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, 1993 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from a jury decision to convict appellant 

Douglas D. Turner (Turner) of deliberate homicide by 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 court did not err in denying a severance motion; and that the 

Montana statute providing for the imposition of a death penalty may 

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 District Court conducted a separate 

sentencing hearing for Turner in accordance with 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, Turner was sentenced to death by lethal injection under 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 in prison language. Pileggi worked 

in the high side kitchen, which employed twenty-five to forty-five 

inmates per shift, including the two men charged with his death. 

Prisoners assigned to the high side actively sought kitchen duty as 

it was considered good duty. 

In August of 1990, there was tension in the prison and this 

was very evident in the high side kitchen. Some of the inmates who 

worked in the kitchen, including Turner, did not like the fact that 

convicted sex offenders were working 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. Pileggi was a sex offender, and in August 1990, he was 

attacked by three individuals. Pileggi told a correctional officer 

that three inmates dragged him into the dish room and beat him up, 

but he refused to identify the perpetrators. Turner, Gollehon, and 

Daryl Daniels were terminated or dropped from kitchen work crews a 

few days before Pileggits death. 

On September 2, 1990, Pileggi went out into the high side 

exercise yard. The inmates on the high side were 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 exercise yard. During the exercise 

3 
time, the yard is routinely patrolled by two correctional officers. 

Two correctional officers, Beckerleg and Spangberg, were on 

duty that day. As they began walking around the track, they 

noticed that the softball game was breaking up and the inmates were 

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 the yard in" --this means that the inmates were 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 his head 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 injuries and said that she was 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. 

4 
Dr. Gary Dale, a forensic pathologist and a medical examiner 

at the State Crime Lab in Missoula, 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 the head 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 the breastbone. 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 inmates were gathered in the high 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. It was 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. Other witnesses 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. 

Turner denied participating in the homicide and 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 

the prison exercise yard on September 2, 1990, the day 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 that he suspected Gollehon intended to start a 

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 that he saw Turner 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 the ground immediately, whereupon Turner and Gollehon continued 

to deliver blows to Pileggigs head and trunk in an axe-chopping 

fashion. Armstrong testified that he saw each defendant deliver 

four or five blows, one after the other, and that these blows were 

as hard as could be delivered. After striking the many blows, 

Armstrong testified, Gollehon flicked his bat onto Pileggigs body. 

Armstrong did not remember what Turner did with his bat. Armstrong 

testified that as soon as the other inmates realized what had 

happened, there was a "mass exodus" from the softball field. 

6 
Armstrong 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 them up. Gollehon rolled up his pant 

legs to get through the patdown search when the yard was called in. 

Gollehonts pants 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. 

Inmate William Arnot was also an eyewitness to the beating and 

testified for the State at trial, Arnot was playing softball 

against Armstrong's team on the day of Pileggits death. He 

corroborated Amstrong's testimony that it was Gollehon who 

initially approached Pileggi with the bat in hand. 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 

sentencing hearing 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 exercise period. He testified that he 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 

7 
lying 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 Puliafica testified, without identifying the 

individual involved, that: 

I saw a guy -- I heard 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 came up behind him with 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 information while Turner was 

being held in maximum security pending further investigation of the 

crime. 

Turner raises several issues: 

1. Did the District Court err when it sentenced Turner to 

death for his conviction of accountability for deliberate homicide? 

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 on 
automatic 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 conduct which is an element of 

an offense if the conduct is either that of the person 

himself or that of another and he 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 a mental state described by the statute 

defining the offense, he causes another to perform the 

conduct, regardless of the legal capacity or mental 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 the planning or commission of 

the offense. However, a person is not so accountable if: 

(a) he is a victim 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) A person convicted of the offense of deliberate 

homicide shall be punished by death as provided in 46-18- 

301 through 46-18-310, by life imprisonment, or by 

imprisonment in the state prison for a term of not less 

than 10 years or more than 100 years, except as provided 
46-18-220. Sentences for certainoffenses committed 

in state prison -- death penalty. A person sewing a 

sentence of imprisonment in the 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) The capacity of the defendant to appreciate the 

criminality of his conduct or to conform his conduct to 

the requirements of law was substantially impaired. 

(5) The victim was a participant in the defendant's 

conduct or consented to the act. 

(6) The defendant was an accomplice in an offense 

committed by another person, and his participation was 

relatively minor. 

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

the crime, was less than 18 years of age. 

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

penalty. 

46-18-305. Effect of aggravating and mitigating 

circumstances. In determining whether to impose a 

sentence of death or imprisonment, the court shall take 
into account the aggravating and mitigating 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 circumstances sufficiently substantial to call 

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 for deliberate homicide, 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 homicide must be maintained, and 

that to do otherwise would contravene the legislature's intention. 
Further, Turner argues that the aggravating circumstances listed in 

5 46-18-303, MCA, do not include accountability for deliberate 

homicide and that it is only through merging 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. 

Turner emphasizes that he was acquitted of deliberate homicide 

and argues that the District Court, therefore, committed reversible 

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 court must 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 

to be strictly construed has no application to this 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, in which this Court held that the rule that statutes 

in derogation of common law must be strictly construed does not 

apply to penal code provisions. 
Insofar as 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 Goodwin has no application here. Here, 

the statutes are clear and unambiguous. The law of accountability 

is properly presented and understood. To interpret the statute as 

Turner does in his argument would frustrate the obvious legislative 

purpose of Montana's accountability statutes. Instead, this Court 

will construe the sentencing scheme for accountability the same way 

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 homicide by accountability is guilty 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 construction placed 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 

13 
fact 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 the victim numerous 

times in the head and body. In addition, other evidence placed 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 for which the actor assumes accountability. 

In B.D.C., a youth charged with criminal homicide by 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 to be arguing that when one is charged with 

14 
an offense by accountability, he or she is being charged 

with a separate or different offense. Accountability, 

however, is merely a conduit by which one is held 

criminally accountable for the acts of another. There is 

no separate offense, only the underlying offense which 

has been physically committed by another, but for which 

the defendant is equally responsible because of his or 

her conspiring or encouraging participation. 

B.D.C., 687 P.2d at 657. We note that courts of other states with 

similar statutory schemes which 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), 561 P.2d 776; State v. 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), 199 
Mont. 413, 424, 649 P.2d 1273, 1279. 

Following a joint trial, 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 the guilty plea was entered shall conduct a separate 

sentencing hearing to determine the existence or 

nonexistence of the circumstances set forth in 46-18-303 

and 46-18-304 for the purpose of determining the 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 circumstances enumerated in 55 46-18-303 and 46-18-304, 

MCA; (2) determines the presence of at least one of the aggravating 

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, Montana Is joinder 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 or 
transactions constituting an offense or offenses. Such 

defendants may be charged in one or more 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 for his 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 that he, 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 jurors and obviate the necessity of recalling 

witnesses. On the other hand, the trial court must weigh 

these benefits against the potential prejudice to a 

defendant which may 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 (5th Cir. 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 

llconsiderations of judicial economy exert strong pressure in favor 

of joint trials." Campbell, 615 P.2d at 198 (citing United States 

v. Dohm (5th Cir. 1979), 597 F.2d 535, 540, on rehlg 618 F.2d 1169 
The factors that provide the basis for the predisposition 

for joint trials include expedition ofthe administration 

of justice, reduction in the 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 States v. Brady (9th Cir. 

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 

defendant prove some prejudice or that a better chance of 

acquittal exists if separate trials are held. Rather, 

the defendant must show the prejudice was so great 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 (citations omitted). 

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 same offenses, which arose out of a single incident. The State 

relied on the same eyewitness testimony to convict both defendants. 

The eyewitness testimony was the State's strongest evidence of 

guilt, and such testimony would have been required at both trials 

if Turner and Gollehon had been tried separately. 

As the State's eyewitnesses were 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 in more 
than the usual 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 ~istrict Court 

concluded that: 

[Blecause of 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 the previous case, and I would anticipate 

this case would receive statewide coverage. Secondly, 

because this offense was committed at the Montana State 

Prison, most of the witnesses listed would be coming from 

the Montana State Prison, as inmates, and it would create 

an impossible situation to try and keep all the witnesses 

from discussing this case with any other witness until 

such time as the second trial has been concluded. And in 

my opinion, the interest of justice would be thwarted if 

we were to continue the case as the witnesses would all 

be tainted and suspect by the time the second trial came. 

Both defendants raised defenses of alibi or mistaken 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 Turnervs case. 

Nor does the fact that the State was able to produce physical 

evidence that implicated defendant 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 amount 
of 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 linked him directly to Pileggi's death. 

The fact that Turner and Gollehon were 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 

conflicted with that of the State's eyewitnesses, the jury resolved 

this conflict by its verdict. Moreover, the jury was 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 

conclude that 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 the point 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 

21 
0 

what is involved here. In Cruz, co-defendant's counsel elicited 

damaging testimony on cross-examination of a state's witness 

regarding the defendantfs involvement with organized crime and 

other criminal. activity. The Arizona Supreme Court noted that 

ll[t]his evidence would not have come out if appellant had 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 a mistrial or severed the cases. That is not what happened 

here. 

Here, Gollehon did not testify, and Gollehonis counsel did not 

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's motion for severance. 

Should Turnerls death 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 sentence he received from Judge Cox 

in Dawson County. At the time of that sentencing he was expecting 
390 years of incarceration without benefit of parole--in other 

words, life in prison. 

After sentencing, Turner was placed in the youthful offenders 

cube at Montana State Prison. There, he was housed with other 

youthful offenders and given an opportunityto participate in group 

activities and mental health treatment programs. In that 

environment he was given opportunities to correct his many 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 the youthful offenders 

cube. All of this information was 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 wherein he 

stated: 

No cause appearing why the sentence should not be 

imposed, it is hereby the judgment of this Court that you 

are guilty of the underlying offense, to wit: deliberate 

homicide by accountability. In attempting to decide what 

sentence to impose in this case, Mr. Turner, I spent a 

great deal of time going 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 

successful end. The duty of this Court is to assure that 

we protect the members of society that you are placed in 

with. Within our society we have different sub-groups of 

society. Yours being the society at the Montana State 

Prison. I have 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 time 
of 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 society who have 

gone through the same childhood you have gone through, 

and have gone on to be productive and very successful 

members of society. 

In balancing the two statutes, I find that there is 

no way short of imposing the death penalty that the 

society at the Montana State Prison can be incarcerated, 

and by your own statements here in court, you do not want 

to be placed in the Maximum Security Unit. 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 sentencing between 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 District Court informed defense 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 from his alleged involvement in 

the 1991 prison 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, 

any personal bias or prejudice, any fear of community objection, 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 the 
mitigating circumstances listed in 5 46-18-304, MCA, and found that 

"Turner's history of abuse, his alcohol use, his prison record, his 

efforts toward rehabilitation, his character and prospects for 

rehabilitation, as well 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 review proceeding, nor is there a legitimate basis 

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, this Court is required to determine 

"whether the sentence of 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 "the random or arbitrary imposition of the death 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 

25 
which 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. State v. 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 this Court has considered nine death penalty cases: 

State v. Langford (lggl), 248 Mont. 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), 231 Mont. 214, 754 P.2d 474; State 

v. Smith (1985), 217 Mont. 461, 705 P.2d 1087, cert. denied, 474 

U.S. 1073 (1986); State v. Fitzpatrick (1980), on remand, 186 Mont. 

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); State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 

1023, vacated on other grounds, 433 U. S. 905 (1977) , on remand, 177 

Mont. 280, 581 P.2d 1205 (1978), vacated, 443 U.S. 903 (1979), on 

remand, 186 Mont. 481, 608 P.2d 428 (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 6 
egregious than, the above-cited cases. Of those cases, the 

homicide in the Kills On Top cases is most similar in that it was 

a single homicide involving two defendants. 

In the Kills on Top cases, the victim was 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 

defendants decided that the victim must 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), 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 

1140, and Tison v. Arizona (1987), 481 U.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 7 
with reckless disregard for human life, and his death sentence does 

not violate the Eighth Amendment'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, 

Justices 
Justice 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 vl Gollehon, my dissent there is applicable here as well and 

is incorporated herein. 

In addition, 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 statutes beyond "[the statutels] descriptive terms, 

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 ''separate offenset1 concept without ever addressing precisely 

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 deliberate homicide. 

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. without much analysis, the Court concludes that Goodwin 

is inapplicable here. However, the Court also overrules some 

unspecified portion of that case "to the extent" it is in conflict 

29 
with § 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 our decision in Goodwin was 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, the members of the practicing bar, and this Court in future 

cases will know the answer. 

I would remand to the District Court for resentencing. 

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

join in the foregoing dissent of Justice Karla M. Gray. 
October 20, 1993 

CERTIFICATE OF SERVICE 

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

following named: 

Edmund F. Sheehy, Jr. 

Cannon & Sheehy 

P.O. Box 5717 

Helena, MT 59604 

William F. Hooks 

Appellate Public Defender 

Capitol Station 

Helena, MT 59620 

Won. Joseph P. Mazurek, Attorney General 

Jennifer Anders, Assistant 

215 N. Sanders, Justice Bldg. 

Helena, MT 59620 

Christopher G. Miller 

Powell County Attorney 

Courthouse 

Deer Lodge, MT 59722 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA