.m. to 3:45 p.m. Once in the exercise yard, inmates must 

stay there until the period is over. At the time of the beating, 

250 inmates were in the exercise yard, including prison inmates 

from the high security section of the prison, known as the 

"highside. After officers found Pileggi, the yard was "called in" 

and inmates were searched. Nothing suspicious was found. 

Medical personnel were dispatched to the yard. Pileggi was 

still alive when taken from the yard but was having trouble 

breathing because of all the blood in his throat. The prison nurse 

was unable to recognize that the prisoner was Pileggi. Pileggi 

died while being air-lifted to St. Patrick's hospital in Missoula. 

An autopsy performed by Dr. Gary Dale, a State Medical 

Examiner, revealed that Pileggi had died of multiple injuries to 

the head and trunk. Dr. Dale was able to identify at least four 

blows, including a massive blow to the top of the head which caused 

the skull to cave in and a major blow to the left side of the face 

which collapsed the left side of the forehead and caused the brain 

to tear and the eyeball to rupture. Also identified were a blow to 
the jaw which fractured the upper and lower jaws, a blow to the 

breastbone, and another to the shoulder. Pileggils arms had 

bruises which indicated a struggle had taken place. 

The blows to the brain were identified as fatal because they 

tore the brain. Dr. Dale testified that most of the blows could 

have been delivered while Pileggi was standing but the blow to the 

left side of the head was delivered while Pileggi was on the 

ground. The blow to the left side of the skull collapsed the skull 

and pulpified the brain. 

Following the beating, Pileggivs cell was searched and a 

calendar containing notations was discovered. Because of this 

calendar, the investigation centered on three inmates: Douglas 

Turner, William Gollehon and Daryl Daniels. The notations on the 

calendar documented confrontations with these individuals, all of 

whom worked in the vlhighsidell kitchen before they were terminated 

because of suspected assaults on other inmates. 

Correction officials describe an increasing tension in the 

month before Pileggils death between kitchen employees who were 

non-sex offenders and those who were sex-offenders. Of the sexoffenders, several, including Pileggi, were physically beaten by 

other kitchen inmate employees. The victims would not reveal who 

was responsible for the injuries. 

Pileggi told corrections officers that three inmates had 

dragged him into the dish room in the kitchen and beat him up, but 

refused to identify who the three were. Gollehon, Turner and 
Daniels worked in the dish room. After this incident, the three 

were removed from the staff, just days before Pileggi's death. 

Because of the above incidents and Pileggits calendar notes, 

Gollehon, Turner and Daniels were removed from their cells and 

their cells were searched. In Gollehon's cell, officials found a 

pair of prison pants, with blood on them, and a towel stuffed into 

a pillow case. The bottoms of the pant legs had been ripped off 

and officers could see blood spatters on the remaining part of the 

pants. The towel also had blood on it. A forensic serologist was 

unable to verify that the blood was Pileggifs. 

Gollehon, Turner and Daniels were placed in maximum security. 

A number of inmates were interviewed but no one would give the 

names of those responsible for the beating death of Pileggi, 

despite the large number of inmates in the yard when Pileggi was 

murdered. In January 1991, an eyewitness came forward and agreed 

to testify in exchange for his guaranteed safety. This led to the 

filing of charges against Gollehon and Turner. 

The inmate, J.D. Amstrong, testified that he was playing 

baseball in the exercise yard the day Pileggi was beaten. 

Armstrong testified that he was approached by Gollehon who asked 

him which baseball bat was used the least. Armstrong testified 

that he suspected Gollehon was going to start a fight with Pileggi 

because Gollehon had indicated that he was going to Ifmess him up." 

Armstrong also testified that he saw Gollehon confront Pileggi with 

a baseball bat as Pileggi came around the track to the baseball 

field backstop. 
Armstrong noted that the two struggled for control of the bat 

just prior to Turneri s arrival at the scene. Armstrong saw Turner 

hit Pileggi on the left side of his face, after which Pileggi fell 

to the ground. Armstrong testified he then saw Turner and Gollehon 

each deliver four or five more blows before throwing the bats onto 

Pileggils body. 

Amstrong testified that as soon as the other inmates realized 

what was happening they guickly left the baseball diamond. 

Armstrong told Gollehon afterwards that he should do something 

about his pants because they were blood spattered. Gollehon 

responded with profanity, according to Armstrong. 

Another inmate, William Arnot, corroborated Armstrongts 

testimony. He further testified that he did not see Daryl Daniels 

in the exercise yard on that day. 

A defense witness testified that nine or ten inmates were 

involved and that after they pulled away, he saw a man lying on the 

ground. He testified he could not recognize any of the inmates. 

Other witnesses testified that they were playing with, or had seen, 

Gollehon and Turner playing horseshoes at the time of the beating. 

Another witness testified that Armstrong was not on the softball 

field the day of Pileggi's death but was playing dominoes with him 

in the gym. 

On January 10, 1991, an information was filed in Powell County 

District Court charging Gollehon and Turner with deliberate 

homicide for the beating death of Pileggi. On May 17, 1991, the 

information was amended to charge the defendants jointly with 
deliberate homicide or, in the alternative with deliberate homicide 

by accountability. Prior to trial the State gave notice to 

defendants that it would seek the death penalty in the event of a 

conviction. Following a joint trial, the jury found each defendant 

guilty of deliberate homicide by accountability. 

A separate sentencing hearing was held for Gollehon on 

February 27, 1992. The District Court determined that leniency was 

not warranted because the mitigating factors did not sufficiently 

outweigh the aggravating circumstances. On March 19, 1992, 

Gollehon was sentenced to death by hanging because he had not 

exercised his option to choose death by lethal injection. Gollehon 

appealed and the District Court stayed Gollehonls execution pending 

resolution of this appeal. While Turner presents us with only 

three issues on appeal, Gollehon puts forth nine issues for 

resolution. 

Did the District Court err by allowing State's counsel and codefendant Turner's counsel to question prospective jurors during 

voir dire about the possibility of the death penalty being imposed 

(known as "death qualification") ? 

Before voir dire began, Gollehon made an oral motion in limine 

requesting the court to prohibit the State from asking jury panel 

members to declare their beliefs concerning the death penalty. 

Gollehonls argument was that Montana juries do not participate in 

the sentencing portion of trial and, therefore, questioning the 

members about a possible sentence was inappropriate. Gollehon 

further argued that social science evidence proves that when a jury 

is "death qualified" it is more prone to convict the defendant. 

7 
The judge took the motion under advisement and asked codefendant Turner to respond to his stance on the issue. Turner 

responded that he felt the jury should be death qualified. 

Gollehon then moved the court to sever his trial from Turner. The 

court denied the motion. 

Gollehon claims that under Montana law, if the jury panel 

knows that the death penalty could be imposed upon conviction, the 

error is prejudicial per se. Further, Gollehon argues that the 

process of death qualification results in juries that are more 

conviction prone and that represent certain identifiable groups in 

society. According to Gollehon, such questioning of jurors and the 

resulting challenges for cause by attorneys produce 

unrepresentative juries and violate his constitutional rights of 

due process under both the state and federal constitutions. 

Gollehon, therefore, seeks a reversal of his conviction and a new 

trial. 

Gollehon has presented a constitutional challenge pursuant to 

the Sixth, Eighth and Fourteenth Amendments to the United States 

Constitution concerning the trial court's questioning of jurors 

during voir dire to determine their views on the death penalty 

(death qualification) . The State argues that Montana law 

specifically provides for death qualification of juries pursuantto 

46-16-115(2)(h), MCA, which provides: 

(2) A challenge for cause may be taken for all or any of 

the following reasons . . . (h) if the offense charged is 

punishable with death, having any conscientious opinions 

concerning the punishment as would preclude finding the 

defendant guilty, in which case the person must neither 

be permitted nor compelled to serve as a juror; 
According to the State, jurors cannot be dismissed simply because 

they have doubts about the death penalty but only if their beliefs 

for or against such penalty would prevent or impair their 

performance as a juror. This statute follows guidelines laid out 

by the Supreme Court of the united States in witherspoon v. 

Illinois (1968), 391 U.S. 510, 88 Sect. 1770, 20 L.Ed.2d 776, and 

further defined by Wainwright v. Witt (1985), 469 U.S. 422, 105 

S.Ct. 844, 83 L.Ed.2d 841. In Withers~oon, the United States 

Supreme Court ruled that a death sentence cannot be carried out if 

the jury that imposed or recommended it was chosen by excluding 

prospective jurors for cause simply because they voiced aeneral 

objections to the death penalty. State v. Coleman (19781, 177 

Mont. 1, 579 P.2d 732. Witherswoon provided an exception to this 

rule: if a prospective juror is irrevocably committed to voting 

against conviction because of the possibility of a death penalty, 

he may be excused for cause. 

Montana codifies the Withers~oon rule in 5 46-16-115(2) (h), 

MCA. Our statute permits a juror to be excused not for his or her 

mere belief or disbelief in the use of the death penalty, but only 

in instances where that belief prohibits the juror from applying 

the law which the judge has provided. 

The death qualifying voir dire is, thus, more extensive 

than a mere inquiry into the venirepersonls views on the 

death penalty . . . [it is] "deep probing as to the 

opinions held" including exploration of whether the 

venirepersons can consider the full range of punishment 

under the facts alleged in the case before them. . . . This qualification is a two-step process. First, the 

experiences, opinions or views of the venireperson are 

uncovered by questions asked by the court and attorneys. 

Second, a determination is made by the trial court as to 
whether those experiences, opinions or views will prevent 

or substantially impair the person's duties as a juror in 

accordance with the instructions and oath. 

P. Peters, Capital Voir Dire: A Procedure Gone Awry, 58 UMCK Law 

Review, 603, 623 (1990). 

Gollehon presents us with social science studies which seem to 

indicate that death-qualifying a jury prejudice5 a defendant. We 

note that the U.S. Supreme Court has considered studies such as 

these and rejected them. In fact, we note that one of the 

authorities cited by Gollehon in support was used in Lockhart v. 

McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137, and 

rejected by the U.S. Supreme Court. 

In Lockhart, the Supreme Court seriously questioned the 

validity of such studies. See M. Peters, Constitutional Law: Does 

"Death Oualification" Spell Death for Capital Defendant's 

Constitutional Riaht to an Impartial Jury? 26 Washburn Law 

Journal, 382, 394 (1987). McCree argued the same thing that 

Gollehon argues here that "death qualification1' violated the fair 

cross section requirement of the Sixth Amendment and violated his 

due process rights. The U.S. Supreme Court disagreed, holding that 

defendant was entitled to a fair cross section of the jury panel 

and not the final jury selected. Lockhart, 476 U.S. at 174, 106 

S.Ct. at 1764, 90 L.Ed.2d at 148. We agree with the Court's 

assessment that to have a cross-section of the jury would require 

a Herculean effort and be "unworkable and unsound." Lockhart, 476 

U.S. at 174, 106 S.Ct. at 1765, 90 L.Ed.2d at 148. 
Gollehon's due process arguments are likewise without 

substance. In Lockhart the U.S. Supreme Court considered the 

studies individually and expressly ruled that even if valid, the 

studies did not prove death qualification was unconstitutional. 

Like the U.S. Supreme Court and Montana, many jurisdictions in this 

country have determined that death qualification is constitutional 

and does not infringe upon the accused's due process rights. 

Johnson v. State (Fla. 1992), 608 S.2d 4; Pickens v. Lockhart 

(E.D.Ark. 1992), 802 F.Supp. 208; Clayton v. State (0kl.Ct.App. 

1992), 840 P.2d 18; People v. Hill (Cal. 1992), 839 P.2d 984 and 

State v. Harris (Tenn. 1992), 839 S.W.2d 54. One state has 

determined that a defendant who wished to engage in death 

qualification of the jury and was prohibited by the court from so 

doing was denied due process of law. People v. Smith (Ill. 1992), 

604 N.E.2d 858. 

Gollehonls statement that any mention of death as a penalty is 

prejudicial per se in Montana is incorrect. He cites State v. 

Herrera (1982), 197 Mont. 462, 643 P.2d 588 and State v. Brodniak 

(1986), 221 Mont. 212, 718 P.2d 322. Neither case is a capital 

case nor even hints at such a pronouncement on death qualification. 

While Gollehonls point concerning the bifurcation of the guilt 

and sentencing portions of Montana trials is noted, we do not 

conclude that such division automatically precludes the death 

qualification process. Every defendant is entitled to a jury that 

will follow the courtls instructions and act impartially. If a 

juror, despite the instructions by the court, will refuse to 
consider conviction because of his or her strong belief concerning 

the possible death sentence, the juror's dismissal is appropriate. 

Adams v. Texas (1980), 448 U.S. 38, 50, 100 S.Ct. 2521, 2529, 65 

L.Ed.2d 581, 593, 

Here the court and counsel questioned the jury panel 

adequately. The judge excused one panel member because she could 

not assure the court that she would be able to follow the court's 

instructions during trial because of her strong stance against the 

death penalty. Such exclusion is proper according to 5 46-16- 

115 (2) (h) , MCA. 

We conclude that the greater weight of authority indicates 

that death qualification as a procedure to insure a jury committed 

to its task is constitutional. We, therefore, hold that the 

District Court did not err by allowing the State's counsel and codefendant Turner's counsel to question prospective jury members 

during voir dire about the possibility of the death penalty. 

Did the District Court err by refusing to dismiss or continue 

the trial because of an alleged discovery violation by the State? 

Gollehon claims he learned of a possible discovery violation 

during the course of the trial. He then moved the court for 

dismissal or in the alternative for a continuance. Both motions 

were denied. 

Gollehon argues on appeal that Powell County Undersheriff 

Scott Howard (Howard) interviewed hundreds of inmates concerning 

Pileggi's death. According to Gollehon not all of these interviews 

had ensuing reports; nor were contents of interviews containing 
information inconsistent with the physical evidence released to the 

defense. Gollehon argues that the circumstances attendant to 

Pileggils murder were common knowledge throughout the prison. 

Therefore, Gollehon argues that information withheld from him could 

have been significant in discrediting the State's two alleged eyewitnesses. According to Gollehon, the State had a legal obligation 

to provide him with the information gleaned from these interviews. 

The State contends that six months prior to trial it sent 

Gollehon a list of file materials in its possession, one of these 

files was a list of inmates questioned and a list of inmates 

interviewed by Howard and Tom Blaz, deputy investigator at the 

Montana State Prison. Further, the State filed its notice of 

disclosure pursuant to 8 46-15-322, MCA. The State further argues 

that Gollehonls motion to dismiss came long after he supposedly 

became aware of the alleged violation. The State argues that none 

of the inmates interviewed implicated anyone other than Gollehon 

and Turner. Therefore, the State claims that the untimely 

objection combined with GolLehonSs lack of proof that the 

information not presented to him could have been material, casts 

serious doubt on the legitimacy of Gollehonls claimed discovery 

violation. 

Gollehonls motion to dismiss is in effect a motion requesting 

the court to exercise its discretion to dismiss the charges on its 

own and in the furtherance of justice. Section 46-13-401, MCA 

(formerly 46-13-201, MCA) . See State v. Roll (19831, 206 Mont. 

259, 670 P.2d 566. This Court will review a district court's 
decision to dismiss criminal charges by determining whether the 

lower court abused its discretion in view of the constitutional 

rights of the defendant and the interest of society. Roll, 206 

Mont. at 261, 670 P.2d at 568. A motion for a continuance is 

reviewed for abuse of discretion. State v. Lapier (1990), 242 

Mont. 335, 790 P.2d 983; 5 46-13-202(3), MCA. 

The pivotal concern here is whether the State failed to 

provide the defense with pertinent, exculpatory evidence. 

Suppression of evidence by the State of facts that would be 

favorable to the defendant constitutes a violation of defendant's 

due process rights. Brady v. Maryland (19631, 373 U.S. 83, 83 

S.Ct. 1194, 10 L.Ed.2d 215, This evidence, known as "Brady 

Material,gs must be intentionally or deliberately suppressed by the 

investigating officers in order for the act of suppression to be a 

due process violation per se. Sadowski v. McCormick (1991), 247 

Mont. 63, 805 P.2d 537. 

Negligently suppressed evidence violates due process only if 

it is material and of substantial use, vital to defense, and 

exculpatory. Sadowski, 247 Mont. at 79, 805 P.2d at 547. 

Officials investigating this murder had no duty to obtain 

exculpatory evidence favorable to the defense, but must avoid 

interference with the efforts on the part of the accused to obtain 

such evidence. Sadowski, 247 Mont. at 79, 805 P.2d at 546. 

