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




STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
DOUGLAS D. TURNER,
            Defendant and Appellant.




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


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

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


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



     This is an appeal from a jury decision to convict appellant
Douglas D. Turner (Turner) of deliberate homicide by accountability
in violation of 5 45-5-102(1) (a), MCA.          We hold that sufficient
proof was produced at trial to sustain the conviction; that the
trial court did not err in denying a severance motion; and that the
Montana statute providing for the imposition of a death penalty may
be   applied    to    persons   found   guilty    under   the    theory   of
accountability. We affirm.
     September 2, 1990, was the last day of the life of Gerald
Pileggi, a prisoner at the Montana State Prison.                Pileggi was
beaten to death with baseball bats on the exercise grounds of the
state prison.        Two prisoners, Turner and William Gollehon, were
eventually charged jointly with deliberate homicide, or in the
alternative, deliberate homicide by accountability.             Following a
joint trial, a jury found each defendant guilty of the alternative
charge of deliberate homicide by accountability.
     On February 27, 1992, the District Court conducted a separate
sentencing hearing for Turner in accordance with          46-18-301, MCA,
to determine the existence or nonexistence of aggravating and
mitigating circumstances for the purpose of determining what
sentence should be imposed.         Judge McLean determined that the
mitigating factors did not sufficiently outweigh the aggravating
circumstances to warrant leniency in sentencing.            On March 16,
1992, Turner was sentenced to death by lethal injection under 5 46-
19-103(3), MCA.   The District Court stayed Turner's execution on
May 16, 1992, pending appeal to this Court.
     Gerald Pileggi was an inmate at the Montana State Prison. He
was assigned to the high security side of the prison, or the "high
sidett it is commonly called in prison language.
     as                                             Pileggi worked
in the high side kitchen, which employed twenty-five to forty-five
inmates per shift, including the two men charged with his death.
Prisoners assigned to the high side actively sought kitchen duty as
it was considered good duty.
     In August of 1990, there was tension in the prison and this
was very evident in the high side kitchen. Some of the inmates who
worked in the kitchen, including Turner, did not like the fact that
convicted sex offenders were working there. As it developed, there
was a movement afoot to rid the kitchen of sex offenders or,
according to the inmates, to take back the kitchen from the sex
offenders.   Pileggi was a sex offender, and in August 1990, he was
attacked by three individuals. Pileggi told a correctional officer
that three inmates dragged him into the dish room and beat him up,
but he refused to identify the perpetrators. Turner, Gollehon, and
Daryl Daniels were terminated or dropped from kitchen work crews a
few days before Pileggits death.
     On September 2, 1990, Pileggi went out into the high side
exercise yard. The inmates on the high side were allowed to spend
time in the exercise yard every afternoon.     A softball game was
being played on the baseball diamond and inmates were walking
around a track that circled the exercise yard. During the exercise

                                   3
time, the yard is routinely patrolled by two correctional officers.
     Two correctional officers, Beckerleg and Spangberg, were on
duty that day.    As they began walking around the track, they
noticed that the softball game was breaking up and the inmates were
moving away from the area.     When the officers approached the
backstop on the baseball diamond they saw an inmate lying on the
ground with his head toward the backstop.    When they reached the
inmate they discovered it was Pileggi.    His face was bloody, and
the officers saw two baseball bats lying across his body.
     The officers immediately initiated prison procedure and
"called the yard in" --this means that the inmates were ordered to
go back into their units.      In addition, the two correctional
officers called for medical assistance.     Pileggi was removed by
medical personnel, given emergency treatment, and sent by air to
Missoula for treatment, but he died en route to a Missoula
hospital.
     The officers testified that when they found Pileggi he was
unconscious and appeared to have been severely beaten about the
head. Pileggi was alive but was bleeding profusely. His forehead
had been spilt open, the left side of his head was caved in, and as
a result of one of the blows, one of his eyes had popped out.
     A registered nurse at the prison, Carla Bielby, testified to
the extent of Pileggi's injuries and said that she was not able to
recognize Pileggi due to the severity of his injuries.          She
testified that Pileggi was having great trouble breathing due to
the quantity of blood in his throat.     She attempted to clear his
airway before transferring him to the infirmary.

                                 4
     Dr. Gary Dale, a forensic pathologist and a medical examiner
at the State Crime Lab in Missoula, performed an autopsy on Pileggi
the following day.    Dr. Dale concluded that Pileggi died as a
result of multiple injuries to the head and trunk.    Dr. Dale was
able to identify at least four blows, including a massive blow to
the top of the head which caused the skull to cave in; a major blow
to the left side of the face which collapsed the entire left side
of the forehead and caused the brain to tear and the eyeball to
rupture; a blow to the left jaw which caused both the upper and
lower jawbones to fracture; and a blow to the breastbone.   Dr. Dale
testified that another blow was likely delivered to the shoulder
area which tore the muscle underneath.
     Dr. Dale concluded that the injuries to the top of Pileggils
head and left forehead were fatal because they caused tearing of
the underlying brain.   He testified that any of the blows could
have been delivered while Pileggi was standing, but that the blow
to the left forehead was likely struck while the victim was lying
on the ground.
     While approximately 250 inmates were gathered in the high side
exercise yard in the prison at the time Pileggi was beaten to
death, none was available to testify as to what happened, even
though the beating appeared to have happened within sight of most
of those prisoners.   It was not until several months later, after
a thorough investigation by prison officials, that inmate J. D.
Armstrong volunteered information as to what happened at the time
of the killing. Other witnesses testified that they did not see or
know about anything that went on--not unlike the famous three

                                 5
monkeys, they saw nothing, heard nothing, and said nothing.
     Turner denied participating in the homicide and testified that
he was playing horseshoes with fellow inmates Tony Allen and
Gollehon at the time of the beating.    Gollehon asserted his Fifth
Amendment right and did not testify at the joint trial.
     Armstrong testified at trial that he was playing softball in
the prison exercise yard on September 2, 1990, the day of Pileggigs
death. He testified that shortly after the game started, Gollehon
approached him and asked him which bat was used the least.
Armstrong testified that he suspected Gollehon intended to start a
fight with Pileggi because Gollehon had stated a few days earlier
that he was going to "mess him [Pileggi] up."     He testified that
later in the game, he saw Gollehon confront Pileggi behind the
backstop as Pileggi was coming around the track.     Gollehon had a
bat in his hand, and the two men began to struggle for control of
it. Armstrong testified that he saw Turner coming around the track
in the opposite direction, with a bat in his hand, and that he saw
Turner strike Pileggi on the left side of his face.    Pileggi fell
to the ground immediately, whereupon Turner and Gollehon continued
to deliver blows to Pileggigs head and trunk in an axe-chopping
fashion.   Armstrong testified that he saw each defendant deliver
four or five blows, one after the other, and that these blows were
as hard as could be delivered.       After striking the many blows,
Armstrong testified, Gollehon flicked his bat onto Pileggigsbody.
Armstrong did not remember what Turner did with his bat. Armstrong
testified that as soon as the other inmates realized what had
happened, there was a "mass exodus" from the softball field.

                                 6
      Armstrong testified further that while waiting for guards to
discover Pileggi, he saw Gollehon sitting down, though he did not
see where Turner had gone.            Armstrong noticed that Gollehon had
blood spatters on his pants.           He told Gollehon that he had better
cut off his pant legs or roll them up. Gollehon rolled up his pant
legs to get through the patdown search when the yard was called in.
Gollehonts pants were found later during a shakedown of his cell
along with a blood s m e a r e d t o w e l .   T h e s e i t e m s w e r e w e t and had

been folded and placed under a pillowcase.
      Inmate William Arnot was also an eyewitness to the beating and
testified for the State at trial,                Arnot was playing softball
against Armstrong's team on the day of Pileggits death.                              He
corroborated Amstrong's            testimony that        it was      Gollehon who
initially approached Pileggi with the bat in hand. Arnot testified
that he saw Pileggi get hit on the side of the face as he and
Gollehon struggled for control of the bat and that Turner then
approached and struck a blow to Pileggi, after which he Ifdropped
like a tree."       Arnot estimated that Gollehon and Turner each hit
P i l e g g i w i t h the bats f i v e or s i x t i m e s after he h i t t h e ground.

These facts were recited to the jury and referred to during the
sentencing hearing that brought about Turner's death sentence.
      Another inmate witness, Greg Carpenter, testified at trial
that he was not in the yard but was writing a letter in his cell
during the exercise period. He testified that he heard a commotion
and looked out the window to see at least nine to twelve inmates,
whom he described as tlsharks,Mconvening in a frenzy in the
backstop area.       After the inmates dispersed, Carpenter saw a body

                                          7
lying on the ground. He testified that he could not recognize any
of the inmates.
     Six other inmates testified on behalf of Turner during his
case-in-chief. Inmate Puliafica testified, without identifying the
individual involved, that:
     I saw a guy -- I heard an argument and I looked up and I
     saw a guy confronting Pileggi, he was poking him in the
     chest, lipping off to him, trying to provoke him to
     fight. And that went on for a little while. And they
     got into an argument that turned into a scuffle. And
     somebody came up behind him with a bat and hit him in the
     head with it. And then hit him again when he went down.
     And then the first individual that started it went and
     got a bat and they beat him.
     Inmate Tony Allen testified that he was playing horseshoes
with Turner and Gollehon on the afternoon of the attack.    Inmate
David DePue testified that he saw Turner and Gollehon in the
horseshoe pits that afternoon while he was gardening nearby.
Inmate Steven Wall, Turner's cellmate, testified that Turner did
not appear nervous nor did he observe anything unusual about Turner
or his clothing when he returned to the cell after the yard was
called in on September 2, 1990. All of Turner's witnesses admitted
that they did not reveal any of this information while Turner was
being held in maximum security pending further investigation of the
crime.
     Turner raises several issues:
     1.   Did the District Court err when it sentenced Turner to
death for his conviction of accountability for deliberate homicide?
     2.   Did the District Court err in refusing to grant Turner's
motion for severance of trials?
     3.   Should this Court uphold Turner's death sentence on
automatic review?
    The facts presented in this case require this Court to
consider the following statutes: 0 5 45-2-301, -302, 45-5-102(2),
46-18-220, 46-18-303, -304, and -305, MCA.       For the reader's
convenience, relevant portions of these statutes are set forth
below.
         45-2-301. Accountability for conduct of another. A
    person is responsible for conduct which is an element of
    an offense if the conduct is either that of the person
    himself or that of another and he is legally accountable
    for such conduct as provided in 45-2-302, or both.

          45-2-302. When accountability exists. A person is
     legally accountable for the conduct of another when:
          (1) having a mental state described by the statute
     defining the offense, he causes another to perform the
     conduct, regardless of the legal capacity or mental state
     of the other person:
          (2) the statute defining the offense makes him so
     accountable; or
          (3) either before or during the commission of an
     offense with the purpose to promote or facilitate such
     commission, he solicits, aids, abets, agrees, or attempts
     to aid such other person in the planning or commission of
     the offense. However, a person is not so accountable if:
           (a) he is a victim of the offense committed, unless
     the statute defining the offense provides otherwise; or
           (b) before the commission of the offense, he
     terminates his effort to promote or facilitate such
     commission and does one of the following:
           (i) wholly    deprives his     prior   efforts of
     effectiveness in such commission;
           (ii) gives timely warning to the proper law
     enforcement authorities; or
           (iii) otherwise makes proper effort to prevent the
     commission of the offense.


          45-5-102.   Deliberate homicide.
          ...
          (2) A person convicted of the offense of deliberate
     homicide shall be punished by death as provided in 46-18-
     301 through 46-18-310, by life imprisonment, or by
     imprisonment in the state prison for a term of not less
     than 10 years or more than 100 years, except as provided
     46-18-220.   Sentences for certainoffenses committed
in state prison   -- death penalty. A person sewing a
sentence of imprisonment in the state prison convicted of
the offense of attempted deliberate homicide, aggravated
assault, or aggravated kidnapping committed while
incarcerated at the state prison shall be sentenced to
death or life imprisonment as provided in 46-18-301
through 46-f8-310.


     46-18-303, Aggravating circumstances. Aggravating
circumstances are any of the following:
     (1) The offense was deliberate homicide and was
committed by a person serving a sentence of imprisonment
in the state prison.
     (2) The offense was deliberate homicide and was
committed by a defendant who had been previously
convicted of another deliberate homicide.
     .   *   -




     46-18-304. Mitigating circumstances. Mitigating
circumstances are any of the following:
     (1) The defendant has no significant history of
prior criminal activity.
     (2) The offense was committed while the defendant
was under the influence of extreme mental or emotional
disturbance.
     (3) The defendant acted under extreme duress or
under the substantial domination of another person.
     (4) The capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired.
     ( 5 ) The victim was a participant in the defendant's
conduct or consented to the act.
     (6) The defendant was an accomplice in an offense
committed by another person, and his participation was
relatively minor.
      (7) The defendant, at the time of the commission of
the crime, was less than 18 years of age.
      (8) Any other fact that exists in mitigation of the
penalty.

     46-18-305. Effect of aggravating and mitigating
circumstances. In determining whether to impose a
sentence of death or imprisonment, the court shall take
     into account the aggravating and mitigating circumstances
     enumerated in 46-18-303 and 46-18-304 and shall impose a
     sentence of death if it finds one or more of the
     aggravating circumstances and finds that there are no
     mitigating circumstances sufficiently substantial to call
     for leniency. If the court does not impose a sentence of
     death and one of the aggravating circumstances listed in
     46-18-303 exists, the court may impose a sentence of
     imprisonment for life or for any term authorized by the
     statute defining the offense.



     Did the District Court err when it sentenced Turner to death
for his conviction of accountability for deliberate homicide?
     Turner argues that the District Court committed reversible
error when it sentenced him to death for his conviction of
accountability for deliberate homicide, in view of the fact that
the jury found him not guilty of deliberate homicide.      He argues
that under Montana law, the death penalty is not a possible
punishment for accountability for deliberate homicide, and it is on
that basis that he asks this Court to reverse his death sentence.
     Turner argues that the death sentence statutes are very
specific as to which crimes warrant death sentences.       He argues
that under 5 46-18-220, MCA, the death penalty may be imposed on
persons serving a sentence in Montana State Prison convicted of
deliberate   homicide   or   attempted   deliberate   homicide   while
incarcerated in the state prison, but the statute does not require
the death penalty for persons convicted of accountability for
deliberate homicide.    It is his position that for purposes of
sentencing, the important distinction between accountability for
deliberate homicide and deliberate homicide must be maintained, and
that to do otherwise would contravene the legislature's intention.
Further, Turner argues that the aggravating circumstances listed in
5 46-18-303, MCA, do not include accountability for deliberate
homicide and that it is only through merging the statutes that the
court is able to find the existence of aggravating circumstances
set forth in 5 46-18-303(1) and (2), MCA.
     Turner emphasizes that he was acquitted of deliberate homicide
and argues that the District Court, therefore, committed reversible
error in applying the aggravating circumstances set forth in 5 46-
18-303 (1) and (2), MCA.
     Turner relies on State v. Goodwin (1991), 249 Mont. 1, 813
P.2d 953, arguing that Montana's penal statutes must be strictly
construed and any ambiguities must be resolved in favor of the
accused. This Court noted in Goodwin that the legislature did not
clearly state the crimes to which certain statutory provisions
applied, and that the district court must interpret the statute in
a way most favorable to the person against whom enforcement is
sought.
     The Montana Legislature has statutorily abrogated the common
law rule of strict construction so far as the penal code is
concerned.   Section 45-1-102(2), MCA, provides:
          The rule of the common law that penal statutes are
     to be strictly construed has no application to this code.
     All its provisions are to be construed according to the
     fair import of their terms with a view to effect its
     object and to promote justice.
See Continental Supply Co. v. Abell (1933), 95 Mont. 148, 163, 24
P.2d 133, 137, in which this Court held that the rule that statutes
in derogation of common law must be strictly construed does not
apply to penal code provisions.
     Insofar as Goodwin is in conflict with 5 45-1-102(2), MCA, it
is overruled.    Goodwin did not address that statute, but instead
involved obvious ambiguities in a statutory sentencing scheme.
Thus, the rule announced in Goodwin has no application here. Here,
the statutes are clear and unambiguous.       The law of accountability
is properly presented and understood. To interpret the statute as
Turner does in his argument would frustrate the obvious legislative
purpose of Montana's accountability statutes. Instead, this Court
will construe the sentencing scheme for accountability the same way
that the District Court did.
     In response to Turner's argument, the State argues, and we
agree, that the theory of accountability finds Turner legally
responsible     for the   crime   of    deliberate   homicide,   and   any
punishment that is properly imposed for deliberate homicide is
properly imposed for accountability.
     We hold that these are not separate offenses.               A person
convicted of deliberate homicide by accountability is guilty of the
substantive offense of deliberate homicide and must be sentenced
for that offense in accordance with 5 45-5-102(2), MCA.
     Sections 45-2-301, -302, and -303, MCA, are taken from the
language of 5 5 5-1, 5-2, and 5-3 of the Illinois Criminal Code of
1961.   In State v. Murphy (1977), 174 Mont. 307, 311, 570 P.2d
1103, 1105, this Court stated that in adopting a statute from
another state, we adopt the construction placed on the statute by
the highest court of the sister state. Accordingly, the statutory
ancestors of 5     45-2-301, -302, and -303, MCA, confirm that a
person convicted of accountability for deliberate homicide is in

                                   13
fact convicted of deliberate homicide.
    The Illinois Supreme Court upheld a similar statute on
accountability in the case of People v. Ruiz (Ill. 1982), 447
N.E.2d 148, cert. denied, 462 U.S. 1112 (1983); reh'g denied, 463
U.S. 1236 (1983).    In that case, as here, the appellant denied he
did any act causing the death of the deceased and that his
conviction on the principle of accountability could not form the
basis for imposition of the death sentence.     See also People v.
Stanciel (Ill. 1992), 606 N.E.2d 1201.
     In this case, two eyewitnesses testified that both Turner and
Gollehon struck numerous blows to the head and body of the
deceased; that Turner's first blow with a baseball bat felled the
deceased; and that thereafter, both men struck the victim numerous
times in the head and body. In addition, other evidence placed the
two men in the area where the assault occurred.     These facts were
all considered by the jury, with proper instruction to the jury
setting forth the principle of accountability, and the record
proves the appellant guilty as charged beyond a reasonable doubt.
     In In re B.D.C.    (1984), 211 Mont. 216, 687 P.2d 655, this
Court explicitly established that accountability is not a separate
offense from the crime for which the actor assumes accountability.
In B.D.C., a youth charged with criminal homicide by accountability
alleged that his case could not be transferred to the district
court from youth court because he had not been charged with
criminal homicide.     B.D.C.,   687 P.2d at 657.   We rejected the
defendant's contention, stating:
     B.D.C. seems to be arguing that when one is charged with

                                  14
    an offense by accountability, he or she is being charged
    with a separate or different offense. Accountability,
    however, is merely a conduit by which one is held
    criminally accountable for the acts of another. There is
    no separate offense, only the underlying offense which
    has been physically committed by another, but for which
    the defendant is equally responsible because of his or
    her conspiring or encouraging participation.
B.D.C., 687 P.2d at 657. We note that courts of other states with
similar statutory schemes which refer in some instances to the old
language of accessory, aiding and abetting, and accomplice, have
decided that a person guilty by accountability is guilty of the
substantive crime itself.   See Gordon v. State (Alaska 1975), 533
P.2d 25; State v. Weis (Ariz. l962), 375 P.2d 735, cert. denied,
389 U.S. 899 (1967); People v. Larson (Colo. 1977), 572 P.2d 815;

People v. Martin (Colo. 1977), 561 P.2d 776; State v. Shon (Hawaii
1963), 385 P.2d 830; State v. Palermo (Kan. 19781, 579 P.2d 718;
State v. Baylor (Wash. 1977), 565 P.2d 99; State v. Oldham (Idaho
1968), 438 P.2d 275.   Earlier Montana statutes that referred to
principals and accessories have been amended.

     Turner was charged with deliberate homicide under       45-5-
102(1) (a), MCA, (Count I), and with accountability for deliberate
homicide in violation of 5 45-2-302 and 5 45-5-102(1) (a), MCA,
(Count 11), as set forth in the amended information.     The State
charged   alternative violations because   it was   impossible to
determine which defendant struck the blow that actually killed the
victim.   Charging accountability f o r deliberate homicide allowed
the State to allege that the defendants aided and abetted each
other in the murder of Pileggi.   See State v. Duncan (1991), 247
Mont. 232, 239, 805 P.2d 1387, 1392; State v. Riley (l982), 199
Mont. 413, 424, 649 P.2d 1273, 1279.
     Following a joint trial, the jury convicted both defendants of
deliberate homicide by accountability.            The District Court held a
separate sentencing hearing in accordance with 5 46-18-301, MCA,
which provides:
     When a defendant is found guilty of or pleads guilty to
     an offense for which the sentence of death may be
     imposed, the judge who presided at the trial or before
     whom the guilty plea was entered shall conduct a separate
     sentencing hearing to determine the existence or
     nonexistence of the circumstances set forth in 46-18-303
     and 46-18-304 for the purpose of determining the sentence
     to be imposed. . . .
Section 46-18-305, MCA, permits the court to impose a death
sentence       only   where   it:    (1) considers     the   aggravating      and
mitigating circumstances enumerated in 5 5 46-18-303 and 46-18-304,
MCA; (2) determines the presence of at least one of the aggravating
circumstances listed          in 5   46-18-303, MCA; and          (3)   finds no
mitigating circumstances that are sufficiently substantial to call
for leniency. Here, the District Court found beyond a reasonable
doubt that the aggravating factors in         §   46-18-303(1) and ( 2 ) , MCA,

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




     Did the District Court err in refusing to grant Turnerts
motion for severance of trials?
     At the time of Turner1 trial, Montana I s joinder and severance
                           s
statute,   §    46-11-404, MCA (1989), provided in relevant part:
               (3)    Two or more defendants may be charged in the
     same indictment or information if they are alleged to
     have       participated    in   the   same   series     of   acts   or
      transactions constituting an offense or offenses. Such
      defendants may be charged in one or more counts together
      or separately, and all of the defendants need not be
      charged in each count.
           (4) If it appears that a defendant or the state is
      prejudiced by a joinder of related prosecutions or
      defendants in a single charge or by joinder of separate
      charges or defendants for trial, the court may order
      separate trials, grant a severance of defendants, or
      provide any other relief as justice may require.
      It is Turner's position that the District Court erred when it
refused to grant him a severance, and that in doing so it denied
him a fair trial.     Turner argues that at the time of his trial,
Montana law did not allow a joinder of defendants in a single
prosecution when it would prejudice one defendant, 5 46-11-404(4),
MCA   (1989) (amended 1991), and that although judicial economy
remains an important consideration, it must be secondary to the
right of the accused to a fair trial.      State v. Van Pham (Kan.
1984), 675 P.2d 848.
        Turner argues that denial of severance prejudiced him in two
ways.     First, he could not elicit his co-defendant Gollehon's
testimony for his defense; second, when Gollehon was put on trial,
Gollehon's defense was conducted in a manner that seriously
prejudiced Turner.
        At the joint trial, Gollehon asserted his Fifth Amendment
right against self incrimination, the effect of which was to make
him unavailable to Turner as a witness.      Turner alleges that he
could not effectively defend his credibility without Gollehon's
testimony.     Turner contends basically that he was deprived of the
chance to cross-examine Gollehon; therefore the court denied him a
fair trial.
     Turner also alleges that due to his close friendship with
Gollehon, a jury could infer that the overwhelming evidence against
Gollehon implied that he, Turner, was involved in the killing. He
further argues that no physical evidence linked him to the crime,
whereas, in contrast, the torn bloody pants found in Golfehonls
cell presented strong evidence of Gollehonls involvement; that
evidence unfairly prejudiced Turner when severance was denied.
     In considering whether there should be a j o i n t trial, w e have
held that the district court must weigh the State's interest in
judicial economy against the defendant's right to a fair trial:
     Joint trials speed the administration of criminal
     justice, conserve judicial time, lessen the burden on
     prospective jurors and obviate the necessity of recalling
     witnesses. On the other hand, the trial court must weigh
     these benefits against the potential prejudice to a
     defendant which may arise as a result of his being tried
     with another defendant.
State v. Strain (19801, 190 Mont. 44, 55-56, 618 P.2d              331,   338.

The decision whether to grant a severance is within the sound
discretion of the district court.            State v. Graves (19901, 241
Mont. 533, 538, 788 P.2d 311, 314.         This Court will not substitute
its judgment for t h a t of t h e d i s t r i c t court.   State v . Campbell
(l98O), 189 Mont. 107, 120-121, 615 P.2d 190, 198 (citing United

States v. Cuesta (5th Cir. 1979), 597 F.2d 903, 919, cert. denied
444 U.S. 964 (1979).
      In striking a balance between prejudice to a                  criminal
defendant and      judicial economy, this Court has stated that
llconsiderationsof judicial economy exert strong pressure in favor
of joint trials."      Campbell, 615 P.2d at 198 (citing United States
v. Dohm (5th Cir. 1979), 597 F.2d 535,         540, on rehlg 618 F.2d 1169
     The factors that provide the basis for the predisposition
     for joint trials include expedition ofthe administration
     of justice, reduction in the congestion of trial dockets,
     conservation of judicial time, reduction of burden on
     citizens who serve on juries in terms of time and money
     sacrificed, and avoidance of the necessity of recalling
     witnesses who would otherwise have to testify only once.
Camwbell, 615 P.2d at 198 (citing United States v. Brady (9th Cir.
1978), 579 F.2d 1121, 1128, cert. denied, 439 U.S. 1074 (1979)).
Because of these important considerations, the burden of showing
prejudice rests upon the defendant.
     In showing prejudice, it is not sufficient that the
     defendant prove some prejudice or that a better chance of
     acquittal exists if separate trials are held. Rather,
     the defendant must show the prejudice was so great as to
     prevent a fair trial. .  . . Given this high standard of
     proof and the deference afforded the discretion of the
     trial court's judgment on balancing prejudice against
     judicial economy, reversal of a decision not to sever
     criminal charges is seldom granted.
Camwbell, 615 P.2d at 198 (citations omitted).
     Applying these considerations to the case before us, we find
that the District Court did not abuse its discretion in denying
Turner's motion for severance.    Both defendants were charged with
the same offenses, which arose out of a single incident. The State
relied on the same eyewitness testimony to convict both defendants.
The eyewitness testimony was the State's strongest evidence of
guilt, and such testimony would have been required at both trials
if Turner and Gollehon had been tried separately.
     As the State's eyewitnesses were protective custody inmates,
special security procedures had to be used for these witnesses as
well as for all of the inmate witnesses who testified on behalf of
Turner and Gollehon.   Separate trials would have resulted in more
than the usual amount of judicial expense because of these security
measures.    Further, as the District Court noted, the publicity
associated with the first trial might have precluded the second
defendant from receiving a    fair trial.     The ~istrict Court
concluded that:
     [Blecause of the nature of this trial being committed at
     a State institution, it is going to receive statewide
     publicity.    The second trial would be virtually an
     impossibility to find a well informed and educated jury
     that has not been tainted because of the publicity that
     was rendered in the previous case, and I would anticipate
     this case would receive statewide coverage. Secondly,
     because this offense was committed at the Montana State
     Prison, most of the witnesses listed would be coming from
     the Montana State Prison, as inmates, and it would create
     an impossible situation to try and keep all the witnesses
     from discussing this case with any other witness until
     such time as the second trial has been concluded. And in
     my opinion, the interest of justice would be thwarted if
     we were to continue the case as the witnesses would all
     be tainted and suspect by the time the second trial came.
     Both defendants raised defenses of alibi or mistaken identity
and used the same witnesses to support these defenses.   There was
no disagreement or apparent hostility between the defendants at
trial regarding their version of events.    Turner's testimony was
consistent with that of his defense witnesses, and Gollehon offered
no conflicting evidence that would have prejudiced Turnervs case.
Nor does the fact that the State was able to produce physical
evidence that implicated defendant Gollehon conclusively establish
prejudice.
     While a great disparity in proof may be    sufficient to
     allow a severance in certain cases, the    fact that the
     evidence against one codefendant is more   damaging than
     the evidence against another one is not     a ground for
     severance.
Bradv, 579 F.2d at 1128.   Bradv establishes that a certain amount
of prejudice is to be expected in every joint trail.
     Here, Turner simply ignored all of the State's circumstantial
evidence that pointed to his quilt, not to mention the State's
eyewitness testimony, which linked him directly to Pileggi's death.
The fact that Turner and Gollehon were close friends was peripheral
to the substantial number of facts that established their guilt
beyond a reasonable doubt.
     Although the testimony of the defense witnesses directly
conflicted with that of the State's eyewitnesses, the jury resolved
this conflict by its verdict.   Moreover, the jury was specifically
instructed by the District Court that it must find each defendant
guilty   of    deliberate   homicide   or   deliberate   homicide   by
accountability, and that it was not enough to convict one on the
basis of the co-defendant's guilt.
     It is a well recognized principle of law that juries are
presumed to follow the law as given them.     Opper v. United States
(1954), 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101, 109-110;
McKenzie v .   Risley (9th C i r 1988), 842 F.2d 1525, 1533, cert.
denied, 488 U.S. 901 (1988). In view of the instructions and the
evidence presented at trial, there is no basis upon which to
conclude that Turner was convicted simply because he was associated
with and tried alongside Gollehon.
     Turner relies on an Arizona case for the proposition that a
defendant may be prejudiced by the actual conduct of a co-
defendant's defense to the point that severance is required, State
v. Cruz (Ariz. 1983), 672 P.2d 470, 474, Cruz, however, involved
conduct by co-defendant's counsel that was in no way analogous to

                                  21
                                                                          0

what is involved here.      In Cruz, co-defendant's counsel elicited
damaging testimony on cross-examination of a state's witness
regarding the defendantfs involvement with organized crime and
other criminal. activity.      The Arizona Supreme Court noted that
ll[t]hisevidence would not have come out if appellant had not been
tried with      [co-defendant] McCall   and it would not have been
admissible in the state's case at a separate trial."         Cruz, 672
P.2d     at   475.   The   Arizona   court   reversed the   defendant's
conviction, ruling that the district court's admonitions were
insufficient to cure the prejudice caused by the introduction of
this evidence, so that the district court should have immediately
granted a mistrial or severed the cases. That is not what happened
here.
        Here, Gollehon did not testify, and Gollehoniscounsel did not
elicit evidence of other crimes committed by Turner, nor was his
questioning intended to point the finger at Turner and away from
Gollehon, as was the case in Cruz.
        We hold that the District Court did not err in refusing to
grant Turner's motion for severance.




        Should Turnerlsdeath sentence be upheld on automatic review?
        The record indicates that Turner entered the Montana State
Prison at the age of sixteen, after he was convicted of deliberate
homicide for taking the lives of three people.         He came to the
state prison as a result of a sentence he received from Judge Cox
in Dawson County. At the time of that sentencing he was expecting
390 years of incarceration without benefit of parole--in other

words, life in prison.
     After sentencing, Turner was placed in the youthful offenders
cube at Montana State Prison.      There, he was housed with other
youthful offenders and given an opportunityto participate in group
activities and   mental   health   treatment programs.    In     that
environment he was given opportunities to correct his many problems
and change his life.      Instead of taking advantage of those
opportunities, Turner chose to ignore them.   The record indicates
that Turner requested to be terminated from the youthful offenders
cube.   All of this information was in the hands of the sentencing
judge at the time Turner was sentenced for Pileggi's death.
     In assessing whether this Court should uphold Turner's death
sentence, we look to the sentencing judge's conclusions wherein he
stated:
          No cause appearing why the sentence should not be
     imposed, it is hereby the judgment of this Court that you
     are guilty of the underlying offense, to wit: deliberate
     homicide by accountability. In attempting to decide what
     sentence to impose in this case, Mr. Turner, I spent a
     great deal of time going over the reports that have been
     submitted concerning your childhood and the efforts
     towards rehabilitation that were made on your behalf by
     the State and all of its agencies.         That includes
     numerous attempts at drug and alcohol rehabilitation,
     placement in different facilities, and all of those
     efforts have proved unsuccessful. The main reason they
     have proven unsuccessful is you have not expended one
     iota of energy towards seeing any of those programs to a
     successful end. The duty of this Court is to assure that
     we protect the members of society that you are placed in
     with. Within our society we have different sub-groups of
     society. Yours being the society at the Montana State
     Prison. I have studied section 46-18-303, and find that
     the aggravating circumstances stated in sub (1) and sub
     (2) apply to your case. I have considered your age at
     the time of the commission of the offense and find that
     you were 18 years of age, over the age of 18 at the time
    of the commission of the offense, and therefore, under,
    or properly under Section 303 for aggravation
    consideration. Further, after looking at your childhood
    and the experiences you have suffered, I find that the
    mitigation in Section 46-18-304 does not apply at this
    time. There are several members of our society who have
    gone through the same childhood you have gone through,
    and have gone on to be productive and very successful
    members of society.
         In balancing the two statutes, I find that there is
    no way short of imposing the death penalty that the
    society at the Montana State Prison can be incarcerated,
    and by your own statements here in court, you do not want
    to be placed in the Maximum Security Unit. Therefore, it
    is the judgment of this Court that you be sentenced to
    the ultimate penalty, that is, punishment by death, and
    1'11 set that sentencing between the hours of 12:Ol a.m.
    and 6:00 a.m. on May 7th of 1992.
     In accordance with   §   46-18-112 (1)(e), MCA, the District Court

refused to consider any victim impact statements as a part of the
presentence report. The District Court informed defense counsel at
the hearing on aggravating and mitigating circumstances that the
court was not going to consider the fact that Turner had recently
been arraigned on charges stemming from his alleged involvement in
the 1991 prison riot:
     Mr. Sheehy [defense counsel], in that regard, I will
     advise you that I will not consider the riot in any way
     in relationship to this sentence.
     Nothing in the thirteen pages of findings and conclusions
indicates that the court was persuaded by public opinion or media,
any personal bias or prejudice, any fear of community objection, or
any other improper circumstances that might have affected its
sentencing decision. Therefore, the first factor of       §   46-18-310,
MCA, has been satisfied.          The second factor, a finding of
aggravating circumstances, pursuant to 5 46-18-303, MCA, also has
been satisfied.   The District Court also considered each of the
mitigating circumstances listed in 5 46-18-304, MCA, and found that
"Turner's history of abuse, his alcohol use, his prison record, his
efforts toward rehabilitation, his character and prospects for
rehabilitation, as well as all other particular evidence submitted
in mitigation,   does not       outweigh the   evidence presented   in
aggravation   ....    II


     Turner does not challenge the District Court's findings in
this automatic review proceeding, nor is there a legitimate basis
on which the findings could be challenged.         They are based on
records, reports, and evaluations compiled         in the course of
Turner's 1987 prosecution, evidence adduced at trial including
Turner's own trial testimony, and the evidence presented at the
hearing on aggravating and mitigating circumstances.       The record
entirely supports the District Court's findings as to mitigating
circumstances, and this Court affirms those findings in this
automatic review procedure.
     Under 5 46-18-310(3), MCA, this Court is required to determine
"whether the sentence of death is excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime
and the defendant."        A review of this factor serves as a check
against "the random or arbitrary imposition of the death penalty,"
which would violate the Eighth Amendment's prohibition against
cruel and unusual punishment.       Gregg v. Georgia (1976), 428 U.S.
153, 206, 96 S.Ct. 2909, 2940, 49 L.Ed.2d 859, 893, reh'g denied,

429 U.S. 875 (1976).

     In determining whether a death sentence is disproportionate,
this Court reviews the gravity of the offense, the brutality with

                                    25
which it was committed, and the factors, if any, which led to a
call for leniency, with the purpose of making certain that there
has been no discriminatory action on the part of the sentencing
judge. State v. Kills on Top (Vern) (1990), 243 Mont. 56, 109, 793
P.2d 1273, 1308, cert. denied, 111 S.Ct. 2910 (1991).        Section 46-
18-310(3), MCA, requires the court to "include in its decision a
reference to those similar cases it took into ~onsideration.~'
     Since 1973 this Court has considered nine death penalty cases:
State v. Langford (lggl), 248 Mont. 420, 813 P.2d 936; Kills On Top
LVern); State v. Kills On Top (Lester) (1990), 241 Mont. 378, 787
P.2d 336, cert. denied, 111 S.Ct. 2910 (1991); State v. Dawson
(1988), 233 Mont. 345, 761 P.2d 352, cert. denied, 491 U.S. 910
(1989): State v. Keith (1988), 231 Mont. 214, 754 P.2d 474; State
v. Smith (1985), 217 Mont. 461, 705 P.2d 1087, cert. denied, 474
U.S. 1073 (1986); State v. Fitzpatrick (1980), on remand, 186 Mont.

187, 606 P.2d 1343, cert. denied, 449 U.S. 891 (1980); State v.
Coleman (l978), 185 Mont. 299, 605 P.2d 1000, cert. denied, 446
U.S. 970 (1980); State v. McKenzie (1976), 171 Mont. 278, 557 P.2d
1023, vacated on other grounds, 433 U. S. 905 (1977), on remand, 177
Mont. 280, 581 P.2d 1205 (1978), vacated, 443 U.S. 903 (1979), on
remand, 186 Mont. 481, 608 P.2d 428 (1980), cert. denied, 449 U.S.
1050 (1980).
     All of these cases involved a death penalty imposed for the
aggravated     kidnapping   and   subsequent homicide   of    a   victim.
Although the circumstances surrounding the killings were different
in those cases, the brutality and senselessness of the offense
committed in this case is certainly comparable to, if not more

                                    26
egregious than, the above-cited cases.        Of those cases, the
homicide in the Kills On Top cases is most similar in that it was
a single homicide involving two defendants.
     In the Kills on Top cases, the victim was beaten to death with

a pipe, a tire iron and then a rock following an all-night joyride
during which the victim was forced to ride naked in the trunk of
the car after the defendants had robbed him.       Eventually, the
defendants decided that the victim must die so that they would not
get caught.   Although Vern Kills On Top was not present when his
brother Lester delivered the final fatal blows, he participated
directly in many events that led up to the killing.     This Court
concluded that Vern Kills On Top "was a major participant in the
felony and exhibited a reckless indifference to human life."    793
P.2d at 1308.   As he met the culpability standard set forth in
Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d
1140, and Tison v. Arizona (1987), 481 U.S. 137, 107 S.Ct. 1676, 95
L.Ed.2d 127, his death sentence did not constitute cruel and
unusual punishment, nor was it disproportionate to his crime.
     Here, Turner's conduct was significantly more culpable than
that of Vern    Kills On Top.     The testimony of the State's
eyewitnesses establishes that Turner was an active participant in
the beating death of Gerald Pileggi.   Turner struck the first blow
which caused Pileggi to "drop[ 1 like a tree."   While Pileggi lay
defenseless on the ground, Turner and Gollehon continued to beat
him four to six times apiece with as much force as could be
delivered. Thus, the evidence supports the conclusion that Turner
killed, attempted to kill, intended to kill or at a minimum, acted

                                27
with reckless disregard for human life, and his death sentence does
not violate the Eighth Amendment's prohibition of cruel and unusual
punishment.
     We affirm the District Court's death sentence.    Aggravating
circumstances exist without question, and there are no mitigating
circumstances which require leniency.

                                        F,




          Justices
Justice Karla M. Gray, dissenting.

       I respectfully dissent from the Court's opinion that Turner
was    properly   sentenced   to   death    for    his   conviction   of
accountability for deliberate homicide.           Although the issue is
addressed somewhat differently here than in the companion case of
State v l Gollehon, my dissent there is applicable here as well and
is incorporated herein.
       In addition, I see no conflict between 5 45-1-102(2), MCA, and
our decision in State v. Goodwin.          Both require this Court to
construe penal statutes "according to the fair import of their
terms.      Section 45-1-102(2), MCA.        Goodwin merely prohibits
extendinq penal statutes beyond "[the statutels]descriptive terms,
or the fair and clear import of the language used.I1        813 P.2d at

966.   The Court's decision here meets neither standard; it focuses
on the ''separate offenset1
                          concept without ever addressing precisely
how the offense for which Turner was convicted fits squarely and
fairly within the language and terms of Montana's            sentencinq
statutes.    The fact is that our death penalty statutes do not, by
their clear terms, include accountability for deliberate homicide.
Absent legislative inclusion, the Court merely reads that offense
into the statutes in violation of 5 45-1-102(2), MCA, and Goodwin.
I cannot agree.
       Furthermore, the Court's references to Goodwin are, at best,
confusing. without much analysis, the Court concludes that Goodwin
is inapplicable here.      However, the Court also overrules some
unspecified portion of that case "to the extent" it is in conflict

                                   29
with   §   45-1-102(2), MCA.   The Court does not tell us precisely how
the conflict arises.      Nor does the Court explain how the statute,
in effect at the time our decision in Goodwin was issued, can now--
a short two years later--require this Court to retreat from the
strong language it utilized in Goodwin that we "are com~elledto
follow the classic rule of construction of criminal statutes"
regarding lenity cited therein.       Goodwin, 813 P.2d at 966-67.
       If this case represents the death knell of the rule of lenity
in Montana, I am saddened. More importantly, however, if this is
so, the Court ought to at least say so clearly so that the district
courts, the members of the practicing bar, and this Court in future
cases will know the answer.
       I would remand to the District Court for resentencing.




     Justice Terry N. Trieweiler and Justice William E. Hunt, Sr.,
join in the foregoing dissent of Justice Karla M. Gray.
                                   October 20, 1993

                            CERTIFICATE OF SERVICE

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


Edmund F. Sheehy, Jr.
Cannon & Sheehy
P.O. Box 5717
Helena, MT 59604

William F. Hooks
Appellate Public Defender
Capitol Station
Helena, MT 59620


Won. Joseph P. Mazurek, Attorney General
Jennifer Anders, Assistant
215 N. Sanders, Justice Bldg.
Helena, MT 59620

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


                                                ED SMITH
                                                CLERK OF THE SUPREME COURT
                                                STATE OF MONTANA
