No. 92-157 and 92-161 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

-vsDOUGLAS D. TURNER, Defendant and Appellant.

APPEAL FROM: District Court of the Third Judicial District, In and for the County of Powell, The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD: For Appellant: Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, Montana (argued)

For Respondent: Hon. Marc Racicot, Attorney General Jennifer Anders, Assistant Att'y General (argued) John R. Connor,Assistant Att'y General, Helena, Montana Christopher G. Miller, Powell County Attorney, Deer Lodge,Montana

Filed: Submitted: May 26, 1993 Decided: October 20, 1993Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from a jury decision to convict appellant DouglasD. Turner (Turner)of deliberatehomicideby accountability in violation of 

### 5 45-5-102(1) (a), MCA. We hold that sufficient proof was produced at trial to sustain the conviction; that the trial courtdid not err indenying a severancemotion; and that the Montana statuteproviding for the imposition of a deathpenaltymay be applied to persons found guilty under the theory of accountability. We affirm. September 2, 1990, was the last day of the life of Gerald Pileggi, a prisoner at the Montana State Prison. Pileggi was beaten to death with baseball bats on the exercise grounds of the state prison. Two prisoners, Turner and William Gollehon, were eventually charged jointly with deliberate homicide, or in the alternative, deliberate homicide by accountability. Following a joint trial,a jury found each defendant guilty of the alternative charge of deliberate homicide by accountability. 

### On February 27, 1992,the DistrictCourt conducted a separate sentencing hearing for Turner in accordancewith 46-18-301,MCA, to determine the existence or nonexistence of aggravating and mitigating circumstances for the purpose of determining what sentence should be imposed. Judge McLean determined that the mitigating factors did not sufficiently outweigh the aggravating circumstances to warrant leniency in sentencing. On March 16,1992,Turnerwas sentencedtodeathby lethal injectionunder 

### 5 46- 19-103(3), MCA. The District Court stayed Turner's execution on May 16, 1992,pending appeal to this Court. Gerald Pileggi was an inmate at the Montana State Prison. He

was assigned to the high security side of the prison, or the "high sidett as it is commonly called inprison language. Pileggiworked in thehigh sidekitchen, which employed twenty-five to forty-five inmates per shift, including the two men charged with his death. Prisoners assigned to thehigh sideactively sought kitchenduty as it was considered good duty. In August of 1990, there was tension in the prison and this

wasvery evident in thehigh sidekitchen. Some of the inmates who worked in the kitchen,including Turner,did not like the fact that convicted sex offenderswereworking there. As it developed,there

was a movement afoot to rid the kitchen of sex offenders or, according to the inmates, to take back the kitchen from the sex offenders. Pileggiwas a sex offender,and inAugust 1990,he was attackedby three individuals. Pileggitold a correctional officer that three inmatesdragged him into the dish room and beat him up, but he refused to identify theperpetrators. Turner, Gollehon,and Daryl Daniels were terminated or dropped from kitchen work crews a few days before Pileggitsdeath. On September 2, 1990, Pileggi went out into the high side exercise yard. The inmates on the high sidewere allowed to spend time in the exercise yard every afternoon. A softball game was being played on the baseball diamond and inmates were walking around a track that circled the exerciseyard. During the exercise 3

### time, theyard isroutinelypatrolledby twocorrectional officers. Two correctional officers, Beckerleg and Spangberg, were on duty that day. As they began walking around the track, they noticed that the softballgame wasbreaking up and the inmateswere moving away from the area. When the officers approached the backstop on the baseball diamond they saw an inmate lying on the ground with his head toward the backstop. When they reached the inmate they discovered it was Pileggi. His face was bloody, and the officers saw two baseball bats lying across his body. The officers immediately initiated prison procedure and "called theyard in" --this means that the inmateswere ordered to go back into their units. In addition, the two correctional officers called for medical assistance. Pileggi was removed by medical personnel, given emergency treatment, and sent by air to Missoula for treatment, but he died en route to a Missoula hospital. The officers testified that when they found Pileggi he was unconscious and appeared to have been severely beaten about the head. Pileggi was alive but was bleeding profusely. His forehead had been spilt open, the left side of hishead was caved in, and as

a result of one of the blows, one of his eyes had popped out. A registered nurse at the prison, Carla Bielby, testified to the extent of Pileggi's injuriesand said that shewas not able to recognize Pileggi due to the severity of his injuries. She testified that Pileggi was having great trouble breathing due to the quantity of blood in his throat. She attempted to clear his airway before transferring him to the infirmary. 4Dr. Gary Dale, a forensic pathologist and a medical examiner at the StateCrime Lab inMissoula,performed an autopsy on Pileggi the following day. Dr. Dale concluded that Pileggi died as a result 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 thehead which caused the skull to cave in;a major blow to the left side of the face which collapsed the entire left side of the forehead and caused the brain to tear and the eyeball to rupture; a blow to the left jaw which caused both the upper and lower jawbones to fracture;and a blow to thebreastbone. Dr. Dale testified that another blow was likely delivered to the shoulder

area which tore the muscle underneath. Dr. Dale concluded that the injuries to the top of Pileggils head and left forehead were fatal because they caused tearing of the underlying brain. He testified that any of the blows could have been delivered while Pileggi was standing,but that the blow to the left forehead was likely struck while the victim was lying

on the ground. While approximately 250 inmateswere gathered in thehigh side exercise yard in the prison at the time Pileggi was beaten to death, none was available to testify as to what happened, even though the beating appeared to have happened within sight of most of those prisoners. Itwas not until several months later,after a thorough investigation by prison officials, that inmate J. 

### D. Armstrong volunteered information as to what happened at the time of the killing. Otherwitnesses testified that they did not see or know about anything that went on--not unlike the famous three 5

### monkeys, they saw nothing,heard nothing, and said nothing. Turnerdenied participating inthehomicideand testified that he was playing horseshoes with fellow inmates Tony Allen and Gollehon at the time of the beating. Gollehon asserted his Fifth Amendment right and did not testify at the joint trial. Armstrong testified at trial that he was playing softball in theprison exercise yard on September 2, 1990,

### theday of Pileggigs death. He testified that shortly after the game started, Gollehon approached him and asked him which bat was used the least. Armstrong testified thathe suspected Gollehon intended to starta fight with Pileggi because Gollehon had stated a few days earlier that he was going to "mess him [Pileggi]up." He testified that later in the game, he saw Gollehon confront Pileggi behind the backstop as Pileggi was coming around the track. Gollehon had a bat in his hand, and the two men began to struggle for control of it. Armstrong testified thathe sawTurner coming around the track in the opposite direction,with a bat in his hand, and that he saw Turner strike Pileggi on the left side of his face. Pileggi fell to theground immediately, whereupon Turner and Gollehon continued to deliver blows to Pileggigshead and trunk in an axe-chopping fashion. Armstrong testified that he saw each defendant deliver four or fiveblows, one after the other, and that theseblows were

as hard as could be delivered. After striking the many blows, Armstrong testified,Gollehon flickedhis bat onto Pileggigs body. Armstrong did not remember what Turnerdidwith hisbat. Armstrong testified that as soon as the other inmates realized what had happened, there was a "mass exodus" from the softball field. 6Armstrong testified further that while waiting for guards to discover Pileggi, he saw Gollehon sitting down, though he did not

see where Turner had gone. Armstrong noticed that Gollehon had blood spatters on his pants. He told Gollehon that he had better cut off his pant legs or roll themup. Gollehon rolled up his pant legs to 

### get through thepatdown search when theyardwas called in. Gollehontspants were found later during a shakedown of his cell along 

### with a blood smeared towel. These items were wet and had been folded and placed under a pillowcase. InmateWilliamArnot was also an eyewitness to thebeating and testified for the State at trial, Arnot was playing softball against Armstrong's team on the day of Pileggitsdeath. He corroborated Amstrong's testimony that it was Gollehon who initially approached Pileggiwith thebat inhand. Arnot testified that he saw Pileggi get 

### hit on the side of the face as he and Gollehon struggled for control of the bat and that Turner then approached and struck a blow to Pileggi, after which he Ifdropped like a tree." Arnot estimated that Gollehon and Turner each hit Pileggi with

### the bats five or six times after he hit the ground. These facts were 

### recited to 

### the 

### jury and referred 

### to during the sentencinghearing that brought about Turner's death sentence. Another inmate witness, Greg Carpenter, testified at trial that he was not in 

### the yard but was writing 

### a letter in his cell during the exerciseperiod. He testified thathe heard a commotion and looked out the window to see at least nine to twelve inmates, whom he described as tlsharks,M convening in 

### a frenzy in the backstop area. After the inmates dispersed, Carpenter saw a body 7lying on the ground. He testified that he could not recognize any of the inmates. Six other inmates testified on behalf of Turner during his case-in-chief. Inmate Puliaficatestified, without identifyingthe individual involved, that: I saw a guy

## -- Iheard an argument and I looked up and I saw a guy confronting Pileggi,he was poking him in the chest, lipping off to him, trying to provoke him to fight. And that went on for a little while. And they got into an argument that turned into a scuffle. And somebody cameup behind himwith a bat and hit him in the head with it. And then hit him again when he went down. And then the first individual that started it went and got a bat and they beat him. Inmate Tony Allen testified that he was playing horseshoes with Turner and Gollehon on the afternoon of the attack. Inmate David DePue testified that he saw Turner and Gollehon in the horseshoe pits that afternoon while he was gardening nearby. Inmate Steven Wall, Turner's cellmate, testified that Turner did not appear nervous nor did he observe anything unusual about Turner

or his clothing when he returned to the cell after the yard was called in on September 2, 1990. All of Turner's witnesses admitted that they did not reveal any of this informationwhile Turner was being held inmaximum security pending further investigationof the crime. Turner raises several issues: 1. Did the District Court err when it sentenced Turner to death for his convictionof accountability fordeliberatehomicide? 2. Did the District Court err in refusing to grant Turner's motion for severance of trials? 3. Should this Court uphold Turner's death sentence onautomatic review? The facts presented in this case require this Court to consider the following statutes: 

### 05 45-2-301, -302, 45-5-102(2), 46-18-220, 46-18-303, -304, and -305, MCA. For the reader's convenience, relevant portions of these statutes are set forth below. 45-2-301. Accountability for conduct of another. A person is responsible for conductwhich is an element of an offense if the conduct is either that of the person himself or that of another andhe is legally accountable for such conduct as provided in 45-2-302, or both.

45-2-302. When accountability exists. A person is legally accountable for the conduct of another when: (1) having amental statedescribed by the statute defining the offense, he causes another to perform the conduct,regardlessof the legal capacityormental state of the other person: (2) the statute defining the offense makes him so accountable; or (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 theplanning or commissionof the offense. However,aperson isnot so accountable if: (a) he is avictim of the offense committed, unless the statute defining the offense provides otherwise;or (b) before the commission of the offense, he terminates his effort to promote 

### or facilitate such commission and does one of the following: (i) wholly deprives his prior efforts of effectiveness in such commission; 

### (ii) gives timely warning to the proper law enforcement authorities; or (iii)otherwise makes proper effort to prevent the commission of the offense.

45-5-102. Deliberate homicide.



# ... (2) Aperson convictedof the offenseof deliberate homicide shallbe punished by death as provided in 46-18- 301 through 46-18-310, by life imprisonment, or by imprisonment in the stateprison for a term of not less than 10 years or more than 100years,except asprovided46-18-220. Sentences forcertainoffensescommitted 

### in state 

### prison 

# -- death 

### penalty. A person sewing 

### a sentenceof imprisonmentinthe state prison convicted of the 

### offense of attempted deliberate homicide, aggravated assault, 

### or aggravated kidnapping committed while incarcerated at the state prison shall be sentenced to death or life imprisonment as provided in 46-18-301 

### through 46-f8-310.

46-18-303, Aggravating circumstances. 

### Aggravating circumstances are any of the following: (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. .*-

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) 

### Thecapacityof 

### thedefendantto

### appreciatethe criminality of his conduct or to conform 

### his conduct to the requirements of law 

### was substantially impaired. (5) 

### Thevictimwas aparticipant inthedefendant's conduct 

### or consented to the act. (6) 

### The defendant was 

### an accomplice in an offense committed by 

### another person, and his participation was relativelyminor. (7) 

### Thedefendant,at the timeof thecommission of the crime,was less than 18 

### years of age. (8) 

### Any other factthat exists 

### inmitigation of the penalty.

46-18-305. Effect of aggravating and mitigating circumstances. 

### In determining whether to impose 

### a sentence of death or imprisonment,the court shall takeintoaccounttheaggravatingandmitigating circumstances enumerated in 46-18-303 and 46-18-304 and shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstancessufficientlysubstantialtocall for leniency. If the court does not impose a sentence of death and one of the aggravating circumstances listed in 46-18-303 exists, the court may impose a sentence of imprisonment for life or for any term authorized by the statute defining the offense.

Did the District Court err when it sentenced Turner to death for his conviction of accountability for deliberate homicide? Turner argues that the District Court committed reversible

error when it sentenced him to death for his conviction of accountability for deliberate homicide, in view of the fact that the jury found him not guilty of deliberate homicide. He argues that under Montana law, the death penalty is not a possible punishment for accountability fordeliberatehomicide,and it is on that basis that he asks this Court to reverse his death sentence. Turner argues that the death sentence statutes are very specific as to which crimes warrant death sentences. He argues that under 

### 5 46-18-220, MCA, the death penalty may be imposed on persons serving a sentence in Montana State Prison convicted of deliberate homicide or attempted deliberate homicide while incarcerated in the state prison,but the statute does not require the death penalty for persons convicted of accountability for deliberate homicide. It is his position that for purposes of sentencing, the important distinction between accountability for deliberate homicide and deliberate homicidemust bemaintained,and that to do otherwisewould contravene the legislature's intention.

### Further,Turnerarguesthattheaggravating circumstances listed in 5 

### 46-18-303, MCA, do not include accountability for deliberate homicide and that it is only throughmerging the statutes that the court is able to find the existence of aggravating circumstances set forth in 5 

### 46-18-303(1) and (2), MCA. Turneremphasizes thathewas acquitted ofdeliberate homicide and arguesthattheDistrictCourt,therefore,committedreversible

error in applying the aggravating circumstances set forth in 5 

### 46- 18-303(1) and (2), MCA. Turner relies on State v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953, arguing that Montana's penal statutes must be strictly construed and any ambiguities must be resolved in favor of the accused. This Court noted in Goodwin that the legislature did not clearly state the crimes to which certain statutory provisions applied, and that the district courtmust interpret the statute in a way most favorable to the person against whom enforcement is sought. The Montana Legislature has statutorily abrogated the common law rule of strict construction so far as the penal code is concerned. Section 45-1-102(2), MCA, provides: The rule of the common law that penal statutes are tobe strictly construedhasno applicationtothis code. All its provisions are to be construed according to the fair import of their terms with a view to effect its object and to promote justice. See Continental Supply Co. v. Abell (1933), 95

### Mont. 148, 163, 24 P.2d 133, 137, inwhich this Courtheld that the rule that statutes in derogation of common law must be strictly construed does not apply to penal code provisions.Insofaras Goodwin is in conflict with 

### 5 45-1-102(2), MCA, it is overruled. Goodwin did not address that statute, but instead involved obvious ambiguities in a statutory sentencing scheme. Thus, the rule announced in Goodwinhas no applicationhere. Here, the statutes are clear and unambiguous. The law of accountability isproperly presented and understood. To interpret the statute as Turner does inhis argumentwould frustratethe obvious legislative purpose of Montana's accountability statutes. Instead,this Court will construethesentencing scheme foraccountabilitythe sameway that the District Court did. In response to Turner's argument, the State argues, and we agree, that the theory of accountability finds Turner legally responsible for the crime of deliberate homicide, and any punishment that is properly imposed for deliberate homicide is properly imposed for accountability. We hold that these are not separate offenses. A person convicted of deliberate homicideby accountability isguilty of the substantive offense of deliberate homicide and must be sentenced for that offense in accordance with 

### 5 45-5-102(2), MCA. Sections 45-2-301, -302, and -303, MCA, are taken from the language of 

### 55 5-1, 5-2, and 5-3 of the Illinois Criminal Code of 1961. In State 

### v. Murphy (1977), 174 Mont. 307, 311, 570 P.2d 1103, 1105, this Court stated that in adopting a statute from another state,we adopt the constructionplaced on the statute by the highest court of the sister state. Accordingly, the statutory ancestors of 

### 5 45-2-301, -302, and -303, MCA, confirm that a person convicted of accountability for deliberate homicide is in 13fact convicted of deliberate homicide. The Illinois Supreme Court upheld a similar statute on accountability in the case of People v. Ruiz (Ill. 1982), 447 N.E.2d 148, cert. denied, 462 U.S. 1112 (1983); reh'g denied, 463 U.S. 1236 (1983). In that case, as here, the appellant denied he did any act causing the death of the deceased and that his conviction on the principle of accountability could not form the basis for imposition of the death sentence. See also People v. Stanciel (Ill. 1992), 606 N.E.2d 1201. In this case,two eyewitnesses testified that both Turner and Gollehon struck numerous blows to the head and body of the deceased; that Turner's first blow with a baseball bat felled the deceased; and that thereafter, both men struck thevictim numerous times in thehead and body. Inaddition, other evidenceplaced the two men in the area where the assault occurred. These facts were all considered by the jury, with proper instruction to the jury setting forth the principle of accountability, and the record proves the appellant guilty as charged beyond a reasonable doubt. In In re B.D.C. (1984), 211 Mont. 216, 687 P.2d 655, this Court explicitly established that accountability is not a separate offense from the crime forwhich the actor assumes accountability. InB.D.C., 

### ayouth charged with criminalhomicideby accountability alleged that his case could not be transferred to the district court from youth court because he had not been charged with criminal homicide. B.D.C., 687 P.2d at 657. We rejected the defendant's contention, stating: B.D.C. seems tobe arguing that when one is charged with 14an offenseby 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 theacts 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. B.D.C., 687 P.2d at 657. We note that courts of other states with similar statutory schemeswhich refer in some instances to the old language of accessory, aiding and abetting, and accomplice, have decided that a person guilty by accountability is guilty of the substantive crime itself. See Gordon 

### v. State (Alaska 1975), 533 P.2d 25; State 

### v. Weis 

### (Ariz. l962), 375 P.2d 735, cert. denied, 389 U.S. 899 (1967); People v. Larson (Colo. 1977), 572 P.2d 815; People

### v. Martin (Colo. 1977), 561P.2d 776; Statev. Shon (Hawaii 1963), 385 P.2d 830; State 

### v. Palermo (Kan. 19781, 579 P.2d 718; State v. Baylor (Wash. 1977), 565 P.2d 99; State v. Oldham (Idaho 1968), 438 P.2d 275. Earlier Montana statutes that referred to principals and accessories have been amended. Turner 

### was charged 

### with deliberate homicide under 45-5- 102(1) (a),MCA, (Count 

### I),and with accountability for deliberate homicide in violation of 5 45-2-302 and 5 45-5-102(1) (a), MCA,

(Count 11), as set forth in the amended information. The State charged alternative violations because it 

### was impossible to determine which defendant struck the blow that actually killed the victim. Charging accountability for deliberate homicide allowed the State to allege that the defendants aided and abetted each other in the murder of Pileggi. 

### See State 

### v. Duncan (1991)

### , 247 

### Mont. 232, 239, 805 P.2d 1387, 1392; State 

### v. Riley (l982), 199Mont. 413, 424, 649 P.2d 1273, 1279. Followinga jointtrial, the jury convicted both defendants of deliberate homicide by accountability. The District Court held a separate sentencing hearing in accordance with 5 46-18-301, MCA, which provides: When a defendant is found guilty of or pleads guilty to an offense for which the sentence of death may be imposed, the judge who presided at the trial or before 

### whom theguiltyplea

### was entered 

### shall conduct

### a separate sentencing hearing to determine the existence 

### or nonexistence of the circumstancesset forth in 46-18-303 and 46-18-304 forthepurpose ofdeterminingthe sentence to be imposed. 

## . . . Section 46-18-305, MCA, permits the court to impose a death sentence only where it: (1) considers the aggravating and mitigating circumstancesenumerated in 55 46-18-303 and 46-18-304, MCA; (2)determines thepresence 

### of at least one 

### of theaggravating circumstances listed in 5 46-18-303, MCA; and (3) finds no mitigating circumstances that are sufficiently substantial to call for leniency. Here, the District 

### Court found beyond a reasonable doubt that 

### the aggravating factors 

### in § 46-18-303(1) and (2), MCA,



### were present. See State v. Smith (1985), 217 Mont. 461, 705 P.2d 1087,cert. denied, 474 U.S. 1073 (1986).

Did the District Court err in refusing to grant Turnerts motion for severance of trials? At the time of Turner1 s trial,MontanaIsjoinder and severance 

### statute, § 46-11-404,MCA (1989),

### provided in relevant

### part: (3) Two or more defendants may be charged in the 

### same indictment 

### or 

### information if they are alleged 

### to have participated in the same series of acts ortransactions constituting an offense or offenses. Such defendantsmay be charged in one ormore counts together or separately, and all of the defendants need not be charged in each count. (4) If it appears that a defendant or the state is prejudiced by 

### a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial, the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require. It is Turner's position that the District Court erred when it refused to grant him a severance, and that in doing so it denied him a fair trial. Turner argues that at the time of his trial, Montana law did not allow a joinder of defendants in a single prosecution when it would prejudice one defendant, 5 46-11-404(4), MCA (1989) (amended 1991), and that although judicial economy remains an important consideration, it must be secondary to the right of the accused to a fair trial. State v. Van Pham (Kan. 1984), 675 P.2d 848. Turner argues that denial of severance prejudiced him in two ways. First, he could not elicit his co-defendant Gollehon's testimony forhis defense; second, when Gollehon was put on trial, Gollehon's defense was conducted in a manner that seriously prejudiced Turner. At the joint trial, Gollehon asserted his Fifth Amendment right against self incrimination,the effect of which was to make him unavailable to Turner as a witness. Turner alleges that he could not effectively defend his credibility without Gollehon's testimony. Turner contends basically that he was deprived of the chance to cross-examine Gollehon;therefore the court denied him a fair trial.

### Turner also alleges that due to his close friendship with Gollehon, a jury could infer that the overwhelming evidence against Gollehon implied thathe,Turner,was involved in the killing. He further argues that no physical evidence linked him to the crime, whereas, in contrast, the torn bloody pants found in Golfehonls cell presented strong evidence of Gollehonls involvement; that evidence unfairly prejudiced Turner when severance

### was denied. In considering

### whether there should be a joint 

### trial,we

### have held that the district court must weigh the State's interest in judicial economy against the defendant's right to a fair trial: Joint trials speed the administration of 

### criminal justice, conserve judicial time, lessen the burden on prospective jurorsand obviatethenecessityofrecalling witnesses. On 

### the otherhand, the trial courtmust weigh these benefits against the potential prejudice to 

### a defendant

### whichmay arise as a 

### result of his

### being tried with another defendant. State v. Strain (19801, 190 

### Mont. 44, 55-56, 618 P.2d 331, 338. 

### The decision whether to grant a 

### severance is within the sound discretion of the district court. State v. Graves (19901, 241 Mont. 533, 538, 788 P.2d 311, 314. 

### This Court will not substitute its judgment for that of the district 

### court. State v. Campbell (l98O), 189 

### Mont. 107, 120-121, 615 P.

### 2d 190, 198 

### (citing United States v. Cuesta (5thCir. 1979), 597 F.2d 903, 

### 919, cert. denied 444 U.S. 

### 964 (1979). In striking a balance between prejudice to a 

### criminal defendant and judicial economy, this Court has stated that llconsiderationsof judicial economy exert strong pressure in favor of joint trials." Campbell, 615 P.2d at 198 (citing United States



### v. Dohm (5thCir. 1979), 597 F.2d 535, 540, 

### on rehlg618 F.2d 1169The factors thatprovide thebasis forthepredisposition forjoint trials include expeditionoftheadministration of justice, reduction inthe congestion of trial dockets, conservation of judicial time, reduction of burden on citizens who serve on juries in terms of time and money sacrificed, and avoidance of the necessity of recalling witnesses who would otherwise have to testify only once. Camwbell, 615 P.2d at 198 (citing United Statesv. Brady (9thCir. 1978), 579 F.2d 1121, 1128, cert. denied, 439 U.S. 1074 (1979)). Because of these important considerations, the burden of showing prejudice rests upon the defendant. In showing prejudice, it is not sufficient that the defendantprove someprejudice orthata better chance of acquittal exists if separate trials are held. Rather, the defendant must show the prejudicewas sogreat as to prevent a fair trial. 

## . 

# . . Given this high standard of proof and the deference afforded the discretion of the trial court's judgment on balancing prejudice against judicial economy, reversal of a decision not to sever criminal charges is seldom granted. Camwbell, 615 P.2d at 198 (citationsomitted). Applying these considerations to the case before us, we find that the District Court did not abuse its discretion in denying Turner's motion for severance. Both defendants were charged with the sameoffenses,which arose out of a single incident. The State relied onthe sameeyewitnesstestimony to convict bothdefendants. The eyewitness testimony was the State's strongest evidence of guilt, and such testimonywould have been required at both trials if Turner and Gollehon had been tried separately. As the State's eyewitnesseswere protective custody inmates, special security procedures had to be used for these witnesses as well as for all of the inmate witnesses who testified on behalf of Turner and Gollehon. Separate trials would have resulted inmorethan theusual amount of judicial expense because of these security

measures. Further, as the District Court noted, the publicity associated with the first trial might have precluded the second defendant from receiving 

### a fair trial. 

### The ~istrictCourt concluded that: [Blecauseof the nature of this trial being committed at a State institution, it is going to receive statewide publicity. The second trial would be virtually an impossibility to find a well informed and educated jury 

### that has not been tainted because of the publicity 

### that was rendered in theprevious case,and Iwould anticipate this case would receive statewide coverage. Secondly, because this offense was committed at the Montana State Prison,most of thewitnesses listedwould be coming from theMontana State Prison,as inmates,and itwould create an impossible situationto tryand keep all thewitnesses from discussing this case 

### with 

### any other witness until 

### suchtime as the second trialhasbeen concluded. And in 

### my opinion,the interest of justicewould be thwarted if we were to continue the case as the witnesses would all be tainted and suspectby the time the second trial came. Both defendants raised defenses of alibi ormistaken identity and used the same witnesses to support these defenses. There was

no disagreement or apparent hostility between the defendants 

### at trial regarding their version of events. Turner's testimony was consistent with that of his defense witnesses, and Gollehon offered

no conflicting evidence that would have prejudiced Turnervscase. Nor does the fact that the State was able to produce physical evidence that implicateddefendant Gollehon conclusively establish prejudice. While a great disparity in proof may be sufficient to allow a severance in certain cases, the fact that the evidence against one codefendant 

### is more damaging than the evidence against another one is not a ground for severance. Bradv, 579 F.2d at 1128. Bradv establishes that a certain amountof prejudice is to be expected in every joint trail. Here, Turner simply ignored all of the State's circumstantial evidence that pointed to his quilt, not to mention the State's eyewitness testimony,which linkedhimdirectly to Pileggi's death. The factthatTurner and Gollehonwere close friends was peripheral to the substantial number of facts that established their guilt beyond a reasonable doubt. Although the testimony of the defense witnesses directly conflictedwith that of the State's eyewitnesses,the jury resolved this conflictby itsverdict. Moreover, the jurywas specifically instructed by the District Court that it must find each defendant guilty of deliberate homicide or deliberate homicide by accountability, and that it was not enough to convict one on the basis of the co-defendant's guilt. It 

### is a well recognized principle of law that juries are presumed to follow the law as given them. Opper v. United States

(1954), 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101, 109-110; McKenzie v. Risley 

### (9th Cir 1988), 842 F.2d 1525, 1533, cert. denied, 488 U.S. 901 (1988). In view of the instructions and the evidence presented 

### at trial, there is no basis upon which to concludethat Turner

### was convicted simply because 

### he

### was associated with and tried alongside Gollehon. Turner relies on an Arizona case for the proposition that 

### a defendant may be prejudiced 

### by the actual conduct of a codefendant's defense to thepoint that severance is required, State

v. Cruz (Ariz. 1983), 672 P.2d 470, 474, Cruz, however, involved conduct

### by co-defendant's counsel that 

### was in no way analogous to 210 what is involved here. In Cruz, co-defendant's counsel elicited damaging testimony on cross-examination of a state's witness regarding the defendantfsinvolvement with organized crime and other criminal. activity. The Arizona Supreme Court noted that ll[t]hisevidencewould not have come out if appellanthad 

### not been tried 

### with [co-defendant] McCall and it would not have been admissible in the state's case at a separate trial." Cruz, 672 P.2d at 475. The Arizona court reversed the defendant's conviction, ruling that the district court's admonitions were insufficient to cure the prejudice caused by 

### the introduction of this evidence, so that the district court should have immediately granted 

### amistrial or severed the cases. That is not what happened here.Here,Gollehondidnot testify,and Gollehoniscounsel didnot elicit evidence of other crimes committed by Turner, nor was his questioning intended to point the finger at Turner and away from Gollehon, as was the case in Cruz. We hold that the District Court did not err in refusing to grant Turner'smotion for severance.

Should Turnerlsdeath sentence be upheld on automatic 

### review? The record indicates that Turner entered the Montana State Prison at the age of sixteen, after he was convicted of deliberate homicide for taking the lives of three people. He came to the state prison as a result of a sentencehe received from Judge Cox 

### in Dawson County. At the time of that sentencing he was expecting390 

### years of incarceration without benefit of parole--in other words, life in prison. After sentencing,Turner was placed in theyouthful offenders cube at Montana State Prison. There, he was housed with other youthful offendersand given an opportunitytoparticipate ingroup activities and mental health treatment programs. In that environmenthewas given opportunitiesto correcthismany problems and change his life. Instead of taking advantage of those opportunities, Turner chose to ignore them. The record indicates that Turner requested to be terminated from theyouthful offenders cube. All of this informationwas in the hands of the sentencing judge at the time Turner was sentenced for Pileggi's death. In assessing whether this Court should uphold Turner's death sentence,we look to the sentencing judge's conclusions whereinhe stated: No cause appearing why the sentence should not be imposed, it ishereby the judgmentof this Court that you are guilty of theunderlying offense,towit: deliberate homicideby accountability. Inattemptingto decide what sentence to impose in this case, Mr. Turner, I spent a great deal of timegoing over the reports that have been submitted concerning your childhood and the efforts towards rehabilitation that were made on your behalf by the State and all of its agencies. That includes numerous attempts at drug and alcohol rehabilitation, placement in different facilities, and all of those efforts have proved unsuccessful. The main reason they have proven unsuccessful is you have not expended one iota of energy towards seeing any of those programs to a successfulend. Theduty of this Court is toassure that we protect themembers of society that you areplaced in with. Within our societywehave different sub-groups of society. Yours being the society at the Montana State Prison. 

### Ihave studied section 46-18-303, and find that the aggravating circumstances stated in sub (1) and sub (2) 

### apply to your case. I have considered your age at the time of the commission of the offense and find that you were 18 years of age, over the age of 18 at the timeof the commission of the offense, and therefore, under, or properly under Section 303 for aggravation consideration. Further, after looking at your childhood and the experiences you have suffered, I find that 

### the mitigation in Section 46-18-304 does not apply at this time. There are several members of our societywho have gone through the same childhood you have gone through, and have gone on to be productive and very successful members of society. Inbalancing the two statutes, I find that there is no way short of imposing the death penalty that the society at the Montana State Prison canbe incarcerated, and by your own statements here in court,

### youdo not want tobeplaced in theMaximum SecurityUnit. Therefore, it is the judgment of this Court that you be sentenced to the ultimate penalty, that is,punishment by death, and 1'11 set that sentencingbetween the hours of 12:Ol a.m. and 6:00 a.m. on May 7th of 1992. In accordance

### with § 46-18-112 (1)(e)

### ,MCA, the District Court refused to consider any victim impact statements as a part of the presentence report. The DistrictCourt informeddefense counsel at the hearing on aggravating and mitigating circumstances that the court was not going to consider the fact that Turner had recently been arraigned on charges stemming fromhis alleged involvement 

### in the 1991prison riot: Mr. Sheehy [defense counsel], in that regard, I will advise you that I will not consider the riot in any 

### way in relationship to this sentence. Nothing in the thirteen pages of findings and conclusions indicates that the court was persuaded by public opinion 

### or media, anypersonal bias orprejudice,any fear of communityobjection,or any other improper circumstances that might have affected its sentencing decision. Therefore, the first factor of § 46-18-310, MCA, has been satisfied. The second factor, a finding of aggravating circumstances,pursuant to 5 46-18-303,MCA, also has been satisfied. The District Court also considered each of 

### themitigating circumstances listed in 

### 5 46-18-304,MCA, and found that "Turner's history of abuse,his alcoholuse, hisprison record, his efforts toward rehabilitation, his character and prospects for rehabilitation,aswell as all other particular evidence submitted in mitigation, does not outweigh the evidence presented in aggravation 

# . . 

# . . II Turner does not challenge the District Court's findings in this automatic reviewproceeding, nor is there a legitimatebasis on which the findings could be challenged. They are based on records, reports, and evaluations compiled in the course of Turner's 1987 prosecution, evidence adduced at trial including Turner's own trial testimony, and the evidence presented at the hearing on aggravating and mitigating circumstances. The record entirely supports the District Court's findings as to mitigating circumstances, and this Court affirms those findings in this automatic review procedure. Under 5 46-18-310(3), MCA, thisCourt is requiredtodetermine "whether the sentenceof death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." A review of this factor serves as a check against "therandom or arbitrary imposition of thedeath penalty," which would violate the Eighth Amendment's prohibition against cruel and unusual punishment. Gregg v. Georgia (1976)

## , 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49 L.Ed.2d 859, 893, reh'g denied, 429 U.S. 875 (1976). In determining whether a death sentence is disproportionate, this Court reviews the gravity of the offense,the brutality with 25which it was committed, and the factors, if any, which led to a call for leniency, with the purpose of making certain that there has been no discriminatory action on the part of the sentencing judge. Statev. Kills on Top (Vern) (1990), 243 Mont. 56, 109,793 P.2d 1273, 1308, cert. denied, 111 S.Ct. 2910 (1991). Section 46- 18-310(3), MCA, requires the court to "include in its decision a reference to those similar cases it took into ~onsideration.~' Since 1973 thisCourt has consideredninedeath penalty cases: Statev. Langford (lggl), 248Mont. 420, 813 P.2d 936;Kills On Top LVern); State v. Kills On Top (Lester) (1990), 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, 491 U.S. 910 (1989): State v. Keith (1988), 231Mont. 214, 754 P.2d 474; State

v. Smith (1985), 217 Mont. 461, 705 P.2d 1087, cert. denied, 474 U.S. 1073 (1986);Statev. Fitzpatrick (1980),on remand, 186Mont. 187, 606 P.2d 1343, cert. denied, 449 U.S. 891 (1980); State v. Coleman (l978), 185 Mont. 299, 605 P.2d 1000, cert. denied, 446 U.S. 970 (1980);Statev. McKenzie (1976), 171Mont. 278, 557 P.2d 1023,vacated on other grounds,433U.S. 905 (1977)

## ,on remand, 177 Mont. 280, 581 P.2d 1205 (1978),vacated, 443 U.S. 903 (1979), on remand, 186Mont. 481, 608 P.2d 428 (1980),cert. denied, 449 U.S. 1050 (1980). All of these cases involved a death penalty imposed for the aggravated kidnapping and subsequent homicide of a victim. Although the circumstances surrounding the killings were different in those cases, the brutality and senselessness of the offense committed in this case is certainly comparable to, if not more 2 6egregious than, the above-cited cases. Of those cases, the homicide in the Kills On Top cases ismost similar in that it was

a single homicide involving two defendants. In theKills onTop cases,thevictimwas beaten to death with a pipe, a tire iron and then a rock following an all-night joyride during which the victim was forced to ride naked in the trunk of the car after the defendants had robbed him. Eventually, the defendantsdecided that thevictimmust die so that they would not get caught. Although Vern Kills On Top was not present when his brother Lester delivered the final fatal blows, he participated directly in many events that led up to the killing. This Court concluded that Vern Kills On Top "was a major participant in the felony and exhibited a reckless indifference to human life." 793 P.2d at 1308. As he met the culpability standard set forth in Enmund v. Florida (1982), 458U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140,and Tisonv. Arizona (1987), 481U.S. 137,107 S.Ct. 1676, 95 L.Ed.2d 127, his death sentence did not constitute cruel and unusual punishment, nor was it disproportionate to his crime. Here, Turner's conduct was significantly more culpable than that of Vern Kills On Top. The testimony of the State's eyewitnesses establishes that Turner was an active participant in the beating death of Gerald Pileggi. Turner struck the first blow which caused Pileggi to "drop[ 

### 1 like a tree." While Pileggi lay defenseless on the ground, Turner and Gollehon continued to beat him four to six times apiece with as much force as could be delivered. Thus, the evidence supports the conclusion that Turner killed,attempted to kill, intended to kill or at a minimum, acted 2 7with reckless disregard for human life, and his death sentence does not violate theEighthAmendment's prohibition of cruel and unusual punishment. We affirm the District Court's death sentence. Aggravating circumstances exist without question, and there are no mitigating circumstances which require leniency. 

### F,

JusticesJustice Karla M. Gray, dissenting.

I respectfully dissent from the Court's opinion that Turner



### was properly sentenced to death for his conviction of accountability for deliberate homicide. Although the issue is addressed somewhat differently here than in the companion case of State

### vlGollehon,my dissent there is applicable here as well and is incorporated herein. Inaddition, I see no conflict between 5 45-1-102(2), MCA, and our decision in State v. Goodwin. Both require this Court to construe penal statutes "according to the fair import of their terms. Section 45-1-102(2), MCA. Goodwin merely prohibits extendinq penal statutesbeyond "[the statutels] descriptiveterms,

or the fair and clear import of the language used.I1 813 P.2d at 966. The Court's decision here meets neither standard; it focuses

on the ''separateoffenset1 concept without everaddressingprecisely how the offense for which Turner was convicted fits squarely and fairly 

### within the language and terms of 

### Montana's sentencinq statutes. The fact 

### is that our death penalty statutes do not, 

### by 

### their clear terms, include accountability for deliberatehomicide. Absent legislative inclusion, the Court merely reads that offense into the statutes in violation of 5 45-1-102(2), MCA, and Goodwin. I cannot agree. Furthermore, the Court's references to Goodwin are, at best, confusing. withoutmuch analysis, the Court concludesthatGoodwin is inapplicable here. However, the Court also overrules some unspecified portion of that case "to 

### the extent" it 

### is in conflict 29with § 45-1-102(2), MCA. The Court does not tell us precisely how the conflict arises. Nor does the Court explain how the statute, in effect at the time ourdecision in Goodwinwas issued,can now--

a short two years later--require this Court to retreat from the strong language it utilized in Goodwin that we "are com~elled to follow the classic rule 

### of construction of criminal statutes" regarding lenity cited therein. Goodwin, 813 P.2d at 966-67. If this case represents the death knell of the rule of lenity in Montana, I am saddened. More importantly,however, if this is so, the Court ought to at least say so clearly so that the district courts, themembers of thepracticing bar, and this Court in future

cases will know the answer. I would remand to the District Court for resentencing.

JusticeTerry 

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

### October20, 1993 CERTIFICATEOFSERVICE I herebycertifythat thefollowingorderwas sentbyUnited Statesmail,prepaid, to the followingnamed:

EdmundF.Sheehy,

### Jr. Cannon&

### Sheehy P.O.Box 5717 Helena,MT 59604 William

### F.Hooks AppellatePublicDefender Capitol Station Helena,MT 59620

Won.Joseph P.Mazurek, AttorneyGeneral JenniferAnders,Assistant 215N. Sanders,JusticeBldg. Helena,MT 59620 Christopher

### G.Miller PowellCountyAttorney Courthouse DeerLodge, MT 59722

EDSMITH CLERKOF THESUPREME COURT STATEOFMONTANA