Investigators for the State provided the defense with lists 

containing 213 pieces of evidence it had gathered in the case. 

Number 71 on the list is noted as: 
1 page list of inmates interviewed by Deputy Howard and 

Tom Blaz. 

Number 103 on that list states: 

1 page list of inmates questioned, dated 9-2-90. 

It was up to Gollehon to request these items: 

Disclosure by prosecution. (1) Uvon reauest, the 

prosecutor shall make available to the defendant for 

examination and reproduction the following material and 

information within the prosecutor's possession or control . . . (Emphasis added.) 

Section 46-15-322(1), MCA. The record does not indicate such a 

request was made. 

More importantly, nothing prevented Gollehon from questioning 

anyone at the prison. The State was under a duty to provide 

statements from inmates it planned to use as witnesses. Section 

46-15-322 (1) (a), MCA. The State was not under a duty to 

investigate the entire case for Gollehon. 

Gollehon states Itit is fair to speculate that at least some of 

the information garnered from these other witnesses was accurate." 

This Court will not sanction such 1gspeculation.8* Gollehon was free 

to question inmates and put them on the stand. He chose not to do 

that. Having made the decision, he cannot now claim a discovery 

abuse. Of paramount importance is the fact Gollehon provides no 

evidence whatsoever that any exculpatory evidence would have been 

obtained. Speculation of exculpatory evidence is not enough to 

show it to be "of substantial usen or "vital to the defense." 

We conclude that the State met its responsibility in providing 

Gollehon with a list of its evidence. Therefore, we hold the 
District Court did not abuse its discretion in denying dismissal or 

a continuance. 

Did the District Court abuse its discretion in refusing to 

allow Gollehon to inquire into evidence of prior crimes committed 

by one of the State's eyewitnesses? 

The State offered testimony of two inmates who stated they 

witnessed the beating death of Gerald Pileggi: J.D. Armstrong and 

William Arnot. Gollehon sought the court's permission to introduce 

a past employer of Arnotls who would testify that Arnot stole his 

Mercedes. Also, Gollehon wished to present evidence of other 

thefts and burglaries committed by Arnot. The court refused to 

allow any questions concerning prior acts of theft or burglary, 

citing Rules 608 and 609, M.R.Evid. 

Gollehon argues that the rules of evidence permit him to 

introduce evidence of a witness's prior bad acts which go to prove 

the witness's dishonesty. The State contends that at a pretrial 

hearing all parties agreed to abide by the Montana Rules of 

Evidence and those rules specifically exclude the use of prior 

convictions to impeach a witness. 

This issue involves Montana Rules of Evidence 608 and 609: 

Rule 608. Evidence of character and conduct of 

witness. 

(a) Opinion and reputation evidence of character. 

The credibility of a witness may be attacked or supported 

by evidence in the form of opinion or reputation, but 

subject to these limitations: (1) the evidence may refer 

onlyto character for truthfulness or untruthfulness, and 

(2) evidence of truthful character is admissible only 

after the character of the witness for truthfulness has 

been attacked by opinion or reputation evidence or 

otherwise. 
(b) Specific instances of conduct. Specific 

instances of the conduct of a witness, for the purpose of 

attacking or supporting the witness' credibility, may not 

be proved by extrinsic evidence. They may, however, in 

the discretion of the court, if probative of truthfulness 

or untruthfulness, be inquired into on cross-examination 

of the witness (I) concerning the witnesst character for 

truthfulness or untruthfulness, or (2) concerning the 

character for truthfulness or untruthfulness of another 

witness as to which character the witness being crossexamined has testified. 

The giving of testimony, whether by an accused or by 

any other witness, does not operate as a waiver of the 

witnessf privilege against self-incrimination when 

examined with respect to matters which relate only to 

credibility. 

Rule 609. Impeachment by evidence of conviction of 

crime. 

For the purpose of attacking the credibility of a 

witness, evidence that the witness has been convicted of 

a crime is not admissible. 

Rule 608 (b) , M. R. Evid. , provides that specific instances of 

conduct by a witness, for the purpose attacking supporting 

his credibility, may not be proved by extrinsic evidence. State v. 

 orris (1984) , 212 Mont. 427, 689 P.2d 243. The record reveals 

that Gollehonls attorney wished to question both a prior employer 

and Arnot himself on cross-examination concerning past acts of 

burglary and theft. The court correctly refused such questioning. 

Rule 608 pennits 9fopinion11 testimony concerning truthfulness 

in order to support or discredit testimony. Gollehon did not 

attempt to introduce such opinion testimony. The proposed 

testimony of Arnotls past employer indicating Arnotls theft of the 

employerls Mercedes constitutes extrinsic evidence of conduct used 

for the purpose of discrediting a witness and as such is prohibited 

by Rule 608 (b) , M.R.Evid. 
Further, Gollehon's proposed questioning of Arnot on crossexamination as to his own prior acts of theft and burglary is 

likewise inadmissible. We previously held: 

The testimony as to Phillips' previous misconduct was 

wholly unrelated to the ability of Phillips to observe, 

recall or testify as to any relevant occurrences in the 

altercation between White and Pippin. 

State v. White (l983), 202 Mont. 491, 496, 658 P.2d 1111, 1113. 

Likewise, testimony of previous instances of theft and burglary by 

Arnot was wholly unrelated to Arnot5s truthfulness, ability to 

observe, recall or testify as to the beating of Pileggi by 

Gollehon. 

Gollehon argues that he should have been able to question 

Arnot about incidents of theft and burglary because they go to the 

witness's "habit of doing things that impugned his ability to be 

credible and to tell the truth.'' Therefore, Gollehon argues that 

evidence concerning theft and burglary are admissible to prove 

truthfulness. Using this reasoning, any criminal act can be said 

to do the same thing. Gollehon quotes a leading treatise on 

evidence which lists acts indicating dishonesty: forgery, bribery, 

suppression of evidence, false pretenses, cheating and 

embezzlement, J. Weinstein & M. Berger, weinstein's ~vidence, 6 

608[5], at 608-27 to 608-52 (1988 & Supp. 1990). Burglary and 

theft are properly absent from this list, yet Gollehon argues that 

a source used by the authors of the treatise did contain theft and 

burglary. We decline to read these offenses into the treatise's 

list. 
Gollehonts thinly-veiled proposed questioning of Arnot's prior 

convictions without mentioning the word wconviction~ is not 

persuasive. Montana's Rule 609, M.R.Evid., is unique; it 

specifically prohibits evidence of a witness's prior convictions. 

This Court has been adamant in prior rulings that Rule 609 be 

strictly enforced: 

[Tlhe intention on the part of the State [in asking about 

prior convictions] was to discredit the witness by 

showing that he had been engaged in crimes of 

intimidation and assault, and that the intimidation crime 

involved guns. We further conclude that the aim on the 

part of the State was ta improperly impugn the character 

of the defendant and thereby suggest a greater likelihood 

of guilt of the crimes with which he was charged. We 

will not tolerate this intentional and significant 

evasion of our rules. 

State v. Shaw (1989), 237 Mont. 451, 454, 775 P.2d 207, 208-209. 

Gollehon goes on to argue that elimination of this line of 

questioning worked to deny him his constitutional right of 

confrontation. The Sixth Amendment to the United States 

constitution guarantees the right of an accused in a criminal 

prosecution Itto be confronted with the witnesses against him." 

State v. Short (1985), 217 Mont. 62, 67, 702 P.2d 979, 982. This 

includes the right to cross-examination. Davis v. Alaska (1974), 

415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. 

The court must balance the probative value of relevant 

evidence as compared with the possibility of prejudice. Short, 217 

Mont. at 69, 702 P.2d at 983. If the probative value of evidence 

is greater, and other evidentiary parameters are satisfied, the 

evidence is admissible, 
~dmission of evidence resides with the discretion of the 

court. State v. Crist (1992), 253 Mont. 442, 833 P.2d 1052. Once 

admitted, however, it is the trier of fact who must determine the 

weight to be given to each piece of evidence admitted. State v. 

Bower (l992), 254 Mont. 1, 833 P.2d 1106. Gollehon's argument that 

the trier of fact was not presented with a crucial line of 

questioning of Arnot is totally speculative. 

We hold that limiting the extent of the cross-examination 

on the pending charges in Washington did not violate 

Short's right to confrontation of witnesses and was not 

an abuse of the trial court's discretion. 

Short, 217 Mont. at 68, 702 P.2d at 982. 

Likewise, we conclude that Gollehon's right to confrontation 

was not denied by the courtls restrictions on cross-examination of 

Arnot. We hold the ~istrict Court did not abuse its discretion by 

refusing to allow Gollehon to inquire into evidence of prior crimes 

committed by one of the State's eyewitnesses. 

Did the District Court err in denying Gallehon's motion to 

declare Montana's death legislation illegal and unconstitutional? 

Gollehon argues that this Court should once again consider the 

constitutionality of Montana's death penalty legislation. Gollehon 

contends that the present legislative scheme denies him due process 

and equal protection under the Fourteenth Amendment to the United 

States Constitution. The State argues that this Court has already 

definitively determined that the death penalty statute is 

constitutional. 
Gollehon argues that Montana's death penalty statutes violate 

Article 11, Section 28 of Montana's Constitution which provides: 

Laws for the punishment of crime shall be founded on the 

principles of prevention and reformation. Full rights 

are restored by termination of state supervision for any 

offense against the State. 

Gollehon argues, as have others before him, that the 1889 

Constitution contained a reference to the death penalty and the 

conscious excision of any mention of this punishment indicates the 

legislature's unwillingness to use the death penalty. Such is 

clearly not the case. 

The legislature has instituted the death penalty and retains 

it pursuant to 5 46-18-301, MCA. If the legislature of this State 

intended to do away with the death penalty, it would have repealed 

this piece of legislation. Further, and more important, if as 

Gollehon claims, the vote of the people of this State to retain the 

death penalty was somehow not representative, the people would have 

objected some time during the twenty-one years since the 1972 

referendum. 

The Staters argument that this Court has previously determined 

the constitutionality of the death penalty is well taken. Both 

State v. Langford (1991), 248 Mont. 420, 813 P.2d 936 and State v. 

McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, have upheld the 

constitutionality of our death penalty statutes: 

We therefore affirm our holding in McKenzie and hold that 

Montana's death penalty statutes do not violate Montana 

Constitution Article 11, Section 28. 

Lanaford, 248 Mont. at 441, 813 P.2d at 952. 
We conclude that Gollehon has raised arguments the Court has 

considered in the past. We hold that the District Court did not 

err in denying Gollehonls motion to declare Montana's death 

legislation illegal and unconstitutional. 

Did the District Court err by failing to rule, as a matter of 

law, that no aggravating circumstances existed? 

Gollehon argues that the trial court improperly considered the 

aggravating circumstances as per 5 46-18-303(l) and (2), MCA. 

Gollehon contends that both aggravating factors can only be applied 

if he was convicted of deliberate homicide and since he was 

acquitted of deliberate homicide, the aggravating factors do not 

apply. Further, Gollehon argues that when the sentencing judge 

considered deliberate homicide he was in violation of the double 

jeopardy provisions of the Montana Constitution as well as the 

United States constitution. 

The State contends that Gollehon was convicted of 

accountability for deliberate homicide and his arguments reflect a 

misunderstanding of the jury's verdict and the applicable case law. 

This presents a question of law which we review de novo. U. S . 

v. Engesser (9th Cir. Mont. 1986), 788 F.2d 1401, cert. denied, 479 

U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159. The aggravating factors 

which are weighed when a court considers the death penalty are 

found in 5 46-18-303, MCA. Here the court considered (1) and (2) 

as aggravating factors: 

(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 homicide as defined 

in subsection (1) (a) of 45-5-102, and the victim was a 

peace officer killed while performing his duty. 

(7) The offense was aggravated kidnapping which 

resulted in the death of the victim or the death by 

direct action of the defendant of a person who rescued or 

attempted to rescue the victim. 

(8) The offense was attempted deliberate homicide, 

aggravated assault, or aggravated kidnapping committed 

while incarcerated at the state prison by a person who 

has been previously: 

(a) convicted of the offense of deliberate homicide; 

or 

(b) found to be a persistent felony offender 

pursuant to part 5 of this chapter and one of the 

convictions was for an offense against the person in 

violation of Title 45, chapter 5, for which the minimum 

prison term is not less than 2 years. 

(9) The offense was deliberate homicide and was 

committed by a person during the course of committing 

sexual assault, sexual intercourse without consent, 

deviate sexual conduct, or incest, and the victim was 

less than 18 years of age. (Emphasis supplied.) 

Section 46-18-303, MCA. Gollehon objects to subsection 1 and 2 as 

aggravating factors because he claims to have been acquitted of 

deliberate homicide. 

The jury found Gollehon and Turner "not guiltyIi of deliberate 

homicide but "guilty* of deliberate homicide by accountability. 

The jury was instructed that a person is legally accountable for 

the conduct of another when: 

(1) he purposely or knowingly causes another to 

perform the conduct, regardless of the legal capacity or 

mental state of the other person; or 
(2) the statute defining the offense makes him so 

accountable; or 

(3) either before or during the commission of an 

offense, and with the purpose to promate or facilitate 

such commission, he solicits, aids, abet, agrees or 

attempts to aid, such other person in the planning or 

commission of the offense. 

Jury Instruction #11. 

The court went on to explain deliberate homicide by 

accountability: 

To convict defendants. or either of them. of 

Deliberate Homicide by beinq lesally accountable for the 

conduct of another, the State must prove the following 

elements: 

1. That the crime of Deliberate Homicide, as 

defined in Instruction 9 has been committed; and 

2. That either or both of defendants, with common 

pumose with the other defendant, either before or 

durins the commission of the offense of deliberate 

homicide, and with the purpose to promote or facilitate 

such commission solicits, aids, abets, agrees or attempts 

to aid, the other defendant in the planning or commission 

of the offense. 

If you find from your consideration of the evidence 

that all these elements have been proved beyond a 

reasonable doubt, then you should find the defendants, or 

either of them, guilty of Deliberate Homicide by 

Accountability, as alleged in Count I1 of the 

Snfonnation. 

If, on the other hand, you find from your 

consideration of the evidence that any of these elements 

has not been proved beyond a reasonable doubt then you 

should find the defendants, or either of them, not guilty 

of Deliberate Homicide by Accountability, as alleged in 

Count I1 of the Information. (Emphasis added.) 

Jury Instruction #12. 

These instructions clearly and correctly instruct the jury 

that the offense of deliberate hamicide by accountability requires 

a deliberate homicide and that the defendant(s) acted with common 

purpose before or during the homicide. The jury did not find 

Gollehon not guilty of deliberate homicide, but only found he did 
not act alone during the crime. A charge of deliberate homicide by 

accountability allowed the jury to convict both men involved in the 

deliberate homicide without havingto make the determination of who 

struck the fatal blow. 

Gollehon cites Enmund v. Florida (l98l), 458 U.S. 782, 102 

S.Ct. 3368, 73 L.Ed.2d 1140, for the proposition that the Eighth 

Amendment forbids the imposition of the death penalty against one 

who neither took life, attempted to take life, nor intended to take 

life. It is Gollehonls argument that he was acquitted of 

deliberate homicide and cannot be said to have attempted to take 

life. 

In Enmund, the Supreme Court reversed a death sentence levied 

on the driver of a car involved in a robbery in which several 

people were killed. Two robbers who had entered the home committed 

the murders while Enmund waited in the car. The case we have 

before us is not a felony murder case like Enmund. Here, both 

Gollehon and Turner were convicted of deliberate homicide by 

accountability. Both Gollehon and Turner were adjudged to have 

acted in a common plan to kill Pileggi, regardless of who struck 

the fatal blow. 

Gollehonls persistent view that he was acquitted of deliberate 

homicide is error. Gollehon was found not to have acted alone--he 

was convicted of acting with Turner in a common scheme to kill 

Pileggi. 

Gollehonls argument that the crime of "ac~ountability~~ is a 

separate crime is not correct. The State charged accountability 
for deliberate homicide so that the jury could convict if they 

determined Gollehon and Turner aided and abetted each other in the 

murder of Pileggi. 

Tn State v. Duncan (1991), 247 Mont. 232, 805 P.2d 1387, the 

appellant following a conviction for deliberate homicide argued 

that the record did not contain sufficient evidence to prove that 

he shot and killed the victim. 

The evidence did not have to prove that Roy actually shot 

and killed Larry as Roy was charged and convicted of 

deliberate homicide through accountability . . . The 

record, through the testimony of Ursla, Sherry and Ginny, 

as well as other witnesses, overwhelmingly indicates that 

Roy either shot Larry, or aided or abetted Joe in doing 

so. 

