*1 STATE OF MONTANA, Respondent, Plaintiff v.
DOUGLAS D. TURNER,
Appellant.
Defendant
Nos. 92-157 and 92-161.
May 26,
Submitted on
1993.
Decided October
1993.
Rehearing
Denied Dec.
1993.
St.Rep.
1267.
For Edmund F. Cannon Appellant: Defendant and Sheehy, (argued). & Helena General, Racicot, Marc Respondent: Attorney
For Plaintiff and Anders, Att’y (argued); General John R. Con- Jennifer Assistant General, Miller, nor, Att’y Helena; Christopher G. Pow- Assistant Attorney, Lodge. County ell Deer Opinion of the
JUSTICE HARRISON delivered Court. jury Douglas appeal appellant This an from a decision to convict (Turner) by accountability in viola- D. Turner of deliberate homicide 45-5-102(l)(a), MCA. hold was proof tion of We that sufficient § conviction; that the trial did not produced at trial sustain court motion; a and that the Montana statute denying err severance penalty may of death be providing imposition applied for the a accountability. persons guilty theory found under of We affirm. 2,1990, a September day Pileggi, was the last of life of Gerald State beaten to death prisoner Pileggi at the Montana Prison. prison. grounds with bats on the exercise of the state Two baseball Gollehon, eventually charged were prisoners, and William alternative, homicide, jointly deliberate deliberate trial, jury by accountability. Following joint a found each homicide by charge guilty defendant the alternative deliberate homicide accountability. 27, 1992, February separate Court
On District conducted 46-18-301, MCA, hearing Turner in accordance with sentencing § miti- aggravating determine the or nonexistence of existence determining purpose for the what sentence gating circumstances mitigating that the imposed. Judge McLean determined should be aggravating sufficiently outweigh factors circumstances did leniency in On March Turner was sentencing. to warrant 46-19-103(3), injection lethal under MCA. sentenced to death § 16, 1992, May stayed Turner’s execution on The District Court appeal to this Court. pending *4 He inmate the Montana State Prison. was Pileggi
Gerald was an at the as high security prison, “high side of the or side” assigned to the high in the commonly prison language. Pileggi called in worked it is kitchen, twenty-five forty-five per inmates employed side death. Prisoners shift, including charged men with his the two duty actively sought kitchen as it was assigned high to the side duty. good considered prison in the and this was August there was tension high kitchen. Some of the inmates who
very evident in the side Turner, kitchen, like the fact that including did not worked working developed, there. As it there sex offenders were convicted or, according afoot to rid the kitchen of sex offenders was a movement Pileggi inmates, take the kitchen from the sex offenders. to the back offender, by August and in he was attacked three was a sex inmates Pileggi told a correctional officer that three individuals. up, and him but he refused to dragged him into the dish room beat Turner, Gollehon, Daryl identify perpetrators. the Daniels were terminated dropped days from kitchen work crews a few before Pileggi’s death. 2,1990, Pileggi high went out into the side exercise September
On yard. high spend The inmates on the side were allowed to time in the yard every game being A on played exercise afternoon. softball was walking the baseball diamond and inmates were around a track that time, yard. During yard circled the exercise the exercise routinely patrolled by two correctional officers. officers, duty Beckerleg Spangberg,
Two correctional were on track, day. they began walking they around the As noticed game breaking up moving was and the inmates were softball away the area. approached backstop from When officers they lying ground diamond an inmate on the the baseball saw backstop. they they his head When reached the inmate toward Pileggi. bloody, discovered it was His face was and the officers saw lying body. two baseball bats across his immediately prison procedure The officers initiated and “called the — go in” means that the inmates ordered to back into yard this were addition, their units. In the two correctional officers called for medical by given emer- Pileggi personnel, assistance. was removed medical treatment, treatment, and sent air but he gency to Missoula a Missoula hospital. died en route to they Pileggi testified that found he was unconscious
The officers when Pileggi severely to have been beaten about the head. appeared open, bleeding profusely. spilt His forehead had been alive but was blows, in, one of the one left side of his head was caved and as result of eyes popped of his had out. registered Bielby,
A nurse at the Carla testified to prison, recognize Pileggi’s injuries extent of and said that she was not able *5 Pileggi that severity injuries. of She testified to the his Pileggi due of blood in his breathing quantity due to the having great trouble was transferring him airway to to clear his before attempted throat. She infirmary. the examiner at the Dale, and a medical Gary pathologist
Dr. a forensic Missoula, Pileggi the performed autopsy an on Crime Lab in State multiple a of Pileggi that died as result following day. Dr. Dale concluded identify at least four and trunk. Dr. Dale was able to injuries to the head the head which caused the blows, top a massive blow to the of including collapsed the face which in; major to the left side of to cave a blow skull and the and caused the brain to tear left side of the forehead the entire upper the jaw to the left which caused both rupture; to a blow eyeball fracture; Dr. Dale and a blow to the breastbone. jawbones to and lower the shoulder area likely delivered to that another blow was testified underneath. tore the muscle Pileggi’s head and injuries top to the of Dale concluded that the Dr. tearing underlying they caused were fatal because left forehead could have been delivered any that of the blows brain. He testified the left forehead was that the blow to Pileggi standing, was but while lying ground. on the the victim was likely struck while high side gathered 250 inmates were approximately While death, to none Pileggi at the time was beaten yard prison in the exercise though beating even testify happened, to as to what was available It prisoners. most of those sight within happened to have appeared later, investigation by thorough months after not until several was information as officials, Armstrong D. volunteered that inmate J. prison killing. witnesses testified time of the Other happened at the to what unlike went on —not anything that they did not see or know about nothing, nothing, heard and said they saw monkeys, three the famous nothing. that he and testified in the homicide participating
Turner denied Tony Allen and Gollehon inmates with fellow playing horseshoes was Fifth Amendment his beating. Gollehon asserted time of the at the joint trial. testify at the right and did not in the softball playing that he was at trial Armstrong testified Pileggi’s death. 2,1990, day yard September exercise prison started, approached Gollehon shortly game after He testified Armstrong testified the least. used him which bat was him and asked Pileggi fight with intended to start suspected that he Gollehon going to that he was days earlier a few had stated because Gollehon he saw game, him that later He testified [Pileggi] up.” “mess Pileggi backstop Pileggi coming as confront behind Gollehon hand, had a in his and the two men around the track. Gollehon bat Armstrong of it. testified that he saw began struggle for control direction, coming opposite Turner around the track in the with a bat hand, Pileggi in his and that he saw Turner strike on the left side of Pileggi ground immediately, whereupon fell to the his face. Pileggi’s head and trunk and Gollehon continued deliver blows axe-chopping Armstrong in an fashion. testified that he saw each blows, other, defendant deliver four or five one after the and that striking as hard could After these blows were as be delivered. blows, testified, many Armstrong Gollehon flicked his bat onto Pileggi’sbody.Armstrong did not remember what Turner did his *6 Armstrong testified that as as the other bat. soon inmates realized happened, what had there was a “mass exodus” from the softball field. Armstrong waiting guards testified further that while to dis- down, Pileggi, sitting though cover he saw Gollehon he did not see gone. Armstrong where Turner had noticed that Gollehon had blood spatters pants. on his He told Gollehon that he had better cut off his pant legs up. up pant legs get or roll them Gollehon rolled his to through patdown yard search when the was called in. Gollehon’s during later a pants along were found shakedown of his cell with a blood smeared These items and towel. were wet had been folded and pillowcase. a placed under eyewitness
Inmate Amot was also an to the beating William and playing against testified for the State at trial. Arnot was softball Armstrong’s day Pileggi’s team on the He death. corroborated Armstrong’s testimony initially approached that it was Gollehon who Pileggi Pileggi get with the bat hand. Amot testified that he saw stmggled hit on the side of the face as he and Gollehon for control of approached Pileggi, the bat and that Turner then and stmck ablow to “dropped after which he like a tree.” Arnot estimated that Gollehon Pileggi and Turner each hit with the bats five or six times after he hit ground. jury during to the These facts were recited referred to sentencing hearing brought about Turner’s death sentence. witness, Greg Carpenter, Another inmate testified at trial that he yard writing during in the but was a letter in his cell was not period. He testified that he heard a commotion and looked exercise inmates, at nine to whom he out the window to see least twelve “sharks,” convening frenzy in a area. backstop described as dispersed, Carpenter body lying saw a on the After the inmates recognize any ground. He testified that he could not of the inmates. during of Turner his case-in- other inmates testified on behalf Six testified, identifying the individual Inmate Puliafica without chief. involved, that: — I I argument up I heard an and looked and saw guy
I saw a chest, Pileggi, poking lipping he him in the guy confronting was him, fight. him And that on for a trying provoke went off to they got argument into an that turned into a little while. And him with a and hit him somebody up And came behind bat scuffle. again And then hit him when he went down. in the head with it. got it the first individual that started went bat And then him. they beat playing that he horseshoes with Tony Allen testified
Inmate of the attack. Inmate David on the afternoon Turner and Gollehon in the horseshoe that he saw Turner and Gollehon DePue testified gardening nearby. Inmate Steven afternoon while he was pits that cellmate, appear Wall, testified that Turner did not nervous Turner’s clothing anything unusual about Turner or his nor did he observe September in on yard to the cell after the was called he returned when they admitted that did not reveal 1990. All of Turner’s witnesses in maximum being Turner was held any of this information while investigation of the crime. security pending further issues: Turner raises several it sentenced Turner to death for District Court err when
1. Did the homicide? accountability for deliberate his conviction of refusing grant Turner’s motion Court err 2. Did the District of trials? for severance *7 death on automatic uphold Turner’s sentence this Court
3. Should review? require in this case this Court to consider presented
The facts 45-5-102(2), 46-18-220, 45-2-301, -302, 46-18- following statutes: §§ convenience, -305, the reader’s relevant 303, -304, MCA. For forth below. statutes are set of these portions person of another. A Accountability for conduct 45-2-301. an offense if the which is an element of for conduct responsible is himself or that of another and person that of the is either conduct 45-2-302, provided as in for such conduct accountable legally he is or both. accountability legally exists. A person When
45-2-302. another when: the conduct of accountable
47 (1) defining by the statute having mental state described a conduct, regardless of offense, perform he another to causes person; other capacity or mental state of the legal (2) accountable; him or defining the makes so the statute offense (3) during of an either before or the commission offense aids, solicits, commission, promote or facilitate such he purpose planning abets, agrees, attempts person to aid other in the or such However, person a is not so account- of the offense. or commission if: able
(a) committed, unless the statute he is of offense victim otherwise; or defining provides the offense (b) offense, of he terminates his effort before the commission the of the or facilitate such commission does one promote following:
(i) wholly in such deprives prior his efforts effectiveness commission;
(ii) timely warning to law enforcement authori- gives proper ties; or
(iii) proper prevent makes the commission otherwise effort the offense.
45-5-102. Deliberate homicide.
(2) shall person A ofthe of deliberate homicide convicted offense 46-18-310, by provided through death as in 46-18-301 punished be by for a by imprisonment, imprisonment prison life or state years years, except than as term of not less than or more provided 46-18-222. for certain offenses committed
46-18-220. Sentences — serving A a sentence of prison penalty. person death state of at- prison of the offense in the state convicted imprisonment homicide, assault, aggravated aggravated tempted deliberate shall prison at the kidnapping while incarcerated state committed provided in 46-18- or life as imprisonment to death be sentenced through 46-18-310. cir- Aggravating Aggravating circumstances. 46-18-303. following: any are of the cumstances (1) homicide and was committed The offense was deliberate prison. the state serving imprisonment a sentence person *8 (2)The offense was deliberate by homicide and was committed a defendant who had previously been convicted of another deliber- ate homicide.
46-18-304. Mitigating circumstances. Mitigating circum- any stances are following:
(1) The defendant significant has no history 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 sub- stantial person. domination of another
(4) The capacity of the appreciate defendant to criminality of his conduct or to conform his conduct to the requirements oflaw substantially was impaired.
(5) participant The victim was a in the defendant’s conduct or consented to the act.
(6) The defendant accomplice was an in an offense committed by person, another participation and his relatively minor.
(7) defendant, The at the crime, time of the commission of the years was less than age.
(8) Any other fact that exists in mitigation of the penalty. 46-18-305. Effect of aggravating and mitigating circum- stances. In determining whether impose a sentence of death or imprisonment, the court shall take into account the aggravating mitigating circumstances enumerated in 46-18-303 and 46-18- impose 304 and shall a sentence of death if it finds one or more of aggravating circumstances and finds that there are no miti- gating sufficiently circumstances leniency. substantial to call for If the impose court does not a sentence of death and one of the aggravating exists, circumstances listed in 46-18-303 the court may impose imprisonment a sentence of any for life or for term authorized defining statute the offense.
I Did the District Court err when it sentenced Turner to death for his conviction of accountability for deliberate homicide? argues that the District Court committed reversible error
when it sentenced him accountability to death for his conviction of homicide, for deliberate him jury view of the fact that the found law, argues that under Montana homicide. He of deliberate guilty accountability for possible punishment not a penalty the death this Court to homicide, that he asks and it is on basis *9 deliberate his death sentence. reverse very specific are the death sentence statutes argues that
Turner argues He that under death sentences. crimes warrant as to which persons MCA, may imposed be 46-18-220, penalty the death § of deliberate Prison convicted in Montana State serving a sentence incarcerated in the homicide while attempted deliberate homicide or require penalty the death the statute does not prison, state but homicide. It is his accountability for deliberate convicted of persons sentencing, important distinction purposes that for position homicide and deliberate homi- accountability for deliberate between maintained, contravene and that to do otherwise would cide must be Further, argues aggravat- that the intention. Turner legislature’s 46-18-303, MCA, in do not include account- ing circumstances listed § only through merging homicide and that it is ability for deliberate aggravating that the court is able to find the existence of the statutes 46-18-303(1) (2), in and MCA. circumstances set forth § emphasizes acquitted that he was of deliberate homicide Court, therefore, committed reversible argues that District aggravating circumstances set forth in 46-18- applying § error 303(1) (2), and MCA. (1991), Mont. 813 P.2d
Turner relies on State v. Goodwin strictly must con- arguing penal that Montana’s statutes be ambiguities in favor of the accused. any strued and must be resolved clearly state legislature noted in Goodwin that the did not This Court statutory applied, and that the provisions the crimes to which certain interpret way must the statute in a most favorable to district court sought. against whom enforcement is person statutorily abrogated the com Legislature The Montana has penal construction so far as the code is mon law rule of strict 45-1-102(2), MCA, provides: Section concerned. strictly penal that statutes are to be
The rule of the common law All its are to application provisions has to this code. construed no of their terms with a view according import to the fair be construed justice. object promote effect its and to 148, 163, 24 (1933), P.2d Co. v.Abell 95 Mont. Supply See Continental 133, 137, held that the rule that statutes in which this Court apply does not strictly must construed derogation of common law be provisions. code penal Insofar as Goodwin 45-1-102(2), MCA, is conflict with it is § statute, overruled. Goodwin did not address that but instead involved ambiguities statutory obvious in a sentencing Thus, scheme. the rule announced in application Here, Goodwin has no here. the statutes are clear unambiguous. The accountability law of properly is presented and understood. Tointerpret the statute as Turner does in argument his would frustrate the legislative purpose obvious Instead, Montana’s accountability statutes. this Court will construe sentencing accountability scheme for way the same that the District Court did. response argument, to Turner’s argues, the State and we
agree, theory accountability legally respon finds Turner homicide, sible for the any crime of deliberate punishment properly imposed is for deliberate homicide is properly imposed for accountability.
We hold that these are not separate Aperson offenses. convicted of deliberate homicide accountability guilty of the substantive offense of deliberate homicide and must be sentenced for that offense *10 in 45-5-102(2), accordance with MCA. § 45-2-301, -302, -303, MCA,
Sections and are taken from the lan 5-1, 5-2, guage of and 5-3 of the Illinois Criminal §§ Code of 1961. In (1977), Murphy 307, 311, State v. 1103, 1105, 174 Mont. 570 P.2d this adopting state, Court stated that in a statute from another adopt we placed the construction by highest on the statute the court of the Accordingly, sister state. statutory 45-2-301, -302, the of ancestors §§ -303, MCA, and person accountability confirm that a convicted of for deliberate homicide is in fact convicted of deliberate homicide. Supreme
The Illinois
Court upheld a similar statute on account
ability
(1982),
People
245,
the case of
v. Ruiz
94 Ill.2d
68 Ill.Dec.
890,
148,
denied,
1112, 103
2465,
447 N.E.2d
cert.
462 U.S.
S.Ct.
77
(1983).
(1983);
denied,
reh’g
case,
L.Ed.2d 1341
In this two testified that both Turner and Gollehon struck numerous to the body blows head and of the de ceased; that Turner’s first with a felled blow baseball bat the de ceased; thereafter, and that both men struck the victim numerous addition, In body. placed times the head and other evidence the two men in the area where assault occurred. These facts were all
51
setting
jury
to the
by
proper instruction
jury,
with
considered
proves
appel-
the record
accountability,
of
and
principle
forth the
charged beyond
as
a reasonable doubt.
guilty
lant
216,
655,
(1984),
P.2d
this Court
In re B.D.C.
211 Mont.
687
accountability
a separate
is not
offense
explicitly established that
C.,
B.D.
accountability. In
actor assumes
from the crime for which the
by accountability alleged
youth charged
criminal homicide
with
youth
not
to the district court from
that his case could
be transferred
homicide.
charged
had
been
with criminal
court
he
because
contention,
B.D.C.,
rejected the defendant’s
B.D.C. charged by accountability, being separate he or she is with offense however, merely a Accountability, is conduit or different offense. criminally by one held for the acts of another. is accountable offense, only underlying has separate There is no offense which another, been committed but for which the defendant physically conspiring his or equally responsible is because of her encour- aging participation.
B.D.C.,
687 P.2d at 657. We note that courts
other states with
old
statutoiy
similar
schemes which refer
some instances
accessory, aiding
and
language
abetting,
accomplice,
have
by accountability
guilty
that a
person guilty
decided
(Alaska 1975),
v.
See Gordon State
crime itself.
P.2d
substantive
533
(Ariz. 1962),
denied,
899,
State v. Weis
25;
375
389
P.2d
cert.
U.S.
(Colo.
People
v.
(1967);
1977),
Larson
88
L.Ed.2d 221
S.Ct.
(Colo. 1977),
v.
v.
776;
People
Martin
State
815;
572 P.2d
561 P.2d
(Kan.
(Hawaii
v.
1978),
Shon
State Palermo
1963),
830;
P.2d
(Wash. 1977),
Baylor
v.
99;
State v.
State Oldham
718;
565 P.2d
P.2d
(Idaho 1968),
Earlier
referred to
Following convicted both defendants of by accountability. deliberate homicide The District Court held a separate sentencing hearing 46-18-301, in MCA, accordance with § provides: guilty pleads
When a defendant is found of or guilty to an offense for may which the sentence of death be imposed, judge who presided trial at the or before whom the guilty plea was entered a separate sentencing shall conduct hearing to determine the existence nonexistence or of the forth in circumstances set 46-18- 303 and purpose 46-18-304 determining sentence to imposed.... be 46-18-305, MCA,
Section permits impose the court a death (1) only sentence it: the aggravating where considers and mitigating (2) 46-18-304, in MCA; circumstances enumerated 46-18-303 and §§ presence determines aggravating of at least one of the (3) 46-18-303, MCA; in circumstances listed no mitigating § finds sufficiently circumstances are leniency. substantial to call for Here, beyond the District Court a found reasonable doubt that the 46-18-303(1) (2), in aggravating MCA, present. factors § were See (1985), 461, denied, State v. Smith 217 Mont. 705 P.2d cert. (1986). 1073,106 U.S. S.Ct. L.Ed.2d II
Did refusing grant the District Court err in Turner’s motion for severance of trials? trial,
At the joinder time of Turner’s Montana’s and severance 46-11-404, statute, (1989), provided part: MCA in relevant § (3) may charged Two or more be in the same defendants indict- they alleged ment if participated or information are to have constituting same series acts or transactions an offense or may charged offenses. Such defendants be or more one counts together separately, or and all of the need defendants not be charged in each count.
(4) prejudiced If it that a or the appears defendant state is a joinder prosecutions single charge of related or defendants or trial, by joinder separate or charges defendants for the court trials, defendants, may separate grant order a severance of provide any justice may relief as require. other It is that the District Court when it position Turner’s erred refused severance, grant him him a doing and that so it denied fair trial, of his did argues trial. Turner at the time Montana law
53 it would single prosecution when in a of defendants joinder a allow (amended MCA(1989) 1991), 46-11-404(4), defendant, § one prejudice considera- economy important remains an judicial although and that to a fair trial. right of the accused tion, secondary to the it must be (Kan. 1984), P.2d 848. 675 Pham State v. Van ways. him in two prejudiced that denial of severance argues Turner testimony for his his co-defendant Gollehon’s First, he could not elicit trial, defense second, put on Gollehon’s defense; Gollehon was when seriously Turner. prejudiced that in a manner was conducted right trial, his Fifth Amendment Gollehon asserted joint At the make him incrimination, of which was to the effect self against he could not alleges Turner Turner as a witness. unavailable testimony. credibility without Gollehon’s effectively defend his of the chance to basically deprived that he was contends Turner him a fair trial. Gollehon; therefore the court denied cross-examine Gollehon, friendship due to his close alleges also Turner overwhelming against Gollehon that the evidence jury could infer Turner, killing. argues He further he, involved in the implied that whereas, crime, him to the evidence linked physical that no cell contrast, bloody presented found in Gollehon’s pants the torn unfairly involvement; that evidence strong evidence of Gollehon’s denied. severance was prejudiced when trial, joint we have considering there should be In whether injudicial weigh must the State’s interest the district court held that right to a fair trial: economy against the defendant’s justice, conserve administration of criminal speed trials Joint jurors and obviate time, prospective on lessen the burden judicial hand, the trial On the other necessity recalling witnesses. prejudice to against potential weigh must these benefits court being tried with may arise as a result of his a defendant defendant. another 331, 44, 55-56, 338. The (1980), 618 P.2d 190 Mont.
State v. Strain
discretion of
is within the sound
grant
a severance
decision whether
533, 538,
P.2d
(1990),
788
241 Mont.
State v. Graves
the district court.
that of the
judgment for
not substitute its
311, 314. This Court will
107, 120-121, 615
(1980),
P.2d
189 Mont.
Campbell
v.
district court. State
(5th
903,
1979),
F.2d
Cir.
597
v. Cuesta
190,
(citing United States
198
(1979).
451,
964, 100
some or that a better acquittal chance of separate exists if Rather, are trials held. the defendant must prejudice show the great prevent so as to a fair high trial.... Given this proof standard of and the deference affordedthe judgment discretion ofthe trial court’s balancing prejudice against judicial economy,reversal ofa decision not to charges sever criminal granted. seldom (citations omitted). Campbell, 615 at P.2d Applying these us, considerations to the case before we find the District Corut did not abuse its discretion in denying Turner’s motion for severance. Both defendants were charged with offenses, the same single arose out of a incident. The State eyewitness relied on the same testimony to convict both defendants. eyewitness The testimony was the strongest State’s guilt, evidence of and such testimony would required have been at both if trials Turner and Gollehon had been tried separately. eyewitnesses
As the protective State’s custody inmates, were spe- security procedures cial had to be used for these witnesses as well as for all of the inmate witnesses who testified on behalf of Turner and Separate Gollehon. trials would have resulted in more than the usual judicial expense amount of security because of these measures. Fur- ther, noted, as the publicity District Court associated with the might first trial precluded have receiving second defendant from a fair trial. The District Court concluded that:
[Bjecause of the being nature of this trial committed at a State institution, going it is to publicity. receive statewide The second trial virtually impossibility would be an find to a well informed and jury educated that has not been tainted because of the publicity case, that was rendered in the previous and I would anticipate this this coverage. Secondly, because receive statewide case would Prison, most of committed at the Montana State offense was Prison, from the Montana State coming listed would be witnesses try to inmates, impossible it create an situation as and would any other discussing from this case with keep all the witnesses And trial concluded. until such time as second has been witness justice be if we were my opinion, the interest would thwarted would all be tainted to continue the case as witnesses time trial came. suspect by the the second identity defenses alibi or mistaken Both defendants raised support these defenses. There was no used the same witnesses hostility trial disagreement apparent between the defendants at testimony Turner’s was consistent regarding their version of events. witnesses, conflicting offered no that of his defense and Gollehon fact Turner’s case. Nor does the prejudiced that would have evidence produce implicated evidence physical that the State was able conclusively prejudice. establish defendant Gollehon disparity proof may be allow a great sufficient While cases, one against in certain the fact that the evidence severance against another damaging is more than the evidence codefendant ground one is not a for severance. Brady at that a certain amount of
Brady, 579 F.2d 1128. establishes every expected joint trial. prejudice is to be circumstantial Here, ignored of the simply all State’s *14 guilt, eyewit- the pointed that to his not to mention State’s evidence directly Pileggi’s linked him to death. The fact testimony, ness friends the peripheral that Turner and Gollehon were close was to guilt beyond that substantial number of facts established their reasonable doubt. directly
Although testimony the of the defense witnesses conflicted eyewitnesses, jury the resolved this conflict with that of the State’s Moreover, jury specifically by instructed the by its verdict. was of guilty that it must find defendant deliberate District Court each by not accountability, and that it was homicide or deliberate homicide guilt. enough to one on the basis of the co-defendant’s convict juries presumed that are to recognized principle It is a well of law (1954), U.S. given Opper v. United States 348 the law as them. follow 158, 165, 101, 109-110; Risley 84, 95, 99 L.Ed. McKenzie v. 75 S.Ct. (9th denied, 1988), 1525, 1533, 109 842 F.2d cert. U.S. Cir (1988). 250, 102 of the instructions and L.Ed.2d 239 In view S.Ct. trial, upon at there no which to conclude presented basis evidence simply that Turner was convicted he because was associated with and alongside tried Gollehon.
Turner relies on an Arizona case
that
proposition
for the
a defen-
by
may
prejudiced
dant
be
actual conduct of a co-defendant’s
(Ariz.
v.
State Cruz
point
required.
defense
that
to the
severance is
Cruz, however,
1983),
by
672 P.2d
474.
involved conduct
co-de-
analogous
fendant’s
that
in no way
counsel
was
to what is involved
Cruz,
here. In
testimony
co-defendant’s counsel elicited damaging
on
regarding
cross-examination of a state’s witness
the defendant’s
with
criminal
organized
activity.
involvement
crime and other
The
Supreme
Arizona
Court noted that “[t]his evidence would not have
appellant
[co-defendant]
come out if
had not been
tried
McCall
not
and it would
have been admissible in
state’s
at a separate
case
Cruz,
trial.”
Here, testify, did did Gollehon Gollehon’s counsel not elicit Turner, question- evidence of other crimes committed nor his was ing point finger Gollehon, to at away intended Turner and from was the case Cruz. as in
We hold that the Court err in refusing grant District did not to Turner’s motion severance.
Ill Should Turner’s death sentence be upheld automatic review? The record indicates that Turner entered the Montana State sixteen, age Prison at the of after of he was convicted deliberate taking homicide for the lives of three He to the people. came state prison of a he from Judge as a result sentence received Cox Dawson County. sentencing years At the time of that he was expecting — words, parole without in other incarceration benefit life prison. sentencing, placed youthful
After was offenders cube There, youthful at he housed Montana State Prison. was with other given an opportunity participate group offenders and activities and he programs. given mental health treatment that environment many life. opportunities problems change correct his his Instead taking advantage opportunities, ignore ofthose Turner chose them. *15 The to from requested record indicates that Turner be terminated the of in youthful cube. All this information was the hands of offenders sentencing Pileggi’s at time Turner judge the the was sentenced for death.
In assessing uphold whether this Court should Turner’s death sentence, sentencing judge’s we look to the conclusions wherein he stated: appearing why imposed, cause the not
No sentence should be it hereby judgment is the you guilty of this Court that are of the offense, underlying by accountability. to wit: deliberate homicide case, In attempting to decide what sentence to impose this Mr. Turner, spent great I of going reports deal time over the that have your concerning been submitted childhood the and efforts towards your rehabilitation that were made on behalf the State and all agencies. of its That includes numerous attempts drug at and rehabilitation, placement facilities, alcohol in different and all of proved those efforts have The they unsuccessful. main reason have proven you expended unsuccessful have one of energy not iota seeing any of programs towards those to a The duty successful end. of this Court is assure that we protect society the members of you placed that are in with. Within our society we have different society. sub-groups being society of Yours at the Montana State 46-18-303, I Prison. have studied aggra- section and find that the (1) (2) vating circumstances stated in and apply your sub sub your age case. I have considered at the time of commission of years the offense and find that you age, were 18 of age over the of offense, 18 at the time of the therefore, commission under, or properly under aggravation Section 303 for considera- Further, your tion. after at looking experiences childhood and the suffered, you I mitigation have find that the in Section 46-18-304 not apply does at this time. are There several members of our society gone through who you have gone same childhood have through, gone and have productive very be successful society. members balancing statutes, I way two find that there is no short imposing penalty society the death at the Montana incarcerated, by your
State Prison can be own statements here Court, you placed do want to be Security the Maximum Therefore, judgment Unit. it is you of this Court that be is, penalty, by death, sentenced to the ultimate punishment *16 the of sentencing and I'll between hours 12:01 a.m. and set May 6:00 a.m. on 7th of 1992. MCA, 46-18-112(l)(e),
In the District Court refused § accordancewith any part presentence statements as a of the impact to consider victim on hearing The District Court informed defense counsel at the report. going the court aggravating mitigating circumstances that was not recently arraigned charges the Turner had been on to consider fact that in alleged prison from involvement the 1991 riot: stemming his counsel], you I Sheehy regard, [defense Mr. in that will advise way relationship this any I will not consider the riot sentence. findings in the thirteen of and conclusions
Nothing pages media, opinion or persuaded public that the court was indicates prejudice, any community objection, fear of or any personal bias or might circumstances that have affected its sen any improper other 46-18-310, Therefore, MCA, tencing the factor has § decision. first of factor, aggravating circum finding The second of been satisfied. 46-18-303, MCA, stances, has been satisfied. The pursuant to also § mitigating each of the circumstances District Court also considered abuse, 46-18-304,MCA, history of and found that “Turner’s listed in § use, record, rehabilitation, his prison his alcohol his his efforts toward rehabilitation, all particular as well as other prospects character and outweigh pre the evidence mitigation, submitted does evidence in aggravation....” sented findings the District Court’s in this challenge
Turner does not on legitimate nor there a basis which proceeding, automatic review records, on challenged. They reports, are based findings the could be prosecution, Turner’s compiled in the course of 1987 and evaluations including testimony, Turner’s own trial adduced at trial evidence hearing aggravating mitigating at presented the the evidence entirely supports the District Court’s The record circumstances. circumstances, and this Court affirms those findings mitigating toas procedure. findings in this automatic review 46-18-310(3), MCA, required this Court is deter § Under disproportionate or sentence of death is excessive mine “whether the cases, considering both crime in similar penalty imposed against as check A factor serves review this and the defendant.” arbitrary penalty,” death imposition “the random against cruel and Eighth prohibition Amendment’s would violate 153, 206, (1976), 428 96 Georgia v. U.S. Gregg punishment. unusual
59 denied, 2909, 2940, 49 859, 893, 875, 97 reh’g S.Ct. L.Ed.2d 429 U.S. (1976). 197, S.Ct. 158 50 L.Ed.2d determining disproportionate, whether a death sentence is offense, brutality the gravity
this Court reviews of the with which committed, factors, if any, it was and the which led to a call for leniency, purpose making certain that there has been no State v. discriminatory sentencing judge. action on the of the part (Vern) (1990), Top Kills on 56, 1308, 109, 1273, Mont. P.2d 243 793 (1991). denied,_U.S._, 2910, 115 cert. 111 S.Ct. L.Ed.2d 46-18-310(3), MCA, Section requires court to “include in its decision a reference to those cases it similar took into consideration.”
Since 1973 this Court has considered nine death penalty cases: State
v. Langford
(Vern);
On Top
(1991),
Kills
420,
936;
248 Mont.
813 P.2d
(Lester) (1990),
Top
State v.
Kills On
336,
Mont.
787 P.2d
cert.
denied,_U.S._,
State v.
(1991);
S.Ct.
CHIEF JUSTICE McDonough concur. dissenting. GRAY
JUSTICE opinion from the Court’s that Turner was I dissent respectfully accountability death for his conviction properly sentenced to dif- Although the issue is addressed somewhat deliberate homicide. Gollehon, my ferently case of State v. companion here than in the *18 herein. incorporated as well and is applicable dissent there here MCA, 45-1-102(2), addition, and our I no conflict between § see this Court to construe require State v. Goodwin. Both decision in of their terms.” Section “according import to the fair penal statutes extending penal stat- 45-1-102(2), merely prohibits MCA. Goodwin terms, or the fair and clear descriptive “[the statute’s] beyond utes P.2d at 966. The Court’s decision language the used.” 813 import of the offense” standard; “separate it focuses on here meets neither for which addressing precisely how the offense concept without ever fairly language squarely fits within convicted death The fact is that our sentencing statutes. terms Montana’s not, penalty terms, their include accountability statutes do clear inclusion, legislative deliberate homicide. Absent the Court merely reads that offense into the statutes in violation of 45-1- § MCA, 102(2), cannot agree. I Goodwin.
Furthermore,
are,
best,
the Court’s
at
references to Goodwin
confusing.
analysis,
Without much
the Court concludes that Goodwin
However,
is inapplicable here.
unspeci-
Court also overrules some
portion
fied
of that
“to
case
the extent” it is in conflict
§with
45-1-
102(2), MCA. The
tell
precisely
Court does not
us
how the conflict
statute,
arises.
does
explain
Nor
the Court
how
effect at the
issued,
time our decision in
years
Goodwin was
can now —a
two
short
—later
require this Court to retreat
from
strong language
it
utilized in Goodwin
we
compelled
“are
to follow the classic rule
of construction of
regarding lenity
criminal statutes”
cited therein.
Goodwin,
If represents this case knell lenity death of the rule of Montana, I am importantly, however, so, saddened. More if this is Court ought say clearly to at courts, least so so that the district bar, practicing members of the and this Court in future cases will know the answer.
I would remand to the District Court for resentencing. JUSTICE TRIEWEILER join and JUSTICE HUNT foregoing dissent of JUSTICE GRAY.