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 CountyAttorney, 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 homicideby accountabilityand sentencinghim to death. We affirm. We consider the following issues on appeal: 1. Did the District Court errby allowing State's counsel and co-defendantTurnerSs counseltoquestion prospective jurorsduring voir dire about thepossibility of the deathpenalty being imposed

(knownas "death qualificationgl) ? 2. Did the District Court abuse itsdiscretionby refusing to dismiss or continue the trial because of an alleged discovery violation by the State? 3. Did theDistrictCourt abuse itsdiscretion 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 denyingGollehon's motion to declare Montana's death legislation illegal and unconstitutional? 5. Did theDistrict Court errby failingto rule, as amatter of law, that no aggravating circumstances existed? 6. Did the DistrictCourt errby failing to rule, as amatter of law, that mitigating factors existed and that such mitigating factors were substantial enough to call for leniency? 7. Did the DistrictCourt errby sentencingGollehontodeath 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 SpangbergandKarl Beckerlegweremaking a routinewalk around the track in the exerciseyard of theMontana State Prison. A softball game was inprogress. As they walked the track which circled the baseball diamond, the officersnoticed the players had begun to drift to the side of the yard. As they approachedthebackstop, they foundthebadly beatenbody of Gerald Pileggi. Two baseball bats lay by his body. Inmateshave 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 yardwas "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 theblood inhis throat. Theprison nurse

was unable to recognize that the prisoner was Pileggi. Pileggi died while being air-lifted to St. Patrick's hospital inMissoula. 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, includingamassive 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 tothe jaw which fractured the upper and lower jaws, a blow to the breastbone, and another to the shoulder. Pileggilsarms 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. Theblow to the left side of the skull collapsed the skull and pulpified the brain. Following the beating, Pileggivscell 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 Pileggilsdeath 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 andDaniels 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 Pileggitscalendar notes, Gollehon, Turner and Daniels were removed from their cells and their cells were searched. In Gollehon's cell, officials found a pair of prisonpants,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 remainingpart 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 inmaximum 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 Gollehonhad indicated thathe was going to Ifmess 

### him up." Armstrong also testifiedthathe 

### sawGollehon confront Pileggiwith

a baseball bat as Pileggi came around the track to the baseball field backstop.Armstrong noted thatthe two struggled for control of thebat just prior to

### Turneri s arrival 

### at the 

### scene. Armstrong saw 

### Turner hit Pileggi on the left side of his face,

### afterwhich Pileggi 

### fell to the ground. Armstrong testified he then sawTurner and Gollehon each deliver four or fivemore blows before throwing the bats onto Pileggils body. Amstrong testified that as soonas the other inmatesrealized 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. Hefurther testified thathe 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 theypulled away,he sawaman lying on the ground. He testified he could not recognize any of the inmates. Otherwitnesses testified that theywere playing with, orhad seen, Gollehon and 

### Turnerplaying horseshoes at 

### the time of the beating. Another witness testified that Armstrong was not on the softball field the day of Pileggi's deathbut was playing dominoes with him in the gym. OnJanuary 10,1991,an informationwas filed in PowellCounty 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 withdeliberate homicide or,inthealternative with deliberatehomicide by accountability. Prior to trial the State gave notice to defendants that it would seek the death penalty in the event of a conviction. Followinga joint trial, the jury found eachdefendant guilty of deliberate homicide by accountability. A separate sentencing hearing was held for Gollehon on February 27, 1992. TheDistrictCourt 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 exercisedhis option to choosedeathby lethal injection. Gollehon appealedand theDistrictCourt stayedGollehonls executionpending 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 errby allowingState'scounsel and codefendant Turner's counsel to question prospective jurors during voir dire about the possibility of the deathpenalty being imposed

(knownas "death qualification") ? Beforevoir direbegan,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. Gollehonlsargument 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 furtherargued that social science evidence proves thatwhen 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 thenmoved the court to severhis trial from Turner. The court denied the motion. Gollehon claims that under Montana law, if the jury panel knows that the deathpenalty could be imposedupon 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 toGollehon, suchquestioning of jurorsand 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. Gollehonhaspresented a constitutionalchallengepursuant 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 specificallyprovides for death qualificationof juriespursuantto 46-16-115(2)(h), MCA, which provides: (2) A 

### challenge for causemay be taken for all or any of the following reasons

# . .. (h) if the offense charged is punishablewith 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 deathpenalty 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), 391U.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 sentencecannot 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 thevenirepersonlsviews 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 towhether those experiences, opinionsorviewswill prevent or substantially impairtheperson'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). Gollehonpresents uswith social science studieswhich seemto 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. SeeM. 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 dueprocess rights. TheU.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 theU.S. SupremeCourt andMontana,many jurisdictions in this countryhave 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. Gollehonlsstatement that anymention of death as apenalty 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

casenor evenhints at suchapronouncement on death qualification. WhileGollehonls point concerningthebifurcation of theguilt and sentencing portions of Montana trials is noted, we do not conclude that such division automatically precludes the death qualificationprocess. Every defendant is entitled to a jury that will follow the courtlsinstructions and act impartially. If a juror, despite the instructions by the court, will refuse toconsider conviction because of his or her strongbelief 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 qualificationas 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'sdeath. According to Gollehon not all of these interviews had ensuing reports; nor were contents of interviews containing

### information inconsistent with thephysical evidence releasedto

### the defense. Gollehon argues that the circumstances attendant to Pileggilsmurder were common knowledge throughout the prison. Therefore,Gollehonargues

### that informationwithheld fromhim could have been 

### significant indiscrediting the State's two alleged eyewitnesses. According to

### Gollehon, the Statehad a legal obligation to provide him with the information gleaned from these interviews. 

### The State contends that sixmonths prior to 

### trial it 

### sent Gollehon a list 

### of filematerials 

### 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 disclosurepursuant to 8 46-15-322,MCA. 

### The State furtherargues 

### that Gollehonlsmotion 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 

### Gollehonlsclaimed discovery violation. Gollehonls motion todismiss is 

### in effect amotion 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'sdecision 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 suppressedby 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 theprosecutor'spossession 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 Ititis fair to speculate that at least some of the information garnered from these other witnesses was accurate." ThisCourt will not sanction such 1gspeculation.8* Gollehonwas 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 Statemet itsresponsibility in providing Gollehon with a list of its evidence. Therefore, we hold the

### DistrictCourt did not abuse itsdiscretion indenying 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 soughtthe court's permissionto introduce

a past employer of Arnotlswho 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 awitness's prior bad actswhich 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 involvesMontana Rules of Evidence 608 

### and 609: Rule 608. Evidence of character and conduct of witness. 

### (a) Opinion and reputation evidence of character. The credibilityof awitnessmaybe attacked or supported by evidence in the form of opinion or reputation, but subjectto these limitations: (1)

### theevidencemay refer onlytocharacter for truthfulness oruntruthfulness,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 instancesof the conduct of awitness, for thepurpose of attacking or supportingthewitness' credibility,maynot be proved by extrinsic evidence. 

### They 

### may, however, in thediscretionof the court,ifprobative of truthfulness or untruthfulness,be inquired into on cross-examination of the witness (I) concerning the witnesstcharacter 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 

### anaccused orby 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 thewitness 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. Statev. orris (1984)

### , 212 Mont. 427, 689 P.2d 243. 

### The record reveals that Gollehonlsattorney wished to question both a prior employer and Arnot himself on cross-examination concerning past acts of burglary and theft. The court correctlyrefused 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 Arnotlspast employer indicatingArnotlstheft of the employerls Mercedes constitutes extrinsic evidence of conductused for thepurpose of discreditingawitness and as such isprohibited 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, testimonyof previous instancesof 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 

### listsacts indicatingdishonesty: 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 proposedquestioningofArnot'sprior 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 intentionon thepart of the State [inasking about prior convictions] was to discredit the witness 

### by showing that he had 

### been engaged in crimes of intimidationand assault,and thatthe intimidationcrime involved guns. We further conclude that the 

### aim on the part of the State was ta improperly impugn the character of thedefendantand therebysuggestagreater 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 Ittobe 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 evidenceascomparedwith thepossibility ofprejudice. 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,

### ~dmissionof 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'sargument that the trier of fact was not presented with a crucial line of questioning of Arnot is totally speculative.

Wehold 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 

### courtlsrestrictions on cross-examinationof Arnot. We

### hold the ~istrict Court did 

### not abuse its discretion

### by refusing to allowGollehon 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? Gollehonargues

### that 

### this Court shouldonceagainconsider the constitutionality ofMontana's death penalty legislation. Gollehon contendsthat thepresent legislative schemedenieshim 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 arguesthatMontana's deathpenalty statutesviolate Article 11, Section 28 of Montana's Constitution which provides: Laws for the punishment of crime shallbe founded on the principles of prevention and reformation. Full rights are restoredby terminationof 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 anymention of thispunishment indicatesthe 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 deathpenalty, it would have repealed this piece of legislation. Further, and more important, if as Gollehon claims,thevote of the people of this State to retain the death penalty was somehownot representative,thepeoplewould have objected some time during the twenty-one years since the 1972 referendum. TheStaters argument that thisCourthaspreviously determined the constitutionality of the death penalty is well taken. Both Statev. Langford (1991), 248 Mont. 420, 813 P.2d 936 and Statev. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, have upheld the constitutionality of our deathpenalty statutes: We thereforeaffirm our holding inMcKenzie andhold 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 thatthe trial court improperly consideredthe aggravating circumstances as per 5 46-18-303(l) and (2), MCA. Gollehon contends thatboth aggravating factorscan onlybe 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 theapplicable case 

### law. Thispresents a question of law whichwe 

### reviewdenovo. U.S

# . v. Engesser 

### (9thCir. 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 committedby aperson serving a sentenceof imprisonment in the stateprison.(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 actionof thedefendant of apersonwho 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)convictedof theoffenseofdeliberatehomicide; 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. (Emphasissupplied.) Section 46-18-303,MCA. Gollehon objects to subsection 1and 2 as aggravating factors because he claims to have been acquitted of deliberate homicide. 

### The jury found Gollehon and Turner "notguiltyIiof 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 lesallyaccountable 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 suchcommissionsolicits,aids,

### abets,agrees

### orattempts to aid, the other defendant intheplanning or commission of the offense. If you find fromyour considerationof the evidence that all these elements have been proved beyond a reasonable doubt, thenyou should find thedefendants,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 thedefendants, 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 deliberatehamicide 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 didnot act aloneduring the crime. A chargeof deliberate homicideby accountabilityallowed the jury to convict both men involved in the deliberate homicide withouthavingtomake thedetermination 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 intendedto 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 robberswho 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 persistentview thathe

### was acquitted of deliberate homicide is error. Gollehonwas found not to have acted alone--he was convicted of acting with Turner in a common scheme to kill Pileggi. Gollehonlsargument that the 

### crime of "ac~ountability~~ is 

### a separate crime is not correct. The State charged accountabilityfor 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 evidencedid not have toprove thatRoy actually shot and killed Larry as Roy was charged and convicted of deliberate homicide through accountability 

# . . . The record,throughthe testimonyofUrsla, SherryandGinny, aswell asotherwitnesses,overwhelminglyindicatesthat 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 themitigating evidencehe 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, anddetermined aftergiving 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 enumeratedby way of appeal according to 5 46-18-310,MCA: (1)whether the sentence of deathwas 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 disproportionatetothepenalty imposed insimilarcases, consideringboth the crime and the defendant. The courtshall 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)Thevictim was aparticipant in thedefendant'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 

### inmitigation of the penalty. The court reviewed the first seven elements in detail noting thatno evidencehad been submittedby 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, andwith 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'smitigating 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. TheNinth circuit 

### in reviewingMontana's catch-all subsection to 5 46-18-304, MCA, states that as long as the court considers evidencepresented under this subsection "[tlheMontana courtswere entitled to conclude that the mitigating evidence 

## . 

# . . submitted under the catchall subsection 8 was not persuasive enough to grant

a sentence less than death.It Smith 

### v. McComick (9thCir. 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 fromGollehon'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 duringhis second incarceration, this time for deliberate homicide. The court concluded: Thedefendanthasdemonstratedthathe cannot livewithin the rulesof evenaprison societywithout taking another life. The court feels that he will again kill another human being if the opportunity presents itself. We note that the court specificallynoted that theprograms 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,citingGardnerv. Florida (1977),430U.S. 349, 361, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393. The record being completeconcerningthecourt'sanalyses, Gollehon'sconstitutional 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 thanweighing 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 "sufficientlysubstantialtocall 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. Wehold the District Court did not err by failing to rule,as

a matter of law, that mitigating factors existed and that mitigating factorswere substantial enough to call for leniency. VII Did theDistrict Court errby sentencing Gollehon to death for the crime 

### of deliberate homicide by accountability? Gollehon argues that it isnot legallypermissible 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 theperson againstwhom the enforcement is sought, The Statearguesthatdeliberatehomicideby accountability is not a separate crime 

### from that of deliberate homicide. According to the State, conviction of any felony I1byaccountabilityw carries with it the sentence for theunderlying felony. Further,the State contends that 5 45-1-102(2), MCA, dictates that all penal provisionsbe construedaccording 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 31states that Gollehon was specifically found not guilty of deliberate homicide and cannot, therefore, be sentenced todeath. 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 simplydid 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-shootwhomicide. 

### It is a connectionprovided by our legislaturethat gives courtsand juries

away 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 eitherparticipated in a communal crime or aided,abetted another,



### or planned the crime. Thedissent refersto 5 45-5-102,MCA,which inpertinent 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; (Emphasissupplied.) 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 emphasizethat 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 Gollehonhasmet 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 cannotbe attributedto 

## oneperson, no person involved can ever getmore than tenyears 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 thanmaking all those responsible fora crimepay the sameprice. 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 IllinoisCriminal 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 inMontana) under the theory of accountability. Peoplev. Stanciel (Ill. 1992), 606N.E.2d 1201; Peoplev. Ruiz (Ill. 1982),



### A chargebased upon accountability must necessarily flow fromtheprincipal crimeat issue. Accountability isnot in and of itself a crime, but rather a method through which a criminal convictionmay be reached. Simply,the statute is a statement of the principles of accessoryship. Stanciel, 606 N.E.2d at 1209. Thisreasoning isno differentthan our own reasoning inprior

cases: B.D.C.'s challenge on this ground has no basis in law. B.D.C. seems to be arguing thatwhen 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 encouragingparticipation. Matter of B.D.C. (1984), 211Mont. 216, 220-21, 687 P.2d 655, 657. BothGollehonandTurner were convicted ofdeliberatehomicide 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 stateprison 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 notwell made. Montana's accountability statutes are not ambiguous:

When accountabilitv exists. A 

### person is legally accountable for the conduct of another when: 

# . . . (3) 

### eitherbefore orduring the commission of an offensewith thepurpose topromote 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 attachestheresponsibility 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 repeatedlywith 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 deliberatehomicide by accountabilitymeans that 1) 

### a deliberatehomicide occurred and 2) Gollehongsactions before or during the commission of the homicidemade him liable as aprincipal actor in thathomicide. We further conclude that thedeath penalty isapplicabletodeliberate 

### 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 Courtproperly 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 contraventionto 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. Thepunishment of deathmustbe inflictedby hanging the defendant by the neck until he is dead or, at the election of the defendant, by administration of a continuous, intravenousinjectionof a lethalquantityof 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 executionby lethal injection shall do so at the hearing atwhich 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 electbetween lethal injectionandhanging 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 Gollehontsoptions 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 dieby hanging or lethal injection. Iwill 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 thathebe hung. In that connection,YourHonor, Iwould bring to theCourt's attention the fact that hanging may be unconstitutional as being cruel and unusual per sewithin 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 isnoproblem there,Mr. Donahoe. What Iwantunderstood is that the election is tobe exercised at this time by Mr. Gollehon, and if Mr. Gollehon does not request lethal injection,in thatevent thatdeathby 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 isclear thatboth Gollehonandhis counsel understood that if Gollehon chose not to speak in answer to the court's question concerningmethod 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 "isexcessive or disproportionateto thepenalty imposed in similarcases, consideringboth the crime and the defendant.1eSection 46- 18-310(3), MCA. Therefore, at Gollehon's request and pursuant to our responsibility we consider and compare all of the following cases, aswe did inTurner, 

### inwhich the deathpenalty 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); Statev. 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)

## ,onremand, 186Mont. 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, 446U.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), 171Mont. 278, 557 P.2d 1023,vacated

## on other srounds,433U.S. 905 (1977)~ on remand, 177Mont. 280, 581 P.2d 1205 (1978), vacated, 

### - 443 U.S. 903 (1979),

## onremand, 186 Mont. 481, 608 P.2d 428, cert. denied, 449 U.S. 1050 (1980), vacated

### inpart on othermounds, 842 F.2d 1525 (9thCir.), cert. denied, 

### - 488 U.S. 901 (1988). We have examined the above caseswith regard to the gravity of the offenses, the brutality with which they were committed and 

### the existence 

### of any factorsmeriting leniency. We firstnote theheinousway inwhich ~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 parentscannotbe divorced fromGollehonfs currentbehavior. 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,wewill not considerthe riot casebecause 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'strangulationand 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: InEnmundv. Florida (l982), 458U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, the court held that the death penaltymay be imposed 

### if defendant killed,attempted to kill,

### or intended to kill or that lethal force be used. Thisdeterminationastodefendant'sculpabilityneednot 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 inpart on otherurounds; Popev. Illinois (1987), 481U.S. 497, 504, 107 S.Ct. 1918, 1922, 95L.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 conclusionsby 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 statutoryprovisions, the sentencing judge is clearlygiven the responsibilityand power to make this determination. (Emphasisadded.) 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 concertwith 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 affirmthe sentence of death imposedby the DistrictCourt. 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. McDonoughJustice 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 circumstanceswhich 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 quotesthe legally correct instructionon 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 convictGollehon ofaccountability fordeliberate homicide, itneed only find that a deliberate homicide was committed and that either

or both defendants #'eitherbefore or duringHthe 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 issuehere 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 deliberatehomicide charge and the instruction requiring only that the defendant solicit, aid or abet before

## or during the commission of the offenseregarding theplanning

### 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 thedeathpenalty cannotbe 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 thenatureof "accountability,~ ratherthanonMontana'ssentencing statutes. The Court relies on Illinois cases interpreting the "parent" of our accountability statute; the Court does not, however, examine whether Montana's sentencinq statutesare 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 thatan appropriate analysis of Montana'ssentencing statutesprecludes 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 "felonymurder." This offense isnot at issue here. Thus, the death penalty available for these offensespursuant to 8 45-5-102(2), MCA, is not available here. Moreover,with regard to 5 45-5-102,MCA, the statutemakes it clear that the legislature is aware of how to include what we might call offshoot'^ homicides--suchas felonymurder--in thedefinition of the offense of deliberate homicide for which the death penalty is available. The legislature specifically included felonymurder; it did not include accountability for deliberate homicide. Other statutes also must be scrutinized to determine the applicability of thedeath penalty in this case. Section 45-2-302, MCA,describeswhen aperson is legallyaccountable for the conductof another. It is this accountability for deliberate homicide of which Gol1e:honwas convicted. That statute does not include any sentencingprovision. Other statutes addressing indirectoffenses, 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. TheMontana legislaturehasprovided a 'Ifallback" sentence to

cover convictions forwhich it does not specify apenalty. Section 46-18-213,NCA,mandates thatwhen nopenalty is otherwiseprovided fora felony,the sentencing courtmay sentence forany termnot to exceed 10years 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 tenyears' imprisonment. This isnot 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 interpretationof the legislaturelsintent 

### as reflected in present sentencing statutes is that the death penalty is not availablehere.It is my view that the Court's conclusion on this issue violates themost fundamental canonsof 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 severeand final sentence of all--notprovided forby theMontana 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 Statev. Van Robinson (1991),248Mont. 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 fairand clear import of the languageused. 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. Thedeathpenalty will be imposed onGollehon by implication. This Court also has agreed--until now--with the followingUnited 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." Invarious ways over the years, we have stated that "when choice has to be made between two readings of what conduct Congresshasmade 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." Thisprinciple is founded on two policies that have long been part of our tradition. First, "a fair warning shouldbe 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 thecommunity,legislaturesandnot courts should defined criminalactivity. Thispolicy 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 (citationsomitted). 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 deathpenalty in this case. The Court's confusing references to Goodwin in the companion case of Statev. 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 forGollehon. Indeed,thebrutality of the acts upon which his conviction is based 

### is surely beyond the understandingand even the imaginationof every decent and rationalhuman 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 overridemy view of the result necessary here as amatter of law. 

### I would remand this case to the District Court for resentencing.

JusticeTerry N. Trieweiler and JusticeWilliam E. Hunt, Sr., join in the foregoing dissent of Justice Karla M. Gray.

Justice 

# -October20, 1993 CERTIFICATEOFSERVICE Iherebycertifythat thefollowingorderwas sentby United Statesmail,prepaid, tothe followingnamed:

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