Duncan, 247 Mont. at 239, 805 P.2d at 1392. 

Because the jury found that Gollehon was guilty of deliberate 

homicide by accountability the sentencing consideration of whether 

to use the death penalty for the conviction was not double 

jeopardy. The jury had already determined that Gollehon had 

committed deliberate homicide by, at the very least, aiding and 

abetting Turner. 'IAggravating circumstances are not separate 

penalties or offenses, but are 'standards to guide the making of 

[the] choice' between the alternative verdicts . . . the judge's 

finding of any particular aggravating circumstance does not of 

itself lconvict a defendant . . . Walton v. Arizona (1990) , 497 

U.S. 639, 648, 110 S.Ct. 3047, 3054, 111 L.Ed.2d 511, 525. 

We hold that the District Court did not err in failing to 

rule, matter law, that aggravating circumstances 

existed. 
Did the District Court err by failing to rule, as a matter of 

law, that mitigating factors existed and that such mitigating 

factors were substantial enough to call for leniency? 

Gollehon argues that the court is obliged to review the 

existence or nonexistence of all mitigating circumstances 

enumerated in § 46-18-304, MCA. Gollehon further argues that his 

extensive sexual abuse as a child entitled him to rehabilitation 

and the only programs in existence within the prison system are 

provided for women abuse victims, not men. Therefore, Gollehon 

contends that the mitigating evidence he presented was substantial 

enough to call for leniency. 

The State argues that the District Court considered the 

mitigating factors of 5 46-18-304, MCA, and determined after giving 

all mitigating factors effect, that leniency was not called for. 

Further, the State argues that on appeal, Gollehon does not argue 

any of the specific mitigating factors to be considered under 

Montana law, but only factors which fall within the "catch all" 

category of the statute. 

This Court is charged on review of a death sentence to 

consider the punishment as well as any errors enumerated by way of 

appeal according to 5 46-18-310, MCA: 

(1) whether the sentence of death was imposed under 

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 . . . mitigating circumstances enumerated in . . . 46-18-304, 

MCA; and 

(3) whether the sentence of death is excessive or 

disproportionate tothe 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. 

The District Court issued findings of fact and conclusions of 

law following a sentencing hearing on February 27, 1992. The 

findings in regard to mitigating circumstances were structured 

around the legislative directives of 46-18-304, MCA: 

46-18-304. Mitigating circumstances. Mitigating 

circumstances are any of the following: 

(1) The defendant has no significant history of 

prior 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 

relative minor. 

(7) The defendant, at the time of the commission of 

the crime, was less than 18 years of age. 

(8) Any other fact that exists in mitigation of the 

penalty. 

The court reviewed the first seven elements in detail noting 

that no evidence had been submitted by Gollehon concerning elements 

one through seven. Gollehon presented evidence concerning 

subsection 8, the catch-all, which vividly portrayed the inhuman 

conditions under which he was raised. He presents the same on 

appeal. 

While we acknowledge the severity of Gollehon's traumatic 

childhood, our responsibility as a reviewing court is to evaluate 

whether the district court acted without passion or prejudice, 

under the existence or nonexistence of substantial evidence, and 
with consideration of whether the sentence given is proportionate 

to the crime. Section 46-18-310, MCA. 

The District Court stated in finding #14 that it had 

considered and given effect to all Gollehon's mitigating evidence 

of childhood abuse. The court considered in detail, and without 

passion or prejudice, the evidence presented by Gollehon. In the 

end, the court determined that Gollehon had failed to take 

advantage of any help for problems caused by his childhood abuse 

and that the evidence concerning his family history was not 

sufficient to preclude the death penalty. 

The Ninth circuit in reviewing Montana's catch-all subsection 

to 5 46-18-304, MCA, states that as long as the court considers 

evidence presented under this subsection "[tlhe Montana courts were 

entitled to conclude that the mitigating evidence . . . submitted 

under the catch all subsection 8 was not persuasive enough to grant 

a sentence less than death. It Smith v. McComick (9th Cir. Mont. 

l99O), 914 F.2d 1153, 1165. The findings issued by the District 

Court clearly show that it cited many instances from Gollehonts 

past which indicate that he did not attempt to overcome the 

problems of his childhood abuse. 

The court further considered elements from Gollehon's history 

of institutionalization as mitigating factors. The court stated 

that despite instances of prior good conduct during his first 

prison sentence, Gollehonls failure to address his serious 

personality problems led to even more serious difficulties during 
his second incarceration, this time for deliberate homicide. The 

court concluded: 

The defendant has demonstrated that he cannot live within 

the rules of even a prison society without taking another 

life. The court feels that he will again kill another 

human being if the opportunity presents itself. 

We note that the court specifically noted that the programs at 

the prison are inadequate to deal with the personality problems 

from which Gollehon suffers. However, the record does not show 

that Gollehon would have benefitted from such programs if they 

existed, and the court so concluded. 

The record also reveals that the court fully disclosed the 

reasons upon which it based its decision to sentence to death: 

An incomplete record in capital sentencing is 

constitutionally inadequate: there must be "full 

disclosure of the basis for the death sentence." 

Smith, 914 F.2d at 1166, citing Gardner v. Florida (1977), 430 U.S. 

349, 361, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393. The record being 

complete concerningthe court's analyses, Gollehon's constitutional 

rights have not been violated. 

In summation, we conclude that the District Court considered 

adequate evidence both of aggravating and mitigating factors and 

considered them in their totality rather than weighing each factor 

by itself. The court concluded that the evidence presented by the 

State concerning the aggravating factors was shown "beyond a 

reasonable doubt." Further, the court stated that when weighed 

against the mitigating evidence, the cumulative nature of 

Gollehonls mitigating evidence was not "sufficiently substantial to 
call for leniency." Walton v. Arizona (1990), 497 U.S. 639, 649, 

110 S.Ct. 3047, 3055, 111 L.Ed.2d 511, 525. 

The proportionality review will be considered later. 

We hold the District Court did not err by failing to rule, as 

a matter of law, that mitigating factors existed and that 

mitigating factors were substantial enough to call for leniency. 

VII 

Did the District Court err by sentencing Gollehon to death for 

the crime of deliberate homicide by accountability? 

Gollehon argues that it is not legally permissible to sentence 

a defendant to death upon a conviction for the crime of deliberate 

homicide by accountability because no sentence for this crime is 

set by statute. Again, Gollehon argues he was acquitted of 

deliberate homicide. According to Gollehon, this Court must 

interpret ambiguous statutes favorably for the person against whom 

the enforcement is sought, 

The State argues that deliberate homicide by accountability is 

not a separate crime from that of deliberate homicide. According 

to the State, conviction of any felony I1by accountabilityw carries 

with it the sentence for the underlying felony. Further, the State 

contends that 5 45-1-102(2), MCA, dictates that all penal 

provisions be construed according to the fair import of their terms 

with a view to effect its object and to promote justice. 

We emphasize our prior reasoning concerning deliberate 

homicide by accountability. Having been found not guilty of 

deliberate homicide, Gollehon still must contend with his 

conviction of deliberate homicide by accountability. The dissent 

31 
states that Gollehon was specifically found not guilty of 

deliberate homicide and cannot, therefore, be sentenced to death. 

We disagree. Gollehon was found guilty of deliberate homicide by 

accountability. No matter how you juggle semantics, Gollehon was 

convicted of committing a deliberate homicide, the jury simply did 

not find he acted alone. 

The dissent's reasoning only works if accountability is a 

separate crime for which the legislature failed to provide a 

remedy. Accountability is not an "off-shootw homicide. It is a 

connection provided by our legislature that gives courts and juries 

a way to make people uaccountable~t or responsible for a crime that 

has definitely been committed. The responsibility for the crime 

attaches by way of acts committed by the accused. The accused 

either participated in a communal crime or aided, abetted another, 

or planned the crime. 

The dissent refers to 5 45-5-102, MCA, which in pertinent part 

states: 

45-5-102. Deliberate homicide. (1) A person commits the 

offense of deliberate homicide if: 

(a) he purposely or knowingly causes the death of 

another human being; (Emphasis supplied.) 

The dissent concludes that Gollehon was specifically found not 

guilty of the offense of causing the death of another human being. 

By its verdict the jury found Gollehon not guilty of deliberate 

homicide. It also found him guilty of deliberate homicide by 

accountability. Here we emphasize that 1 45-2-302, MCA, previously 

set out in this opinion, provides that a person is legally 

accountable for conduct of another when the described events occur 
- as a result, we conclude that Gollehon's conviction meets the 

requirements of 5 45-5-102, MCA, as he did "causeg1 the death of 

Pileggi because he aided and abetted in the commission of the 

offense of deliberate homicide as required by statute. We 

therefore conclude that Gollehon has met the specific requirements 

of 5 45-5-102, MCA, by his conduct in which he purposely or 

knowingly caused the death of Pileggi, whether by his own blow, or 

the blow of Turner whom he aided and abetted. 

The evidence presented at this trial places Gollehon in the 

middle of a homicide with a bat in his hands. Pileggi was killed 

either by blows from Gollehon or Turner. Following the dissent's 

reasoning, anytime the fatal blow in a case cannot be attributed to 

one person, no person involved can ever get more than ten years as 

a sentence, no matter how heinous the crime. Thus, according to 

the dissent, the accountability statute must by its reasoning 

dilute criminal responsibility of all types rather than making all 

those responsible for a crime pay the same price. We conclude that 

the legislature never intended the result that the dissent 

suggests. We determine that our legislature never meant to dilute 

responsibility for a criminal act when that act was committed by 

more than one person, but instead meant that all those 

participating in a crime be l'accountablell for the whole of the 

responsibility of that act. Here, that act was deliberate 

homicide, which carries death as a possible sentence, 

We note that Montana's statutes 5 45-2-301 through 303, MCA, 

were taken fromthe Illinois Criminal Code sections 5-1, 5-2 and 5- 
3 (1961). This Court has already determined that when Montana 

adopts statutes from other states, we will also adopt the case law 

from that state which interprets the statute. State v. Murphy 

(1977), 174 Mont. 307, 311, 570 P.2d 1103, 1105. 

Illinois has specifically upheld the death sentence when 

applied to those persons found guilty of murder (deliberate 

homicide in Montana) under the theory of accountability. People v. 

Stanciel (Ill. 1992), 606 N.E.2d 1201; People v. Ruiz (Ill. 1982), 

A charge based upon accountability must necessarily flow 

fromthe principal crime at issue. Accountability is not 

in and of itself a crime, but rather a method through 

which a criminal conviction may be reached. Simply, the 

statute is a statement of the principles of 

accessoryship. 

Stanciel, 606 N.E.2d at 1209. 

This reasoning is no different than our own reasoning in prior 

cases : 

B.D.C.'s challenge on this ground has no basis in law. 

B.D.C. seems to be arguing that when one is charged with 

an offense by accountability, he or she is being charged 

with a separate or different offense. Accountability, 

however, is merely a conduit by which one is held 

criminally accountable for the acts of another. There is 

no separate offense, only the underlying offense which 

has been physically committed by another, but for which 

the defendant is equally responsible because of his or 

her conspiring or encouraging participation. 

Matter of B.D.C. (1984), 211 Mont. 216, 220-21, 687 P.2d 655, 657. 

Both Gollehon and Turner were convicted of deliberate homicide 

by accountability. Neither man was "acquitted" of deliberate 

homicide as they argue, and as the dissent argues, but only of 

committing the homicide alone. The deliberate homicide occurred; 
Gerald Pileggi is dead. However, which blow actually caused the 

death is indeterminable. It is also irrelevant. 

If a person has conspired to commit and facilitated the 

commission by another of a criminal act, he is no less 

guilty because he did not "pull the trigger." 

Matter of B.D.C., 211 Mont. at 221, 687 P.2d at 657. 

The jury was instructed correctly that they had to determine 

first that a deliberate homicide had occurred before they could 

reach a conviction of deliberate homicide by accountability. 

Gollehon s argument, therefore, that the death penalty is not a 

viable sentence for deliberate homicide by accountability is 

legally incorrect. Once determined responsible for deliberate 

homicide (acting alone) or for deliberate homicide by 

accountability (not acting alone) the death penalty is an 

appropriate sentence: 

A person convicted of the offense of deliberate homicide 

shall be punished by death . . ., by life imprisonment, 

or by imprisonment in the state prison for a term of not 

less than 10 years or more than 100 years, except as 

provided in 46-18-222. 

Section 45-5-102 (2), MCA. 

Gollehon's and the dissent's argument concerning ambiguity in 

statutory instructions is not well made. Montana's accountability 

statutes are not ambiguous: 

When accountabilitv exists. A person is legally 

accountable for the conduct of another when: . . . (3) 

either before or during the commission of an offense with 

the purpose to promote or facilitate such commission, he 

solicits, aids, abets, agrees, or attempts to aid such 

other person in the planning or commission of the 

offense. (Emphasis added.) 
Section 45-2-302 (3), MCA. The statute is clear that an offense 

must be committed before accountability attaches the responsibility 

for the crime to the accused. There is no question here that 

Gerald Pileggi was beaten to death with baseball bats. Further, 

sufficient evidence was presented at trial to show that both 

Gallehon and Turner struck Pileggi repeatedly with baseball bats. 

There is also no question that the jury convicted Turner and 

Gollehon of committing a deliberate homicide together. The fact 

that the jury could not assess the fatal blow to either person 

swinging a bat cannot, even with minimal logic, be the cause of 

reducing responsibility for another's death to ten years as the 

dissent suggests, 

We conclude that Gollehongs conviction of deliberate homicide 

by accountability means that 1) a deliberate homicide occurred and 

2) Gollehongs actions before or during the commission of the 

homicide made him liable as a principal actor in that homicide. We 

further conclude that the death penalty is applicable to deliberate 

homicide by accountability. 

We hold that the District Court did not err by sentencing 

Gollehon to death for the crime of deliberate homicide by 

accountability. 

VIII 

Did the District Court properly refuse to consider Gollehongs 

argument that death by hanging constitutes cruel and unusual 

punishment? 

Gollehon argues that his death sentence is to be carried out 

by hanging which is cruel and unusual punishment in contravention 
to the Eighth Amendment to the United States Constitution, The 

State argues that Gollehon was free to choose death by lethal 

injection and did not do so. 

The punishment of death must be inflicted by hanging 

the defendant by the neck until he is dead or, at the 

election of the defendant, by administration of a 

continuous, intravenous injection of a lethal quantity of 

an ultra-fast-acting barbiturate in combination with a 

chemical paralytic agent until a licensed physician 

pronounces that the defendant is dead according to 

accepted standards of medical practice. A defendant who 

wishes to choose execution by lethal injection shall do 

so at the hearing at which an execution date is set, and 

if he does not, the option to choose death by lethal 

injection is waived. 

Section 46-19-103(3), MCA. 

This Court has already settled the question raised by 

Gollehon. In State v. Langford (19921, 254 Mont. 44, 833 P.2d 

1127 this Court stated: 

Section 46-19-103 (3) , MCA, provides Langford the 

opportunity to elect between lethal injection and hanging 

as a method of execution. Clearly, Langford had ample 

opportunity to elect lethal injection over hanging, but 

chose not to do so. Accordingly, he rendered moot any 

claim concerning the constitutionality of hanging as a 

method of execution. 

Lansford, 254 Mont. at 46-47, 833 P.2d at 1129. 

Our examination of the transcript reveals that the court 

attempted to clarify Gollehonts options and that his attorney 

understood the consequences of silence as to choice: 

THE COURT: This is a continuation of cause DC-91-01, 

State of Montana versus William J. Gollehon. Mr. 

Gollehon, under Section 46-19-103, I am required to 

impose this sentence between 30 and 60 days, and 

likewise, that statute requires for you to make an 

election of whether you want to die by hanging or lethal 

injection. I will set sentencing for May 11th between 

the hours of 12:Ol a.m. and 6:00 a.m. Do you have a 

preference for the method? 
MR. DONAHOE: Your Honor, Mr. Gollehon with the respect 

to the election will stand mute, and I think that the 

statute requires that the finding be that he be hung. In 

that connection, Your Honor, I would bring to the Court's 

attention the fact that hanging may be unconstitutional 

as being cruel and unusual per se within the meaning of 

the 8th and 14th Amendment of the United States 

Constitution and under our own Montana Constitution. 

That issue in particular is being worked up I think 

through the Montana Courts right now and is now pending 

in the 9th Circuit Court of Appeals. I didn't bring it 

to the Court's attention before, obviously, because I 

didn't want to play my hand with regard to the sentence 

that the Court might be thinking about giving. In other 

words, I didn't want the Court to think that I thought 

that the death penalty was going to be imposed. 

THE COURT: There is no problem there, Mr. Donahoe. What 

I want understood is that the election is to be exercised 

at this time by Mr. Gollehon, and if Mr. Gollehon does 

not request lethal injection, in that event that death by 

hanging survives any challenge to it, that he is, in 

essence, making an election to die by hanging. If that 

is understood, that is all. You are remanded to the 

custody of the Sheriff. 

Sentencing hearing transcript March 16, 1992. 

It is clear that both Gollehon and his counsel understood that 

if Gollehon chose not to speak in answer to the court's question 

concerning method of execution, he waived his right to election of 

methods. Having been given a choice and yet waiving the 

alternative of lethal injection, Gollehon's arguments concerning 

cruel and unusual punishment by hanging are moot and will not be 

considered further. 

Should this Court uphold Gollehon's death sentence on 

automatic review? 

This Court is charged pursuant to 5 46-18-310(3), MCA, with 

determining whether the death sentence imposed in any given case 

"is excessive or disproportionate to the penalty imposed in similar 
cases, considering both the crime and the defendant.1e Section 46- 

18-310(3), MCA. Therefore, at Gollehon's request and pursuant to 

our responsibility we consider and compare all of the following 

cases, as we did in Turner, in which the death penalty was or could 

have been imposed: 

State v. Langford (l99l), 248 Mont. 420, 813 P. 2d 936; 

State v. Kills On Top (Vern) (lggO), 243 Mont. 56, 793 

P.2d 1273; State v. Kills On Top (Lester) (l99O), 241 

Mont. 378, 787 P.2d 336, cert denied, 111 S.Ct. 2910 

(1991); State v. Dawson (1988), 233 Mont. 345, 761 P.2d 

352; cert. denied, 492 U.S. 910 (1989) ; State v. Keefe 

(1988), 232 Mont. 258, 759 P.2d 128; State v. Keith 

(1988), 231 Mont. 214, 754 P.2d 474; State v. Smith 

(l985), 217 Mont. 461, 705 P.2d 1087, cert. denied, 474 

U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986), habeas 

corpus conditionally granted, 914 F.2d 1153 (9th Cir. 

1990) ; State v. Fitzpatrick (1980) , on remand, 186 Mont. 

187, 606 P.2d 1343, cert. denied, 449 U.S. 891 (l98O), 

reversed on other srounds, 869 F.2d 1247, (9th Cir.), 

cert. denied, 110 S-Ct. 349 (1989) ; State v. Coleman 

(l978), 185 Mont. 299, 605 P.2d 1000 (l979), cert. 

denied, 446 U.S. 970, (1980), reversed on other srounds, 

874 F.2d 1280 (9th Cir. l989), cert. denied, 110 S.Ct. 

349, (1989) ; State v. McKenzie (l976), 171 Mont. 278, 557 

P. 2d 1023, vacated on other srounds, 433 U.S. 905 (1977)~ 

- on remand, 177 Mont. 280, 581 P.2d 1205 (1978), vacated, 

443 U.S. 903 (1979), on remand, 186 Mont. 481, 608 P.2d 

428, cert. denied, 449 U.S. 1050 (1980), vacated in part 

- on other mounds, 842 F.2d 1525 (9th Cir.), cert. denied, 

488 U.S. 901 (1988). 

We have examined the above cases with regard to the gravity of 

the offenses, the brutality with which they were committed and the 

existence of any factors meriting leniency. 

We first note the heinous way in which ~ilegqi was killed. We 

also note that Gollehon was serving time for another deliberate 

homicide committed partially by the same brutal method. 

Like the District Court, this Court acknowledges that the 

abuse Gollehon suffered as a child of unloving and brutal parents 
cannot be divorced from Gollehonfs current behavior. However, also 

like the District Court we note an extensive history of criminal 

conduct with no remorse or compassion attached to such conduct. 

Gollehon seeks to have this Court consider the murders 

committed in the prison riot and the fact that none of the inmates 

involved were sentenced to death. While both cases involved 

inmates killing inmates, we will not consider the riot case because 

it is not before us. What is before us is a deliberately 

calculated killing of one human being by two others wielding 

baseball bats. 

We have considered this case in comparison to the 

aforementioned cases involving murder by beating, by beating and 

strangulation, by' strangulation and injection of unknown substance 

and by shooting, strangulation and stabbing. The facts of this 

case are no less heinous than the Kills On TOD cases in which the 

victim was beaten with a tire iron and a rock, was shot and then 

had his throat slit. We stated in State v. Kills On Top (1990), 

243 Mont, 56, 793 P.2d 1273, that Ig[tJhe homicide was senseless, 

calculated and brutal." Kills On TOD, 243 Mont. at 109, 793 P.2d 

at 1309. So too is the homicide before us. 

When considering proportionality we consider directives also 

from the United States Supreme Court: 

In Enmund v. Florida (l982), 458 U.S. 782, 102 S.Ct. 

3368, 73 L.Ed.2d 1140, the court held that the death 

penalty may be imposed if defendant killed, attempted to 

kill, or intended to kill or that lethal force be used. 

This determination as to defendant's culpability need not 

be made by a jury, but may be made at any point in the 

state criminal process. Cabana v. Bullock (1986) , 474 

U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704, overruled in 
part on other urounds; Pope v. Illinois (1987), 481 U.S. 

497, 504, 107 S.Ct. 1918, 1922, 95 L.Ed.2d 439, 447. 

also Tison v. Arizona (1987), 481 U.S. 137, 107 S.Ct. 

1676, 95 L.Ed.2d 127. 

Applying the rule of Enmund and Cabana, the 

sentencing court made the determination that defendant 

killed the victim. We conclude that the findings and 

conclusions by the sentencing court are properly within 

the provisions of the statutes and that there is no 

contradiction present casting doubt on the validity of 

the death penalty. Under our statutory provisions, the 

sentencing judge is clearly given the responsibility and 

power to make this determination. (Emphasis added.) 

State v. Kills on Top (1990), 241 Mont. at 404, 405, 787 P.2d at 

The evidence presented at trial reveals that Gollehon killed 

Pileggi in concert with Turner. Thus, we find that the Enmund rule 

is also satisfied. 

Having considered the evidence, prior Montana cases and 

directives by the United States Supreme Court and the Ninth 

Circuit, we independently conclude that Gollehon killed Pileggi in 

concert with Turner and that the death penalty is appropriate. 

We affirm the sentence of death imposed by the District Court. 

This case is remanded to the District Court for the determination 

of the date of execution in accordance with Montana statutes. 

Affirmed. 
sitting for ~u@ceDk. C. 

McDonough 
Justice Karla M. Gray, dissenting. 

I concur in the Court's opinion on issues 1 through 4 and 6. 

I dissent from the opinion on issues 5 and 7. 

With regard to issue 5, it is my view that the statutory 

aggravating circumstances which the District Court found to exist 

do not exist in this case as a matter of law. This Court's 

conclusion to the contrary rests primarily on its statement that 

the jury did & find Gollehon not guilty of deliberate homicide, 

but only found that he did not act alone during the crime. The 

Court then quotes the legally correct instruction on accountability 

in seeming support of the application of the two aggravating 

circumstances at issue here. The Court is in error. 

The Court's statement is incorrect and insupportable on the 

record before us. The record is clear that Gollehon was charged 

with, and acquitted of, deliberate homicide; he was charged in the 

alternative with accountability for deliberate homicide and 

convicted of that charge. 

Nor does the quoted instruction support the Court's 

conclusion. The instruction properly directed the jury that, to 

convict Gollehon of accountability for deliberate homicide, it need 

only find that a deliberate homicide was committed and that either 

or both defendants #'either before or duringH the commission of the 

offense solicited, aided or abetted the other in the "planning or 

commission of the offense." ~othing in the instruction required 

the jury to find that Gollehon committed the offense of deliberate 

homicide. 
To apply the aggravating circumstances at issue here required 

the District Court to make two determinations. First, the court 

had to find that the offense involved was deliberate homicide. 

There is no dispute about that fact. Second, however, the court 

had to find that the offense was committed by Gollehon. See 5 46- 

18-303(1) and (2), MCA. Given Gollehon's acquittal on the 

deliberate homicide charge and the instruction requiring only that 

the defendant solicit, aid or abet before or during the commission 

of the offense regarding the planning or commission of the offense, 

it is my view that the District Court could not make the second 

determination required for application of the aggravating 

circumstances at issue. This Court has stated that "without the 

finding of a statutory aggravating circumstance, the death penalty 

is inappropriate." State v. Keith (1988), 231 Mont. 214, 240, 754 

P.2d 474, 489. I conclude that the death penalty cannot be imposed 

here because no statutory aggravating circumstance exists. 

In addressing issue 7, the Court concludes that the District 

Court did not err as a matter of law in imposing the death penalty 

on Gollehon. It reaches this conclusion by focusing primarily on 

the nature of "accountability,~ rather than on Montana's sentencing 

statutes. The Court relies on Illinois cases interpreting the 

"parent" of our accountability statute; the Court does not, 

however, examine whether Montana's sentencinq statutes are adopted 

from Illinois or even whether they are similar to those in effect 

in Illinois so as to legitimize the use of the Stanciel and & 

cases in resolving this important issue which is truly a matter of 

life and death. For those reasons, and because it is my view that 
an appropriate analysis of Montana's sentencing statutes precludes 

application of the death penalty to Gollehon's conviction for 

accountability for deliberate homicide, I dissent. 

The death penalty may be imposed in Montana only under the 

limited circumstances provided by statute. Specifically, that 

sentence is available for the offenses defined in 88 45-5-102(a) 

and (b), 45-5-303, and 46-18-220, MCA. Only § 45-5-102, MCA, is 

relevant here. 

Section 45-5-102, MCA, describes when a person has committed 

deliberate homicide. Such an offense is committed when a person 

I'purposely or knowingly causes the death of another human being." 

Section 45-5-102 (1) (a), MCA. Gollehon was charged with, and 

specifically found not guilty of, this offense. Pursuant to § 45- 

5-102 (1) (b) , MCA, the offense of deliberate homicide for which the 

death penalty is available also includes the crime commonly 

referred to as "felony murder. " This offense is not at issue here. 

Thus, the death penalty available for these offenses pursuant to 8 

45-5-102(2), MCA, is not available here. 

Moreover, with regard to 5 45-5-102, MCA, the statute makes it 

clear that the legislature is aware of how to include what we might 

call offshoot'^ homicides--such as felony murder--in the definition 

of the offense of deliberate homicide for which the death penalty 

is available. The legislature specifically included felony murder; 

it did not include accountability for deliberate homicide. 

Other statutes also must be scrutinized to determine the 

applicability of the death penalty in this case. Section 45-2-302, 

MCA, describes when a person is legally accountable for the conduct 
of another. It is this accountability for deliberate homicide of 

which Gol1e:hon was convicted. That statute does not include any 

sentencing provision. Other statutes addressing indirect offenses, 

such as "conspiracy" and "attempt," do contain sentencing 

provisions. Those statutes, 55 45-4-102(3) and 45-4-103(3), MCA, 

essentially provide for the same sentence as the underlying 

offense. Again, it is clear that the legislature knows how to 

include sentencing cross-references when it desires and intends to 

do so. It did not do so with regard to accountability. 

The Montana legislature has provided a 'Ifall back" sentence to 

cover convictions for which it does not specify a penalty. Section 

46-18-213, NCA, mandates that when no penalty is otherwise provided 

for a felony, the sentencing court may sentence for any term not to 

exceed 10 years in the state prison, a fine not to exceed $50,000, 

or both. I conclude that this statutory penalty applies to 

Gollehon's conviction. 

The Court suggests that it is I, through my reasoning, who 

would allow the perpetrator of a heinous crime to be sentenced to 

a maximum of ten years' imprisonment. This is not so. The fact is 

that it is the leqislature's job--not mine or this Court's--to 

determine appropriate sentences for criminal offenders. The 

legislature has not clearly provided for the imposition of the 

death penalty under these circumstances. If its failure to do so 

is an unintended result of legislative oversight, the legislature 

can, and should, correct it. Absent such an action, a proper 

interpretation of the legislaturels intent as reflected in present 

sentencing statutes is that the death penalty is not available 
here. 

It is my view that the Court's conclusion on this issue 

violates the most fundamental canons of both judicial function and 

statutory interpretation. It has not interpreted the statutes at 

issue here in accordance with their plain meaning. Rather, it has 

inserted into the statutes a criminal sentence--the most severe and 

final sentence of all--not provided for by the Montana legislature, 

in direction contravention of 9 1-2-101, MCA. I cannot agree. 

The Court's approach also represents a radical departure from 

the rule of lenity which has been embraced by this Court in 

interpreting penal statutes and from its own controlling, and 

recent, precedent. In State v. Goodwin (1991), 249 Mont. 1, 813 

P.2d 953, and State v. Van Robinson (1991), 248 Mont. 528, 813 P.2d 

967, we affirmed our commitment to the following "classic rule of 

construction of criminal statutes" in construing sentencing 

statutes: 

Penal statutes are construed with such strictness as to 

safeguard the rights of the defendant. . . . [Plenal 

statutes are not to be extended in their operation to 

persons, things, or acts not within their descriptive 

terms, or the fair and clear import of the language used. 

Nothing can be read into penal statutes by implication. 

Goodwin, 813 P.2d at 966 (citation omitted). See also Van 

Robinson, 813 P.2d at 971, quoting Goodwin. I submit that the 

Court's analysis on this issue violates this classic rule by 

extending the death penalty to a person and acts not within either 

the terms or the fair and clear import of the language used by the 

Montana legislature. The death penalty will be imposed on Gollehon 

by implication. 

This Court also has agreed--until now--with the following 
United States Supreme Court articulation of the rule of lenity: 

First, as we have recently reaffirmed, "ambiguity 

concerning the ambit of criminal statutes should be 

resolved in favor of lenity." In various ways over the 

years, we have stated that "when choice has to be made 

between two readings of what conduct Congress has made a 

crime, it is appropriate, before we choose the harsher 

alternative, to require that Congress should have spoken 

in language that is clear and definite." This principle 

is founded on two policies that have long been part of 

our tradition. First, "a fair warning should be given to 

the world in language that the common world will 

understand, of what the law intends to do if a certain 

line is passed. . . . II Second, because of the 

seriousness of criminal penalties, and because criminal 

punishment usually represents the moral condemnation of 

the community, legislatures and not courts should defined 

criminal activity. This policy embodies "the instinctive 

distaste against men languishing in prison unless the 

law-maker has clearly said they should. " Thus, where 

there is ambiguity in a criminal statute, doubts are 

resolved in favor of the defendant. 

Goodwin, 813 P.2d at 967 (citations omitted). This classic and 

governing rule is applicable here and mandates a conclusion that 

the death penalty cannot be imposed on Gollehon. Yet, the Court 

totally ignores even the existence of the rule of lenity in 

analyzing the availability of the death penalty in this case. The 

Court's confusing references to Goodwin in the companion case of 

State v. Turner certainly provide no help in fostering clarity in 

this regard. We are left to wonder whether this case signals the 

death knell of the rule of lenity in Montana or, alternatively, 

whether the Court intends to continue to embrace that rule only 

where the underlying facts are less brutal and horrifying than 

those encompassing the death of inmate Pileggi 

I feel no sympathy for Gollehon. Indeed, the brutality of the 

acts upon which his conviction is based is surely beyond the 

understanding and even the imagination of every decent and rational 
human being. The fact remains, however, that the Montana 

legislature has not provided for application of the death penalty 

here. I cannot allow my horror over the circumstances of this 

crime to override my view of the result necessary here as a matter 

of law. I would remand this case to the District Court for 

resentencing. 

Justice Terry N. Trieweiler and Justice William E. Hunt, Sr., 

join in the foregoing dissent of Justice Karla M. Gray. 

Justice - 
October 20, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

MICHAEL DONAHOE 

Attorney at Law 

46 N. Last Chance Gulch 

Helena, MT 59601 

Hon. Joseph P. Mazurek, Attorney General 

Jennifer Anders, Assistant 

Justice Bldg. 

Helena. MT 59620 

Christopher G. Miller 

Powell County Attorney 

Powell County Courthouse 

Deer Lodge, MT 59722 

John P. Connor, Assistant Attorney General 

and Special Deputy Powell County Attorney 

215 N. Sanders, Justice Building 

Helena, MT 59620 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTm