                      No.    92-156 and 92-231

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1993



STATE OF MONTANA,
           Plaintiff and Respondent,
     -v-
WILLIAM GOLLEHON,
           Defendant and Appellant.




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


COUNSEL OF RECORD:
           For Appellant:
               Michael Donahoe and Mark Yeshe, Helena, Montana
           For Respondent:
               Hon Joseph P. Mazurek, Attorney General, Jennifer
               Anders, Assistant, Helena, Montana; Christopher G.
               Miller, Powell County Attorney, Deer Lodge, Montana;
               John P. Connor, Assistant Attorney General and
               Special Deputy Powell County Attorney, Helena,
               Montana


                                           Submitted: May 26, 1993
                                             Decided: October 20, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.

     This is an appeal from a verdict and sentence from the Third
~udicialDistrict Court, Powell County, finding Gollehon guilty of
deliberate homicide by accountability and sentencing him to death.
We affirm.
     We consider the following issues on appeal:
     1 Did the District Court err by allowing State's counsel and
      .
co-defendantTurnerSs  counsel to question prospective jurors during
voir dire about the possibility of the death penalty being imposed
(known as "death qualificationgl)?

     2. Did the District Court abuse its discretion by refusing to
dismiss or continue the trial because of an alleged discovery
violation by the State?
     3 . Did the District Court abuse its discretion in refusing to
allow Gollehon to inquire into evidence of prior crimes committed
by one of the State's eyewitnesses?
     4.  Did the District Court err in denying Gollehon's motion to
declare Montana's death legislation illegal and unconstitutional?
     5. Did the District Court err by failing to rule, as a matter
of law, that no aggravating circumstances existed?
     6. Did the District Court err by failing to rule, as a matter
of law, that mitigating factors existed and that such mitigating
factors were substantial enough to call for leniency?
     7. Did the District Court err by sentencing Gollehon to death
for the crime of deliberate homicide by accountability?
     8.   Did the District Court properly refuse to consider
Gollehon's argument that death by hanging constitutes cruel and
unusual punishment?
     9. Should this Court uphold Gollehon's death sentence on
automatic review?
     While the opinion in State v. Turner, Cause Nos. 92-157 and
92-161, sets out the facts of the homicide at issue with great
detail, we briefly summarize the events of September 2, 1990.
Corrections officers Larry Spangberg and Karl Beckerleg were making
a routine walk around the track in the exercise yard of the Montana
State Prison. A softball game was in progress. As they walked the
track which circled the baseball diamond, the officers noticed the
players had begun to drift to the side of the yard.        As they
approached the backstop, they found the badly beaten body of Gerald
Pileggi.   Two baseball bats lay by his body.
     Inmates have exercise time from 1 p.m. to 2:15 p.m. and from
2:15 p.m. to 3:45 p.m.    Once in the exercise yard, inmates must
stay there until the period is over.   At the time of the beating,
250 inmates were in the exercise yard, including prison inmates

from the high security section of the prison, known as the
"highside.   After officers found Pileggi, the yard was "called in"
and inmates were searched. Nothing suspicious was found.
     Medical personnel were dispatched to the yard.    Pileggi was
still alive when taken from the yard but was having trouble
breathing because of all the blood in his throat. The prison nurse
was unable to recognize that the prisoner was Pileggi.     Pileggi
died while being air-lifted to St. Patrick's hospital in Missoula.
     An autopsy performed by Dr. Gary Dale, a State Medical
Examiner, revealed that Pileggi had died of multiple injuries to
the head and trunk.   Dr. Dale was able to identify at least four
blows, including a massive blow to the top of the head which caused
the skull to cave in and a major blow to the left side of the face
which collapsed the left side of the forehead and caused the brain
to tear and the eyeball to rupture. Also identified were a blow to
the jaw which fractured the upper and lower jaws, a blow to the
breastbone, and another to the shoulder.       Pileggils arms had
bruises which indicated a struggle had taken place.
     The blows to the brain were identified as fatal because they
tore the brain.   Dr. Dale testified that most of the blows could
have been delivered while Pileggi was standing but the blow to the
left side of the head was delivered while Pileggi was on the
ground. The blow to the left side of the skull collapsed the skull
and pulpified the brain.
     Following the beating, Pileggivs cell was searched and a
calendar containing notations was discovered.     Because of this
calendar, the investigation centered on three inmates:     Douglas
Turner, William Gollehon and Daryl Daniels.   The notations on the
calendar documented confrontations with these individuals, all of
whom worked in the vlhighsidell
                             kitchen before they were terminated
because of suspected assaults on other inmates.
     Correction officials describe an increasing tension in the
month before Pileggils death between kitchen employees who were
non-sex offenders and those who were sex-offenders.    Of the sex-
offenders, several, including Pileggi, were physically beaten by
other kitchen inmate employees.   The victims would not reveal who
was responsible for the injuries.
     Pileggi told corrections officers that three inmates had
dragged him into the dish room in the kitchen and beat him up, but
refused to identify who the three were.       Gollehon, Turner and
Daniels worked in the dish room.   After this incident, the three
were removed from the staff, just days before Pileggi's death.
     Because of the above incidents and Pileggitscalendar notes,
Gollehon, Turner and Daniels were removed from their cells and
their cells were searched.   In Gollehon's cell, officials found a
pair of prison pants, with blood on them, and a towel stuffed into
a pillow case.    The bottoms of the pant legs had been ripped off
and officers could see blood spatters on the remaining part of the
pants.   The towel also had blood on it. A forensic serologist was
unable to verify that the blood was Pileggifs.
     Gollehon, Turner and Daniels were placed in maximum security.
A number of inmates were interviewed but no one would give the
names of those responsible for the beating death of Pileggi,
despite the large number of inmates in the yard when Pileggi was
murdered.   In January 1991, an eyewitness came forward and agreed
to testify in exchange for his guaranteed safety. This led to the
filing of charges against Gollehon and Turner.
     The inmate, J.D. Amstrong, testified that he was playing
baseball    in the exercise yard   the day   Pileggi was beaten.
Armstrong testified that he was approached by Gollehon who asked
him which baseball bat was used the least.    Armstrong testified
that he suspected Gollehon was going to start a fight with Pileggi
because Gollehon had indicated that he was going to Ifmesshim up."
Armstrong also testified that he saw Gollehon confront Pileggi with
a baseball bat as Pileggi came around the track to the baseball
field backstop.
    Armstrong noted t h a t the two struggled for control of the bat

just prior to Turneris arrival at the scene. Armstrong saw Turner
hit Pileggi on the left side of his face, after which Pileggi fell
to the ground. Armstrong testified he then saw Turner and Gollehon
each deliver four or five more blows before throwing the bats onto
Pileggilsbody.
     Amstrong testified that as soon as the other inmates realized
what was happening they guickly            left the baseball        diamond.
Armstrong told Gollehon afterwards that he should do something
about his pants because they were blood spattered.                  Gollehon
responded with profanity, according to Armstrong.
     Another     inmate, William      Arnot, corroborated Armstrongts
testimony.    H e f u r t h e r testified t h a t he did not see Daryl Daniels

in t h e exercise yard on that day.
     A defense witness testified that nine or ten inmates were
involved and that after they pulled away, he saw a man lying on the
ground.    He testified he could not recognize any of the inmates.
Other witnesses testified that they were playing with, or had seen,
Gollehon and Turner playing horseshoes at the time of the beating.
Another witness testified that Armstrong was not on the softball
field the day of Pileggi's death but was playing dominoes with him
in the gym.
     On January 10, 1991, an information was filed in Powell County
District     Court   charging Gollehon and       Turner   with   deliberate
homicide for the beating death of Pileggi.           On May 17, 1991, the
information was amended to charge the defendants jointly with
deliberate homicide or, in the alternative with deliberate homicide
by accountability.    Prior to trial the State gave notice to
defendants that it would seek the death penalty in the event of a
conviction. Following a joint trial, the jury found each defendant
guilty of deliberate homicide by accountability.
     A   separate sentencing hearing was held for Gollehon on
February 27, 1992. The District Court determined that leniency was
not warranted because the mitigating factors did not sufficiently
outweigh the aggravating circumstances.       On March   19,   1992,

Gollehon was sentenced to death by hanging because he had not
exercised his option to choose death by lethal injection. Gollehon
appealed and the District Court stayed Gollehonlsexecution pending
resolution of this appeal.    While Turner presents us with only
three issues on appeal, Gollehon puts forth nine issues for
resolution.


     Did the District Court err by allowing State's counsel and co-
defendant Turner's counsel to question prospective jurors during
voir dire about the possibility of the death penalty being imposed
(known as "death qualification")?
     Before voir dire began, Gollehon made an oral motion in limine
requesting the court to prohibit the State from asking jury panel
members to declare their beliefs concerning the death penalty.
Gollehonls argument was that Montana juries do not participate in
the sentencing portion of trial and, therefore, questioning the
members about a possible sentence was inappropriate.      Gollehon
further argued that social science evidence proves that when a jury
is "death qualified" it is more prone to convict the defendant.
                                 7
    The judge took the motion under advisement and asked co-
defendant Turner to respond to his stance on the issue.     Turner
responded that he felt the jury should be death qualified.
Gollehon then moved the court to sever his trial from Turner. The
court denied the motion.
     Gollehon claims that under Montana law, if the jury panel
knows that the death penalty could be imposed upon conviction, the
error is prejudicial per se.      Further, Gollehon argues that the
process of death qualification results in juries that are more
conviction prone and that represent certain identifiable groups in
society. According to Gollehon, such questioning of jurors and the
resulting   challenges     for    cause   by    attorneys   produce
unrepresentative juries and violate his constitutional rights of
due process under both the state and federal constitutions.
Gollehon, therefore, seeks a reversal of his conviction and a new
trial.
     Gollehon has presented a constitutional challenge pursuant to
the Sixth, Eighth and Fourteenth Amendments to the United States
Constitution concerning the trial court's questioning of jurors
during voir dire to determine their views on the death penalty
(death qualification) .     The   State argues that Montana      law
specifically provides for death qualification of juries pursuantto
  46-16-115(2)(h), MCA, which provides:

     (2) A challenge for cause may be taken for all or any of
     the following reasons  ...  (h) if the offense charged is
     punishable with death, having any conscientious opinions
     concerning the punishment as would preclude finding the
     defendant guilty, in which case the person must neither
     be permitted nor compelled to serve as a juror;
According to the State, jurors cannot be dismissed simply because
they have doubts about the death penalty but only if their beliefs
for or against such penalty would              prevent or   impair their
performance as a juror.          This statute follows guidelines laid out
by the Supreme Court of the united States in witherspoon v.
Illinois (1968), 391 U.S. 510, 88 Sect. 1770, 20 L.Ed.2d 776, and
further defined by Wainwright v. Witt (1985), 469 U.S.          422,   105

S.Ct.    844,   83   L.Ed.2d    841.   In Withers~oon, the United States
Supreme Court ruled that a death sentence cannot be carried out if
the jury that imposed or recommended it was chosen by excluding
prospective jurors for cause simply because they voiced aeneral
objections to the death penalty.            State v. Coleman (19781, 177
Mont. 1, 579 P.2d 732.          Witherswoon provided an exception to this
rule:     if a prospective juror is irrevocably committed to voting
against conviction because of the possibility of a death penalty,
he may be excused for cause.
        Montana codifies the Withers~oonrule in 5 46-16-115(2) (h),
MCA.    Our statute permits a juror to be excused not for his or her
mere belief or disbelief in the use of the death penalty, but only
in instances where that belief prohibits the juror from applying
the law which the judge has provided.
        The death qualifying v o i r dire is, thus, more extensive
        than a mere inquiry into the venirepersonlsviews on the
        death penalty .        . .
                              [it is] "deep probing as to the
        opinions held" including exploration of whether the
        venirepersons can consider the full range of punishment
        under the facts alleged in the case before them.       ..
                                                               .
        This qualification is a two-step process. First, the
        experiences, opinions or views of the venireperson are
        uncovered by questions asked by the court and attorneys.
        Second, a determination is made by the trial court as to
    whether those experiences, opinions or views will prevent
    or substantially impair the person's duties as a juror in
    accordance with the instructions and oath.
P. Peters, Capital Voir Dire:      A Procedure Gone Awry, 58 UMCK Law
Review, 603, 623 (1990).
    Gollehon presents us with social science studies which seem to
indicate that death-qualifying a jury prejudice5 a defendant.        We
note that the U.S. Supreme Court has considered studies such as
these and rejected them.        In fact, we note that one of the
authorities cited by Gollehon in support was used in Lockhart v.
McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137, and
rejected by the U.S. Supreme Court.
     In Lockhart, the Supreme Court seriously questioned the
validity of such studies. See M. Peters, Constitutional Law: Does
"Death   Oualification"    Spell    Death    for   Capital   Defendant's
Constitutional Riaht to an Impartial Jury?            26 Washburn Law
Journal, 382, 394 (1987).       McCree argued the same thing that
Gollehon argues here that "death qualification1'violated the fair
cross section requirement of the Sixth Amendment and violated his
due process rights. The U.S. Supreme Court disagreed, holding that
defendant was entitled to a fair cross section of the jury panel
and not the final jury selected.      Lockhart, 476 U.S. at 174, 106
S.Ct. at 1764, 90 L.Ed.2d     at 148.       We agree with the Court's
assessment that to have a cross-section of the jury would require
a Herculean effort and be "unworkable and unsound." Lockhart, 476
U.S. at 174, 106 S.Ct. at 1765, 90 L.Ed.2d at 148.
     Gollehon's   due   process   arguments   are   likewise   without
substance.   In Lockhart the U.S. Supreme Court        considered the
studies individually and expressly ruled that even if valid, the
studies did not prove death qualification was unconstitutional.
Like the U.S. Supreme Court and Montana, many jurisdictions in this
country have determined that death qualification is constitutional
and does not infringe upon the accused's due process rights.
Johnson v. State (Fla. 1992), 608 S.2d 4; Pickens v. Lockhart
(E.D.Ark. 1992), 802 F.Supp. 208; Clayton v. State (0kl.Ct.App.
1992), 840 P.2d 18; People v. Hill (Cal. 1992), 839 P.2d 984 and
State v. Harris (Tenn. 1992), 839 S.W.2d        54.    One state has
determined that a defendant who wished to engage in death
qualification of the jury and was prohibited by the court from so
doing was denied due process of law. People v. Smith (Ill. 1992),
604 N.E.2d 858.
     Gollehonlsstatement that any mention of death as a penalty is
prejudicial per se in Montana is incorrect.         He cites State v.
Herrera (1982), 197 Mont. 462, 643 P.2d 588 and State v. Brodniak
(1986), 221 Mont. 212, 718 P.2d 322.     Neither case is a capital
case nor even hints at such a pronouncement on death qualification.
     While Gollehonlspoint concerning the bifurcation of the guilt
and sentencing portions of Montana trials is noted, we do not
conclude that such division automatically precludes the death
qualification process. Every defendant is entitled to a jury that
will follow the courtls instructions and act impartially.         If a
juror, despite the instructions by the court, will refuse to
consider conviction because of his or her strong belief concerning
the possible death sentence, the juror's dismissal is appropriate.
Adams v. Texas (1980), 448 U.S. 3 8 , 50, 100 S.Ct. 2521, 2529, 65
L.Ed.2d   581, 593,

     Here   the     court   and   counsel   questioned   the   jury   panel
adequately.    The judge excused one panel member because she could
not assure the court that she would be able to follow the court's
instructions during trial because of her strong stance against the
death penalty.      Such exclusion is proper according to 5 46-16-
115 (2) (h), MCA.

     We conclude that the greater weight of authority indicates
that death qualification as a procedure to insure a jury committed
to its task is constitutional.          We, therefore, hold that the
District Court did not err by allowing the State's counsel and co-
defendant Turner's counsel to question prospective jury members
during voir dire about the possibility of the death penalty.


     Did the District Court err by refusing to dismiss or continue
the trial because of an alleged discovery violation by the State?
     Gollehon claims he learned of a possible discovery violation
during the course of the trial.             He then moved the court for
dismissal or in the alternative for a continuance.             Both motions
were denied.

      Gollehon argues on appeal that Powell County Undersheriff
Scott Howard (Howard) interviewed hundreds of inmates concerning
Pileggi's death. According to Gollehon not all of these interviews
had ensuing reports; nor were contents of interviews containing
information inconsistent with the physical evidence released to the
defense.       Gollehon argues that the circumstances attendant to
Pileggils murder were common knowledge throughout the prison.
Therefore, Gollehon argues that information withheld from him could
have been significant in discrediting the State's two alleged eye-
witnesses. According to Gollehon, the State had a legal obligation
to provide him with the information gleaned from these interviews.
       The S t a t e contends that s i x months prior t o trial it sent
Gollehon a l i s t of file materials in its possession, one of these
files was a list of inmates questioned and a list of inmates
interviewed by Howard and Tom Blaz, deputy investigator at the
Montana State Prison.               Further, the State filed its notice of
disclosure pursuant to 8 46-15-322, MCA.                     The State further argues
that Gollehonls motion to dismiss came long after he supposedly
became aware of the alleged violation. The State argues that none
of the inmates interviewed implicated anyone other than Gollehon
and   Turner.         Therefore,          the   State claims that the untimely
objection       combined with             GolLehonSs lack        of proof        that the
information not presented to him could have been material, casts
serious doubt on the legitimacy of Gollehonls claimed discovery
violation.
       Gollehonlsmotion to dismiss is in effect a motion requesting
the court to exercise its discretion to dismiss the charges on its
own and i n t h e f u r t h e r a n c e of j u s t i c e .    S e c t i o n 46-13-401,   MCA

(formerly 46-13-201, MCA)             .    See State v . Roll (19831, 206 Mont.
259, 670 P.2d 566.              This Court will review a district court's
decision to dismiss criminal charges by determining whether the
lower court abused its discretion in v i e w of the constitutional
rights of the defendant and the interest of society.             Roll, 206
Mont. at 261, 670 P.2d at 568.          A motion for a continuance is
reviewed for abuse of discretion.          State v. Lapier      (1990), 242

Mont. 335, 790 P.2d 983; 5 46-13-202(3), MCA.
     The pivotal concern here is whether the State failed to
provide   the    defense    with     pertinent,   exculpatory     evidence.
Suppression of evidence by the State of facts that would be
favorable to the defendant constitutes a violation of defendant's
due process rights.        Brady v. Maryland (19631, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d        215,     This evidence, known as "Brady
          must be intentionally or deliberately suppressed by the
Material,gs
investigating officers in order for the act of suppression to be a
due process violation per se.         Sadowski v. McCormick (1991), 247
Mont. 63, 805 P.2d 537.
     Negligently suppressed evidence violates due process only if
it is material and of substantial use, vital to defense, and
exculpatory.     Sadowski, 247 Mont.        at 79, 805 P.2d at 547.
Officials   investigating this murder         had   no   duty    to   obtain
exculpatory evidence favorable to the defense, but must avoid
interference with the efforts on the part of the accused to obtain
such evidence.    Sadowski, 247 Mont. at 79, 805 P.2d at 546.
     Investigators for the State provided the defense with lists
containing 213 pieces of evidence it had gathered in the case.
Number 71 on the list is noted as:
     1 page list of inmates interviewed by Deputy Howard and
     Tom Blaz.
Number 103 on that list states:
     1 page list of inmates questioned, dated 9-2-90.
It was up to Gollehon to request these items:
     Disclosure by prosecution.       (1) Uvon reauest, the
     prosecutor shall make available to the defendant for
     examination and reproduction the following material and
     information within the prosecutor's possession or control
        ...(Emphasis added.)
Section 46-15-322(1), MCA.    The record does not indicate such a
request was made.
     More importantly, nothing prevented Gollehon from questioning
anyone at the prison.      The State was under a duty to provide
statements from inmates it planned to use as witnesses.    Section
46-15-322 (1)(a), MCA.     The State was    not under a   duty   to
investigate the entire case for Gollehon.
     Gollehon states Ititis fair to speculate that at least some of
the information garnered from these other witnesses was accurate."
This Court will not sanction such 1gspeculation.8*
                                                 Gollehon was free
to question inmates and put them on the stand. He chose not to do
that.    Having made the decision, he cannot now claim a discovery
abuse.    Of paramount importance is the fact Gollehon provides no
evidence whatsoever that any exculpatory evidence would have been
obtained.     Speculation of exculpatory evidence is not enough to
show it to be "of substantial usen or "vital to the defense."
     We conclude that the State met its responsibility in providing
Gollehon with a list of its evidence.       Therefore, we hold the
District Court did not abuse its discretion in denying dismissal or
a continuance.


     Did the District Court abuse its discretion in refusing to
allow Gollehon to inquire into evidence of prior crimes committed
by one of the State's eyewitnesses?
     The State offered testimony of two inmates who stated they
witnessed the beating death of Gerald Pileggi: J.D. Armstrong and
William Arnot. Gollehon sought the court's permission to introduce
a past employer of Arnotlswho would testify that Arnot stole his
Mercedes.   Also, Gollehon wished to present evidence of other
thefts and burglaries committed by Arnot.    The court refused to
allow any questions concerning prior acts of theft or burglary,
citing Rules 608 and 609, M.R.Evid.
     Gollehon argues that the rules of evidence permit him to
introduce evidence of a witness's prior bad acts which go to prove
the witness's dishonesty.   The State contends that at a pretrial
hearing all parties agreed to abide by the Montana Rules of
Evidence and those rules specifically exclude the use of prior
convictions to impeach a witness.
     This issue involves Montana Rules of Evidence 608 and 609:
          Rule 608.    Evidence of character and conduct of
     witness.
           (a) Opinion and reputation evidence of character.
     The credibility of a witness may be attacked or supported
     by evidence in the form of opinion or reputation, but
     subject to these limitations: (1)the evidence may refer
     onlyto character for truthfulness or untruthfulness, and
     (2) evidence of truthful character is admissible only
     after the character of the witness for truthfulness has
     been attacked by opinion or reputation evidence or
     otherwise.
           (b) Specific instances of conduct.         Specific
     instances of the conduct of a witness, for the purpose of
     attacking or supporting the witness' credibility, may not
     be proved by extrinsic evidence. They may, however, in
     the discretion of the court, if probative of truthfulness
     or untruthfulness, be inquired into on cross-examination
     of the witness (I) concerning the witnesst character for
     truthfulness or untruthfulness, or (2) concerning the
     character for truthfulness or untruthfulness of another
     witness as to which character the witness being cross-
     examined has testified.
          The giving of testimony, whether by an accused or by
     any other witness, does not operate as a waiver of the
     witnessf privilege against self-incrimination when
     examined with respect to matters which relate only to
     credibility.
          Rule   609.   Impeachment by evidence of conviction of
     crime.
          For the purpose of attacking the credibility of a
     witness, evidence that the witness has been convicted of
     a crime is not admissible.
     Rule 608 (b), M. R.Evid. , provides that specific instances of
conduct by a witness, for the purpose        attacking     supporting
his credibility, may not be proved by extrinsic evidence. State v.
 orris (1984), 212 Mont. 427, 689 P.2d 243.       The record reveals
that Gollehonlsattorney wished to question both a prior employer
and Arnot himself on cross-examination concerning past acts of
burglary and theft. The court correctly refused such questioning.
     Rule 608 pennits 9fopinion11
                               testimony concerning truthfulness
in order to support or discredit testimony.        Gollehon did not
attempt to   introduce such opinion testimony.           The proposed
testimony of Arnotlspast employer indicating Arnotlstheft of the
employerlsMercedes constitutes extrinsic evidence of conduct used
for the purpose of discrediting a witness and as such is prohibited
by Rule 608 (b), M.R.Evid.
     Further, Gollehon's proposed questioning of Arnot on cross-
examination as to his own prior acts of theft and burglary is
likewise inadmissible. We previously held:
    The testimony as to Phillips' previous misconduct was
    wholly unrelated to the ability of Phillips to observe,
    recall or testify as to any relevant occurrences in the
    altercation between White and Pippin.
State v.    White   (l983), 202 Mont.     491,   496,   658   P.2d 1111, 1113.

Likewise, testimony of previous instances of theft and burglary by
Arnot was wholly unrelated to Arnot5s truthfulness, ability to
observe, recall or testify as to the beating                   of    Pileggi by

Gollehon.
     Gollehon argues that he should have been able to question
Arnot about incidents of theft and burglary because they go to the
witness's "habit of doing things that impugned his ability to be
credible and to tell the truth.''         Therefore, Gollehon argues that
evidence concerning theft and burglary are admissible to prove
truthfulness.       Using this reasoning, any criminal act can be said
to do the same thing.         Gollehon quotes a leading treatise on
evidence which lists acts indicating dishonesty: forgery, bribery,
suppression     of     evidence,       false     pretenses,     cheating    and
embezzlement,       J. Weinstein   &   M. Berger, weinstein's ~vidence,6
608[5], at 608-27 to 608-52 (1988 & Supp. 1990).                    Burglary and
theft are properly absent from this list, yet Gollehon argues that
a source used by the authors of the treatise did contain theft and
burglary.    We decline to read these offenses into the treatise's
list.
    Gollehontsthinly-veiled proposed questioning of Arnot's prior
convictions without mentioning the word                wconviction~ is not
persuasive.      Montana's   Rule    609, M.R.Evid.,          is unique;   it
specifically prohibits evidence of a witness's prior convictions.
This Court has been adamant i n prior rulings that Rule 609 be
strictly enforced:
    [Tlhe intention on the part of the State [in asking about
    prior convictions] was to discredit the witness by
    showing that he had been engaged in crimes of
    intimidation and assault, and that the intimidation crime
    involved guns. We further conclude that the aim on the
    part of the State was ta improperly impugn the character
    of the defendant and thereby suggest a greater likelihood
    of guilt of the crimes with which he was charged. We
    will not tolerate this intentional and significant
    evasion of our rules.
State v. Shaw (1989), 237 Mont. 451, 454, 775 P.2d 207, 208-209.
     Gollehon goes on to argue that elimination of this l i n e of
questioning worked     to deny him his constitutional right of
confrontation.       The   Sixth    Amendment    to     the   United   States
constitution guarantees the right of an accused in a criminal
prosecution Itto be confronted with the witnesses against him."
State v. Short (1985), 217 Mont. 62, 67, 702 P.2d 979, 982.             This
includes the right to cross-examination.         Davis v. Alaska (1974),
415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d         347.

     The court must balance the probative value of relevant
evidence as compared with the possibility of prejudice. Short, 217
Mont. at 69, 702 P.2d at 983.       If the probative value of evidence
is greater, and other evidentiary parameters are satisfied, the
evidence is admissible,
     ~dmission of evidence resides with the discretion of the
court. State v. Crist (1992), 253 Mont. 442, 833 P.2d 1052. Once
admitted, however, it is the trier of fact who must determine the
weight to be given to each piece of evidence admitted.        State v .
Bower (l992), 254 Mont. 1, 833 P.2d 1106. Gollehon's argument that
the trier of fact was not presented with a crucial line of
questioning of Arnot is totally speculative.
     We hold that limiting the extent of the cross-examination
     on the pending charges in Washington did not violate
     Short's right to confrontation of witnesses and was not
     an abuse of the t r i a l court's discretion.
Short, 217 Mont. at 68, 702 P.2d at 982.
     Likewise, we conclude that Gollehon's right to confrontation
was not denied by the courtlsrestrictions on cross-examination of
Arnot.   We hold the ~istrictCourt did not abuse its discretion by
refusing to allow Gollehon to inquire into evidence of prior crimes
committed by one of the State's eyewitnesses.


     Did the District Court err in denying Gallehon's motion to
declare Montana's death legislation illegal and unconstitutional?
     Gollehon argues that this Court should once again consider the
constitutionality of Montana's death penalty legislation. Gollehon
contends that the present legislative scheme denies him due process
and equal protection under the Fourteenth Amendment to the United
States Constitution. The State argues that this Court has already
definitively   determined   that   the   death   penalty   statute   is
constitutional.
     Gollehon argues that Montana's death penalty statutes violate
Article 11, Section 28 of Montana's Constitution which provides:
     Laws for the punishment of crime shall be founded on the
     principles of prevention and reformation. Full rights
     are restored by termination of state supervision for any
     offense against the State.
Gollehon argues, as have others before him, that the 1889
Constitution contained a reference to the death penalty and the
conscious excision of any mention of this punishment indicates the
legislature's unwillingness to use the death penalty.      Such is
clearly not the case.
     The legislature has instituted the death penalty and retains
it pursuant to 5 46-18-301, MCA.   If the legislature of this State
intended to do away with the death penalty, it would have repealed
this piece of legislation.    Further, and more important, if as
Gollehon claims, the vote of the people of this State to retain the
death penalty was somehow not representative, the people would have
objected some time during the twenty-one years since the 1972
referendum.
     The Statersargument that this Court has previously determined
the constitutionality of the death penalty is well taken.        Both
State v. Langford (1991), 248 Mont. 420, 813 P.2d 936 and State v.
McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, have upheld the
constitutionality of our death penalty statutes:
     We therefore affirm our holding in McKenzie and hold that
     Montana's death penalty statutes do not violate Montana
     Constitution Article 11, Section 28.
Lanaford, 248 Mont. at 441, 813 P.2d at 952.
    We conclude that Gollehon has raised arguments the Court has
considered in the past.    We hold that the District Court did not
err in denying Gollehonls motion to declare Montana's              death
legislation illegal and unconstitutional.


     Did the District Court err by failing to rule, as a matter of
law, that no aggravating circumstances existed?
     Gollehon argues that the trial court improperly considered the
aggravating circumstances as per 5 46-18-303(l) and         (2),    MCA.
Gollehon contends that both aggravating factors can only be applied
if he was convicted of deliberate homicide and since he was
acquitted of deliberate homicide, the aggravating factors do not
apply.     Further, Gollehon argues that when the sentencing judge
considered deliberate homicide he was in violation of the double
jeopardy provisions of the Montana Constitution as well as the
United States constitution.
     The     State   contends   that   Gollehon   was   convicted     of
accountability for deliberate homicide and his arguments reflect a
misunderstanding of the jury's verdict and the applicable case law.
     This presents a question of law which we review de novo. U. S     .
v . Engesser (9th Cir. Mont. 1986), 788 F.2d 1401, cert. denied, 479

U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159.      The aggravating factors
which are weighed when a court considers the death penalty are
found in 5 46-18-303, MCA.      Here the court considered (1) and (2)
as aggravating factors:
          (1) The offense was deliberate homicide and was
     committed by a person serving a sentence of imprisonment
     in the state prison.
         (2) The offense was deliberate homicide and was
    committed by a defendant who had been previously
    convicted of another deliberate homicide.
         (3) The offense was deliberate homicide and was
    committed by means of torture.
         (4) The offense was deliberate homicide and was
    committed by a person lying in wait or ambush.
         (5) The offense was deliberate homicide and was
    committed as a part of a scheme or operation which, if
    completed, would result in the death of more than one
    person.
         (6) The offense was deliberate homicide as defined
    in subsection (1)(a) of 45-5-102, and the victim was a
    peace officer killed while performing his duty.
          (7) The offense was aggravated kidnapping which
    resulted in the death of the victim or the death by
    direct action of the defendant of a person who rescued or
    attempted to rescue the victim.
          (8) The offense was attempted deliberate homicide,
    aggravated assault, or aggravated kidnapping committed
    while incarcerated at the state prison by a person who
    has been previously:
          (a) convicted of the offense of deliberate homicide;
    or
          (b) found to be a persistent felony offender
    pursuant to part 5 of this chapter and one of the
    convictions was for an offense against the person in
    violation of Title 45, chapter 5, for which the minimum
    prison term is not less than 2 years.
          (9) The offense was deliberate homicide and was
    committed by a person during the course of committing
    sexual assault, sexual intercourse without consent,
    deviate sexual conduct, or incest, and the victim was
    less than 18 years of age. (Emphasis supplied.)
Section 46-18-303, MCA.   Gollehon objects to subsection 1 and 2 as
aggravating factors because he claims to have been acquitted of
deliberate homicide.
     The jury found Gollehon and Turner "not guiltyIi of deliberate
homicide but "guilty* of deliberate homicide by accountability.
The jury was instructed that a person is legally accountable for
the conduct of another when:
          (1) he purposely or knowingly causes another to
     perform the conduct, regardless of the legal capacity or
     mental state of the other person; or
         (2) the statute defining the offense makes him so
    accountable; or
         (3) either before or during the commission of an
    offense, and with the purpose to promate or facilitate
    such commission, he solicits, aids, abet, agrees or
    attempts to aid, such other person in the planning or
    commission of the offense.
Jury Instruction #11.
    The   court   went   on   to   explain   deliberate   homicide   by
accountability:
         To convict defendants. or either of them. of
    Deliberate Homicide by beinq lesally accountable for the
    conduct of another, the State must prove the following
    elements:
         1.   That the crime of Deliberate Homicide, as
    defined in Instruction 9 has been committed; and
         2. That either or both of defendants, with common
    pumose with the other defendant, either before or
    durins the commission of the offense of deliberate
    homicide, and with the purpose to promote or facilitate
    such commission solicits, aids, abets, agrees or attempts
    to aid, the other defendant in the planning or commission
    of the offense.
         If you find from your consideration of the evidence
    that all these elements have been proved beyond a
    reasonable doubt, then you should find the defendants, or
    either of them, guilty of Deliberate Homicide by
    Accountability, as alleged in Count I1 of the
    Snfonnation.
         If, on the other hand, you find from your
    consideration of the evidence that any of these elements
    has not been proved beyond a reasonable doubt then you
    should find the defendants, or either of them, not guilty
    of Deliberate Homicide by Accountability, as alleged in
    Count I1 of the Information. (Emphasis added.)
Jury Instruction #12.
     These instructions clearly and correctly instruct the jury
that the offense of deliberate hamicide by accountability requires
a deliberate homicide and that the defendant(s) acted with common
purpose before or during the homicide.        The jury did not find
Gollehon not guilty of deliberate homicide, but only found he did
not act alone during the crime. A charge of deliberate homicide by
accountability allowed the jury to convict both men involved in the
deliberate homicide without havingto make the determination of who
struck the fatal blow.
     Gollehon cites Enmund v. Florida (l98l), 458 U.S. 782, 102
S.Ct. 3368, 73 L.Ed.2d 1140, for the proposition that the Eighth

Amendment forbids the imposition of the death penalty against one
who neither took life, attempted to take life, nor intended to take
life.      It is Gollehonls argument that he was acquitted of
deliberate homicide and cannot be said to have attempted to take
life.
     In Enmund, the Supreme Court reversed a death sentence levied
on the driver of a car involved in a robbery in which several
people were killed. Two robbers who had entered the home committed
the murders while Enmund waited in the car.      The case we have
before us is not a felony murder case like Enmund.      Here, both
Gollehon and Turner were convicted of deliberate homicide by
accountability.   Both Gollehon and Turner were adjudged to have
acted in a common plan to kill Pileggi, regardless of who struck
the fatal blow.
     Gollehonlspersistent view that he was acquitted of deliberate
homicide is error. Gollehon was found not to have acted alone--he
was convicted of acting with Turner in a common scheme to kill
Pileggi.
     Gollehonls argument that the crime of "ac~ountability~~ a
                                                          is
separate crime is not correct.   The State charged accountability
for deliberate homicide so that the jury could convict if they
determined Gollehon and Turner aided and abetted each other in the
murder of Pileggi.
     Tn State v. Duncan (1991), 247 Mont. 232, 805 P.2d 1387, the
appellant following a conviction for deliberate homicide argued
that t h e record did not contain sufficient evidence to prove that
he shot and killed the victim.
     The evidence did not have to prove that Roy actually shot
     and killed Larry as Roy was charged and convicted of
     deliberate homicide through accountability    . . .   The
     record, through the testimony of Ursla, Sherry and Ginny,
     as well as other witnesses, overwhelmingly indicates that
     Roy either shot Larry, or aided or abetted Joe in doing
     so.
Duncan, 247 Mont. at 239, 805 P.2d at 1392.
     Because the jury found that Gollehon was guilty of deliberate
homicide by accountability the sentencing consideration of whether
to use the death penalty for t h e conviction was n o t      double
jeopardy.   The jury had already determined that Gollehon had
committed deliberate homicide by, at the very least, aiding and
abetting Turner.      'IAggravating circumstances are not separate
penalties or offenses, but are 'standards to guide the making of
[the] choice' between the alternative verdicts   . . . the judge's
finding of any particular aggravating circumstance does not of
itself lconvict a defendant   ...     Walton v. Arizona (1990), 497
U.S. 639, 648, 110 S.Ct. 3047, 3054, 111 L.Ed.2d 511, 525.

     We hold that the District Court did not err in failing to
rule,        matter       law, that      aggravating circumstances
existed.
     Did the District Court err by failing to rule, as a matter of
law, that mitigating factors existed and that such mitigating
factors were substantial enough to call for leniency?
     Gollehon argues that the court is obliged to review the
existence   or       nonexistence   of    all   mitigating   circumstances
enumerated in    §   46-18-304, MCA.     Gollehon further argues that his
extensive sexual abuse as a child entitled him to rehabilitation
and the only programs in existence within the prison system are
provided for women abuse victims, not men.            Therefore, Gollehon
contends that the mitigating evidence he presented was substantial
enough to call for leniency.
     The State argues that the District Court considered the
mitigating factors of 5 46-18-304, MCA, and determined after giving
all mitigating factors effect, that leniency was not called for.
Further, the State argues that on appeal, Gollehon does not argue
any of the specific mitigating factors to be considered under
Montana law, but only factors which fall within the "catch all"
category of the statute.
     This Court is charged on review of a death sentence to
consider the punishment as well as any errors enumerated by way of
appeal according to 5 46-18-310, MCA:
          (1) whether the sentence of death was imposed under
     influence of passion, prejudice, or any other arbitrary
     factor;
          (2) whether the evidence supports the judge's
     finding of the existence or nonexistence of the .      .     .
     mitigating circumstances enumerated in
     MCA; and
                                                    ...
                                                   46-18-304,
          (3) whether the sentence of death is excessive or
     disproportionate tothe penalty imposed in similar cases,
     considering both the crime and the defendant. The court
      shall include in its decision a reference to those
      similar cases it took into consideration.
      The District Court issued findings of fact and conclusions of
law following a sentencing hearing on February 27, 1992.         The
findings in regard to mitigating circumstances were structured
around the legislative directives of    46-18-304, MCA:

           46-18-304. Mitigating circumstances.   Mitigating
      circumstances are any of the following:
           (1) The defendant has no significant history of
      prior criminal activity.
           (2) The offense was committed while the defendant
      was under the influence of extreme mental or emotional
      disturbance.
           (3) The defendant acted under extreme duress or
      under the substantial domination of another person.
           (4) The capacity of the defendant to appreciate the
      criminality of his conduct or to conform his conduct to
      the requirements of law was substantially impaired.
           (5) The victim was a participant in the defendant's
      conduct or consented to the act.
           (6) The defendant was an accomplice in an offense
      committed by another person, and his participation was
      relative minor.
           (7) The defendant, at the time of the commission of
      the crime, was less than 18 years of age.
           (8) Any other fact that exists in mitigation of the
      penalty.
      The court reviewed the first seven elements in detail noting
that no evidence had been submitted by Gollehon concerning elements
one   through   seven.   Gollehon presented   evidence    concerning
subsection 8, the catch-all, which vividly portrayed the inhuman
conditions under which he was raised.     He presents the same on
appeal.
      While we acknowledge the severity of Gollehon's traumatic
childhood, our responsibility as a reviewing court is to evaluate
whether the district court acted without passion or prejudice,
under the existence or nonexistence of substantial evidence, and
with consideration of whether the sentence given is proportionate
to the crime.   Section 46-18-310, MCA.
     The District Court stated       in finding #14 that      it had
considered and given effect to all Gollehon's mitigating evidence
of childhood abuse.   The court considered in detail, and without
passion or prejudice, the evidence presented by Gollehon.     In the
end, the court determined that Gollehon had         failed to take
advantage of any help for problems caused by his childhood abuse
and that the evidence concerning his family history was not
sufficient to preclude the death penalty.
     The Ninth circuit in reviewing Montana's catch-all subsection
to 5 46-18-304, MCA, states that as long as the court considers
evidence presented under this subsection "[tlhe Montana courts were
entitled to conclude that the mitigating evidence    .. .   submitted
under the catch all subsection 8 was not persuasive enough to grant
a sentence less than death. It   Smith v. McComick (9th Cir. Mont.
l99O), 914 F.2d 1153, 1165.      The findings issued by the District
Court clearly show that it cited many instances from Gollehonts
past which indicate that he did not attempt to overcome the
problems of his childhood abuse.
     The court further considered elements from Gollehon's history
of institutionalization as mitigating factors.     The court stated
that despite instances of prior good conduct during his first
prison   sentence, Gollehonls failure to       address his   serious
personality problems led to even more serious difficulties during
his second incarceration, this time for deliberate homicide.         The
court concluded:
     The defendant has demonstrated that he cannot live within
     the rules of even a prison society without taking another
     life. The court feels that he will again kill another
     human being if the opportunity presents itself.
     We note that the court specifically noted that the programs at
the prison are inadequate to deal with the personality problems
from which Gollehon suffers.     However, the record does not show
that Gollehon would have benefitted from such programs if they
existed, and the court so concluded.
     The record also reveals that the court fully disclosed the
reasons upon which it based its decision to sentence to death:
     An   incomplete record in capital sentencing is
     constitutionally inadequate: there must be "full
     disclosure of the basis for the death sentence."
Smith, 914 F.2d at 1166, citing Gardner v. Florida (1977), 430 U.S.
349, 361, 97 S.Ct. 1197, 1206, 51 L.Ed.2d 393.      The record being
complete concerningthe court's analyses, Gollehon's constitutional
rights have not been violated.
     In summation, we conclude that the District Court considered
adequate evidence both of aggravating and mitigating factors and
considered them in their totality rather than weighing each factor
by itself. The court concluded that the evidence presented by the
State concerning the aggravating factors was shown "beyond a
reasonable doubt."    Further, the court stated that when weighed
against   the   mitigating   evidence,   the   cumulative   nature    of
Gollehonlsmitigating evidence was not "sufficiently substantial to
call for leniency."      Walton v. Arizona (1990), 497 U.S. 639, 649,
110 S.Ct. 3047, 3055, 111 L.Ed.2d 511, 525.

      The proportionality review will be considered later.
      We   hold the District Court did not err by failing to rule, as
a   matter    of   law, that mitigating        factors existed and that
mitigating factors were substantial enough to call for leniency.
                                   VII
     Did the District Court err by sentencing Gollehon to death for
the crime of deliberate homicide by accountability?
      Gollehon argues that it is not legally permissible to sentence
a defendant to death upon a conviction for the crime of deliberate
homicide by accountability because no sentence for this crime is
set by statute.         Again, Gollehon argues he was acquitted of
deliberate homicide.        According to Gollehon, this Court must
interpret ambiguous statutes favorably for the person against whom
the enforcement is sought,
      The State argues that deliberate homicide by accountability is
not a separate crime from that of deliberate homicide.             According
to the State, conviction of any felony I1by accountabilityw carries
with it the sentence for the underlying felony. Further, the State
contends that       5   45-1-102(2),    MCA,     dictates   that   all   penal
provisions be construed according to the fair import of their terms
with a view to effect its object and to promote justice.
      We     emphasize our prior       reasoning concerning        deliberate
homicide by accountability.            Having been found not guilty of
deliberate     homicide,    Gollehon     still    must   contend   with   his
conviction of deliberate homicide by accountability. The dissent
                                       31
states that Gollehon was         specifically found      not    guilty   of
deliberate homicide and cannot, t h e r e f o r e , be sentenced t o death.
We disagree.    Gollehon was found guilty of deliberate homicide by
accountability.    No matter how you juggle semantics, Gollehon was
convicted of committing a deliberate homicide, the jury simply did
not find he acted alone.
     The dissent's reasoning only works if accountability is a
separate crime for which the legislature failed to provide a
remedy.   Accountability is not an "off-shootw homicide.           It is a
connection provided by our legislature that gives courts and juries
a way to make people uaccountable~t responsible for a crime that
                                  or
has definitely been committed.       The responsibility for the crime
attaches by way of acts committed by the accused.              The accused
either participated in a communal crime or aided, abetted another,
or planned the crime.
     The dissent refers to 5 45-5-102, MCA, which in pertinent part
states:
     45-5-102.  Deliberate homicide. (1) A person commits the
     offense of deliberate homicide if:
           (a) he purposely or knowingly causes the death of
     another human being; (Emphasis supplied.)
The dissent concludes that Gollehon was specifically found not
guilty of the offense of causing the death of another human being.
By its verdict the jury found Gollehon not guilty of deliberate
homicide.    It also found him guilty of deliberate homicide by
accountability. H e r e we emphasize t h a t 1 45-2-302, MCA, previously
set out in this opinion, provides that a person is legally
accountable for conduct of another when the described events occur
- as a result, we conclude that Gollehon's conviction meets the
requirements of 5 45-5-102, MCA, as he did "causeg1the death of
Pileggi because he aided and abetted in the commission of the
offense of deliberate homicide as required by              statute.     We
therefore conclude that Gollehon has met the specific requirements
of 5 45-5-102, MCA, by his conduct in which he purposely or
knowingly caused the death of Pileggi, whether by his own blow, or
the blow of Turner whom he aided and abetted.
       The evidence presented at this trial places Gollehon in the
middle of a homicide with a bat in his hands.          Pileggi was killed
either by blows from Gollehon or Turner. Following the dissent's
reasoning, anytime the fatal blow in a case cannot be attributed to
one   person, no person involved can ever get more than ten years as
a sentence, no matter how heinous the crime.           Thus, according to
the dissent, the accountability statute must by its reasoning
dilute criminal responsibility of all types rather than making all
those responsible for a crime pay the same price. We conclude that
the legislature never      intended the result that the dissent
suggests. We determine that our legislature never meant to dilute
responsibility for a criminal act when that act was committed by
more    than   one   person,   but   instead   meant    that   all    those
participating in a crime be l'accountablell
                                          for the whole of the
responsibility of that act.          Here, that act was deliberate
homicide, which carries death as a possible sentence,
       We note that Montana's statutes 5 45-2-301 through 303, MCA,
were taken fromthe Illinois Criminal Code sections 5-1, 5-2 and 5-
3 (1961).   This Court has already determined that when Montana
adopts statutes from other states, we will also adopt the case law
from that state which interprets the statute.      State v. Murphy
(1977), 174 Mont. 307, 311, 570 P.2d 1103, 1105.
     Illinois has specifically upheld the death sentence when
applied to those persons found guilty of murder        (deliberate
homicide in Montana) under the theory of accountability. People v.
Stanciel (Ill. 1992), 606 N.E.2d 1201; People v. Ruiz (Ill. 1982),


     A charge based upon accountability must necessarily flow
     fromthe principal crime at issue. Accountability is not
     in and of itself a crime, but rather a method through
     which a criminal conviction may be reached. Simply, the
     statute is a statement of the principles of
     accessoryship.
Stanciel, 606 N.E.2d at 1209.
     This reasoning is no different than our own reasoning in prior
cases:
     B.D.C.'s challenge on this ground has no basis in law.
     B.D.C. seems to be arguing that when one is charged with
     an offense by accountability, he or she is being charged
     with a separate or different offense. Accountability,
     however, is merely a conduit by which one is held
     criminally accountable for the acts of another. There is
     no separate offense, only the underlying offense which
     has been physically committed by another, but for which
     the defendant is equally responsible because of his or
     her conspiring or encouraging participation.
Matter of B.D.C. (1984), 211 Mont. 216, 220-21, 687 P.2d 655, 657.
     Both Gollehon and Turner were convicted of deliberate homicide
by accountability.    Neither man was "acquitted" of deliberate
homicide as they argue, and as the dissent argues, but only of
committing the homicide alone.   The deliberate homicide occurred;
Gerald Pileggi is dead.     However, which blow actually caused the
death is indeterminable.    It is also irrelevant.
     If a person has conspired to commit and facilitated the
     commission by another of a criminal act, he is no less
     guilty because he did not "pull the trigger."
Matter of B.D.C.,    211 Mont. at 221, 687 P.2d at 657.
     The jury was instructed correctly that they had to determine
first that a deliberate homicide had occurred before they could
reach a conviction of deliberate homicide by accountability.
Gollehon s argument, therefore, that the death penalty is not a
viable sentence for deliberate homicide by accountability is
legally incorrect.      Once determined responsible for deliberate
homicide    (acting    alone)     or       for   deliberate   homicide   by
accountability      (not acting   alone) the death penalty          is an
appropriate sentence:
     A person convicted of the offense of deliberate homicide
     shall be punished by death        .
                                   . ., by life imprisonment,
     or by imprisonment in the state prison for a term of not
     less than 10 years or more than 100 years, except as
     provided in 46-18-222.
Section 45-5-102(2), MCA.
     Gollehon's and the dissent's argument concerning ambiguity in
statutory instructions is not well made. Montana's accountability
statutes are not ambiguous:

     When accountabilitv exists.       A person is legally
     accountable for the conduct of another when:          (3)...
     either before or during the commission of an offense with
     the purpose to promote or facilitate such commission, he
     solicits, aids, abets, agrees, or attempts to aid such
     other person in the planning or commission of the
     offense. (Emphasis added.)
Section 45-2-302 ( 3 ) , MCA.   The statute is clear that an offense
must be committed before accountability attaches the responsibility
for the crime to the accused.        There is no question here that
Gerald Pileggi was beaten to death with baseball bats.      Further,
sufficient evidence was presented at trial to show that both
Gallehon and Turner struck Pileggi repeatedly with baseball bats.

There is also no question that the jury convicted Turner and
Gollehon of committing a deliberate homicide together.      The fact
that the jury could not assess the fatal blow to either person
swinging a bat cannot, even with minimal logic, be the cause of
reducing responsibility for another's death to ten years as the
dissent suggests,
     We conclude that Gollehongsconviction of deliberate homicide
by accountability means that 1) a deliberate homicide occurred and
2) Gollehongs actions before or during the commission of the

homicide made him liable as a principal actor in that homicide. We
further conclude that the death penalty is applicable to deliberate
homicide by accountability.
     We hold that the District Court did not err by sentencing
Gollehon to death       for the crime of deliberate homicide by
accountability.
                                  VIII
     Did the District Court properly refuse to consider Gollehongs
argument that death by hanging constitutes cruel and unusual
punishment?
     Gollehon argues that his death sentence is to be carried out
by hanging which is cruel and unusual punishment in contravention
to the Eighth Amendment to the United States Constitution,      The
State argues that Gollehon was free to choose death by lethal
injection and did not do so.
         The punishment of death must be inflicted by hanging
    the defendant by the neck until he is dead or, at the
    election of the defendant, by administration of a
    continuous, intravenous injection of a lethal quantity of
    an ultra-fast-acting barbiturate in combination with a
    chemical paralytic agent until a licensed physician
    pronounces that the defendant is dead according to
    accepted standards of medical practice. A defendant who
    wishes to choose execution by lethal injection shall do
    so at the hearing at which an execution date is set, and
    if he does not, the option to choose death by lethal
    injection is waived.
Section 46-19-103(3), MCA.
    This Court has already settled the question raised by
Gollehon.   In State v. Langford (19921, 254 Mont. 44, 833 P.2d
1127 this Court stated:
    Section 46-19-103 (3), MCA, provides Langford the
    opportunity to elect between lethal injection and hanging
    as a method of execution. Clearly, Langford had ample
    opportunity to elect lethal injection over hanging, but
    chose not to do so. Accordingly, he rendered moot any
    claim concerning the constitutionality of hanging as a
    method of execution.
Lansford, 254 Mont. at 46-47, 833 P.2d at 1129.
     Our examination of the transcript reveals that the court
attempted to clarify Gollehonts options and that his attorney
understood the consequences of silence as to choice:
    THE COURT: This is a continuation of cause DC-91-01,
    State of Montana versus William J. Gollehon.         Mr.
    Gollehon, under Section 46-19-103, I am required to
    impose this sentence between 30 and 60 days, and
    likewise, that statute requires for you to make an
    election of whether you want to die by hanging or lethal
    injection. I will set sentencing for May 11th between
    the hours of 12:Ol a.m. and 6:00 a.m.     Do you have a
    preference for the method?
    MR. DONAHOE: Your Honor, Mr. Gollehon with the respect
    to the election will stand mute, and I think that the
    statute requires that the finding be that he be hung. In
    that connection, Your Honor, I would bring to the Court's
    attention the fact that hanging may be unconstitutional
    as being cruel and unusual per se within the meaning of
    the 8th and 14th Amendment of the United States
    Constitution and under our own Montana Constitution.
    That issue in particular is being worked up I think
    through the Montana Courts right now and is now pending
    in the 9th Circuit Court of Appeals. I didn't bring it
    to the Court's attention before, obviously, because I
    didn't want to play my hand with regard to the sentence
    that the Court might be thinking about giving. In other
    words, I didn't want the Court to think that I thought
    that the death penalty was going to be imposed.
     THE COURT: There is no problem there, Mr. Donahoe. What
    I want understood is that the election is to be exercised
    at this time by Mr. Gollehon, and if Mr. Gollehon does
    not request lethal injection, in that event that death by
    hanging survives any challenge to it, that he is, in
    essence, making an election to die by hanging. If that
    is understood, that is all. You are remanded to the
    custody of the Sheriff.
Sentencing hearing transcript March 16, 1992.
     It is clear that both Gollehon and his counsel understood that
if Gollehon chose not to speak in answer to the court's question
concerning method of execution, he waived his right to election of
methods.   Having been given a choice and yet waiving the
alternative of lethal injection, Gollehon's arguments concerning
cruel and unusual punishment by hanging are moot and will not be
considered further.


     Should this Court uphold     Gollehon's death    sentence on
automatic review?
     This Court is charged pursuant to 5 46-18-310(3), MCA, with
determining whether the death sentence imposed in any given case
"is excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.1e Section 46-
18-310(3), MCA.   Therefore, at Gollehon's request and pursuant to
our responsibility we consider and compare all of the following
cases, as we did in Turner, in which the death penalty was or could
have been imposed:
     State v. Langford (l99l), 248 Mont. 420, 813 P.2d 936;
     State v. Kills On Top (Vern) (lggO), 243 Mont. 56, 793
     P.2d 1273; State v. Kills On Top (Lester) (l99O), 241
     Mont. 378, 787 P.2d 336, cert denied, 111 S.Ct. 2910
     (1991); State v. Dawson (1988), 233 Mont. 345, 761 P.2d
     352; cert. denied, 492 U.S. 910 (1989); State v. Keefe
     (1988), 232 Mont. 258, 759 P.2d 128; State v. Keith
     (1988), 231 Mont. 214, 754 P.2d 474; State v. Smith
     (l985), 217 Mont. 461, 705 P.2d 1087, cert. denied, 474
     U.S. 1073, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986), habeas
     corpus conditionally granted, 914 F.2d 1153 (9th Cir.
     1990) ; State v. Fitzpatrick (1980), on remand, 186 Mont.
     187, 606 P.2d 1343, cert. denied, 449 U.S. 891 (l98O),
     reversed on other srounds, 869 F.2d 1247, (9th Cir.),
     cert. denied, 110 S-Ct. 349 (1989); State v. Coleman
     (l978), 185 Mont. 299, 605 P.2d 1000 (l979), cert.
     denied, 446 U.S. 970, (1980), reversed on other srounds,
     874 F.2d 1280 (9th Cir. l989), cert. denied, 110 S.Ct.
     349, (1989); State v. McKenzie (l976), 171 Mont. 278, 557
     P. 2d 1023, vacated on other srounds, 433 U.S. 905 (1977)~
     - remand, 177 Mont. 280, 581 P.2d 1205 (1978), vacated,
     on
     443 U.S. 903 (1979), on remand, 186 Mont. 481, 608 P.2d
     428, cert. denied, 449 U.S. 1050 (1980), vacated in part
     - other mounds, 842 F.2d 1525 (9th Cir.), cert. denied,
     on
     488 U.S. 901 (1988).

     We have examined the above cases with regard to the gravity of
the offenses, the brutality with which they were committed and the
existence of any factors meriting leniency.
     We first note the heinous way in which ~ilegqi
                                                  was killed. We
also note that Gollehon was serving time for another deliberate
homicide committed partially by the same brutal method.
     Like the District Court, this Court acknowledges that the
abuse Gollehon suffered as a child of unloving and brutal parents
cannot be divorced from Gollehonfscurrent behavior. However, also
like the District Court we note an extensive history of criminal
conduct with no remorse or compassion attached to such conduct.
     Gollehon seeks to have this Court consider the murders
committed in the prison riot and the fact that none of the inmates
involved were sentenced to death.         While both cases involved
inmates killing inmates, we will not consider the riot case because
it is not before us.        What is before us is a deliberately
calculated killing of one human being by two o t h e r s w i e l d i n g
baseball bats.
     We    have   considered   this   case   in   comparison   to   the
aforementioned cases involving murder by beating, by beating and
strangulation, by'strangulation and injection of unknown substance
and by shooting, strangulation and stabbing.        The facts of this
case are no less heinous than the Kills On TOD cases in which the
victim was beaten with a tire iron and a rock, was shot and then
had his throat slit.    We stated in State v. Kills On Top (1990),
243 Mont, 56, 793 P.2d 1273, that I g [ t J h ehomicide was senseless,

calculated and brutal."    Kills On TOD, 243 Mont. at 109, 793 P.2d
at 1309.   So too is the homicide before us.
     When considering proportionality we consider directives also
from the United States Supreme Court:
          In Enmund v. Florida (l982), 458 U.S. 782, 102 S.Ct.
     3368, 73 L.Ed.2d 1140, the court held that the death
     penalty may be imposed if defendant killed, attempted to
     kill, or intended to kill or that lethal force be used.
     This determination as to defendant's culpability need not
     be made by a jury, but may be made at any point in the
     state criminal process. Cabana v. Bullock (1986), 474
     U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704, overruled in
    part on other urounds; Pope v. Illinois (1987), 481 U.S.
    497, 504, 107 S.Ct. 1918, 1922, 95 L.Ed.2d 439, 447.
    also Tison v. Arizona (1987), 481 U.S. 137, 107 S.Ct.
    1676, 95 L.Ed.2d 127.
         Applying the rule of Enmund and Cabana, the
    sentencing court made the determination that defendant
    killed the victim. We conclude that the findings and
    conclusions by the sentencing court are properly within
    the provisions of the statutes and that there is no
    contradiction present casting doubt on the validity of
    the death penalty. Under our statutory provisions, the
    sentencing judge is clearly given the responsibility and
    power to make this determination. (Emphasis added.)
State v. Kills on Top (1990), 241 Mont. at 404, 405, 787 P.2d at


     The evidence presented at trial reveals that Gollehon killed
Pileggi in concert with Turner. Thus, we find that the Enmund rule
is also satisfied.
    Having considered the evidence, prior Montana cases and
directives by the United States Supreme Court and the Ninth
Circuit, we independently conclude that Gollehon killed Pileggi in
concert with Turner and that the death penalty is appropriate.
    We affirm the sentence of death imposed by the District Court.
This case is remanded to the District Court for the determination
of the date of execution in accordance with Montana statutes.
    Affirmed.
sitting for ~u@ceDk.   C.
McDonough
Justice Karla M. Gray, dissenting.


     I concur in the Court's opinion on issues 1 through 4 and 6.
I dissent from the opinion on issues 5 and 7.
     With regard to issue 5, it is my view that the statutory
aggravating circumstances which the District Court found to exist
do not exist in this case as a matter of law.              This Court's
conclusion to the contrary rests primarily on its statement that
the jury did & find Gollehon not guilty of deliberate homicide,
but only found that he did not act alone during the crime.          The
Court then quotes the legally correct instruction on accountability
in seeming support of the application of the two aggravating
circumstances at issue here.      The Court is in error.
     The Court's statement is incorrect and insupportable on the
record before us.    The record is clear that Gollehon was charged
with, and acquitted of, deliberate homicide; he was charged in the
alternative with     accountability    for   deliberate homicide    and
convicted of that charge.
     Nor    does   the   quoted   instruction   support    the   Court's
conclusion.   The instruction properly directed the jury that, to
convict Gollehon of accountability for deliberate homicide, it need
only find that a deliberate homicide was committed and that either
or both defendants #'either before or duringH the commission of the
offense solicited, aided or abetted the other in the "planning or
commission of the offense."       ~othingin the instruction required
the jury to find that Gollehon committed the offense of deliberate
homicide.
     To apply the aggravating circumstances at issue here required
the District Court to make two determinations.              First, the court
had to find that the offense involved was deliberate homicide.
There is no dispute about that fact.          Second, however, the court
had to find that the offense was committed by Gollehon.             See 5 46-
18-303(1)   and    (2),   MCA.      Given Gollehon's acquittal        on the
deliberate homicide charge and the instruction requiring only that
the defendant solicit, aid or abet before         or   during the commission
of the offense regarding the planning       or   commission of the offense,
it is my view that the District Court could not make the second
determination      required      for   application     of   the   aggravating
circumstances at issue.          This Court has stated that "without the
finding of a statutory aggravating circumstance, the death penalty
is inappropriate." State v. Keith (1988), 231 Mont. 214, 240, 754
P.2d 474, 489.     I conclude that the death penalty cannot be imposed

here because no statutory aggravating circumstance exists.
     In addressing issue 7, the Court concludes that the District
Court did not err as a matter of law in imposing the death penalty
on Gollehon.      It reaches this conclusion by focusing primarily on
the nature of "accountability,~
                              rather than on Montana's sentencing
statutes.    The Court relies on Illinois cases interpreting the
"parent" of our accountability statute; the Court does not,
however, examine whether Montana's sentencinq statutes are adopted
from Illinois or even whether they are similar to those in effect
in Illinois so as to legitimize the use of the Stanciel and &
cases in resolving this important issue which is truly a matter of
life and death.     For those reasons, and because it is my view that
an appropriate analysis of Montana's sentencing statutes precludes
application of the death penalty to Gollehon's conviction for
accountability for deliberate homicide, I dissent.
       The death penalty may be imposed in Montana only under the
limited circumstances provided by statute.            Specifically, that
sentence is available for the offenses defined in 8 8 45-5-102(a)
and (b), 45-5-303, and 46-18-220, MCA.     Only   §    45-5-102, MCA, is
relevant here.
       Section 45-5-102, MCA, describes when a person has committed
deliberate homicide.    Such an offense is committed when a person
I'purposely or knowingly causes the death of another human being."
Section 45-5-102 (1)(a), MCA.      Gollehon was charged with, and
specifically found not guilty of, this offense. Pursuant to        §   45-
5-102 (1) (b), MCA, the offense of deliberate homicide for which the
death penalty    is available also includes the crime commonly
referred to as "felony murder. " This offense is not at issue here.
Thus, the death penalty available for these offenses pursuant to 8
45-5-102(2), MCA, is not available here.
       Moreover, with regard to 5 45-5-102, MCA, the statute makes it
clear that the legislature is aware of how to include what we might
call    offshoot'^ homicides--such as felony murder--in the definition
of the offense of deliberate homicide for which the death penalty
is available. The legislature specifically included felony murder;
it did not include accountability for deliberate homicide.
       Other statutes also must be scrutinized to determine the
applicability of the death penalty in this case. Section 45-2-302,
MCA, describes when a person is legally accountable for the conduct
of another.     It is this accountability for deliberate homicide of
which Gol1e:hon was convicted.      That statute does not include any
sentencing provision. Other statutes addressing indirect offenses,
such     as   "conspiracy"   and   "attempt," do   contain   sentencing
provisions.     Those statutes, 5 5 45-4-102(3) and 45-4-103(3), MCA,
essentially provide      for the same sentence as the underlying
offense.      Again, it is clear that the legislature knows how to
include sentencing cross-references when it desires and intends to
do so.     It did not do so with regard to accountability.
       The Montana legislature has provided a 'Ifall back" sentence to
cover convictions for which it does not specify a penalty. Section
46-18-213, NCA, mandates that when no penalty is otherwise provided
for a felony, the sentencing court may sentence for any term not to
exceed 10 years in the state prison, a fine not to exceed $50,000,
or both.       I conclude that this statutory penalty applies to
Gollehon's conviction.
       The Court suggests that it is I, through my reasoning, who
would allow the perpetrator of a heinous crime to be sentenced to
a maximum of ten years' imprisonment. This is not so. The fact is
that it is the leqislature's job--not mine or this Court's--to
determine appropriate sentences for criminal offenders.             The
legislature has not clearly provided for the imposition of the
death penalty under these circumstances.      If its failure to do so
is an unintended result of legislative oversight, the legislature
can, and should, correct it.         Absent such an action, a proper
interpretation of the legislaturelsintent as reflected in present
sentencing statutes is that the death penalty is not available
here.
        It is my view that the Court's conclusion on this issue
violates the most fundamental canons of both judicial function and
statutory interpretation.       It has not interpreted the statutes at
issue here in accordance with their plain meaning.       Rather, it has
inserted into the statutes a criminal sentence--the most severe and
final sentence of all--not provided for by the Montana legislature,
in direction contravention of 9 1-2-101, MCA.        I cannot agree.

        The Court's approach also represents a radical departure from
the rule of lenity which has been embraced by this Court in
interpreting penal statutes and from its own controlling, and
recent, precedent.     In State v. Goodwin (1991), 249 Mont. 1, 813
P.2d 953, and State v. Van Robinson (1991), 248 Mont. 528, 813 P.2d
967, we affirmed our commitment to the following "classic rule of
construction of      criminal    statutes"   in   construing   sentencing
statutes:
        Penal statutes are construed with such strictness as to
        safeguard the rights of the defendant. . .       .[Plenal
        statutes are not to be extended in their operation to
        persons, things, or acts not within their descriptive
        terms, or the fair and clear import of the language used.
        Nothing can be read into penal statutes by implication.
Goodwin, 813 P.2d      at 966     (citation omitted).     See also Van
Robinson, 813 P.2d at 971, quoting Goodwin.           I submit that the

Court's analysis on this issue violates this classic rule by
extending the death penalty to a person and acts not within either
the terms or the fair and clear import of the language used by the
Montana legislature. The death penalty will be imposed on Gollehon
by implication.
        This Court also has agreed--until now--with the following
United States Supreme Court articulation of the rule of lenity:
     First, as we have recently reaffirmed, "ambiguity
     concerning the ambit of criminal statutes should be
     resolved in favor of lenity." In various ways over the
     years, we have stated that "when choice has to be made
     between two readings of what conduct Congress has made a
     crime, it is appropriate, before we choose the harsher
     alternative, to require that Congress should have spoken
     in language that is clear and definite." This principle
     is founded on two policies that have long been part of
     our tradition. First, "a fair warning should be given to
     the world in language that the common world will
     understand, of what the law intends to do if a certain
     line is passed. . .      . II   Second, because of the
     seriousness of criminal penalties, and because criminal
     punishment usually represents the moral condemnation of
     the community, legislatures and not courts should defined
     criminal activity. This policy embodies "the instinctive
     distaste against men languishing in prison unless the
     law-maker has clearly said they should." Thus, where
     there is ambiguity in a criminal statute, doubts are
     resolved in favor of the defendant.
Goodwin, 813 P.2d at 967 (citations omitted).    This classic and
governing rule is applicable here and mandates a conclusion that
the death penalty cannot be imposed on Gollehon.    Yet, the Court
totally ignores even the existence of the rule of lenity in
analyzing the availability of the death penalty in this case. The
Court's confusing references to Goodwin in the companion case of
State v. Turner certainly provide no help in fostering clarity in
this regard.   We are left to wonder whether this case signals the
death knell of the rule of lenity in Montana or, alternatively,
whether the Court intends to continue to embrace that rule only
where the underlying facts are less brutal and horrifying than
those encompassing the death of inmate Pileggi
     I feel no sympathy for Gollehon. Indeed, the brutality of the
acts upon which his conviction is based is surely beyond the
understanding and even the imagination of every decent and rational
human being.      The   fact   remains, however, that   the Montana
legislature has not provided for application of the death penalty
here.     I cannot allow my horror over the circumstances of this

crime to override my view of the result necessary here as a matter
of law.     I would remand this case to the District Court for
resentencing.




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




                                                Justice
                                                                -
                                    October 20, 1993

                             CERTIFICATE OF SERVICE

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


MICHAEL DONAHOE
Attorney at Law
46 N. Last Chance Gulch
Helena, MT 59601

Hon. Joseph P. Mazurek, Attorney General
Jennifer Anders, Assistant
Justice Bldg.
Helena. MT 59620

Christopher G. Miller
Powell County Attorney
Powell County Courthouse
Deer Lodge, MT 59722

John P. Connor, Assistant Attorney General
and Special Deputy Powell County Attorney
215 N. Sanders, Justice Building
Helena, MT 59620

                                               ED SMITH
                                               CLERK OF THE SUPREME COURT
                                               STATE OF M O N T m
