                                                   No.      90-125

                         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                          1990



STATE OF MONTANA,
                         Plaintiff and Respondent,
    VS             .
JAMES CHARLES OLIVIERI,
                         Defendant and Appellant.



APPEAL FROM:                 District Court of the Eighth Judicial District,
                             In and for the County of Cascade,
                             The Honorable John M. McCarvel, Judge presiding.


COUNSEL OF RECORD:
                         For Appellant:
              I-             John Keith, Esq., Great Falls, Montana
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     5 * For Respondent:
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     L>J LLJ
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               ZE            Hon. Marc Racicot, Attorney General, Helena, Montana
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                             James Yellowtail, Assistant Attorney General,
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                              Helena, Montana
     . . \j                  Stephen E. Hagerman, Deputy County Attorney, Great
     L,?           2          Falls, Montana
         LA        2         P a t r i c k L. P a u l , County A t t o r n e y , G r e a t F a l l s , Montana
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                                                     Submitted on Briefs:                   August 16, 1990

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                                                                           Decided:          September 6, 1990
Filed:



                                                         Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     James Charles Olivieri appeals his felony conviction of
deliberate homicide, following a jury trial in the Eighth Judicial
District, Cascade County.   We affirm.
     Olivieri raises the following issue:
     Did the District Court properly refuse to instruct the jury
on the lesser included offense of criminal endangerment, or in the
alternative, mitigated deliberate homicide?
     During the early morning hours of January 14, 1988, James
Charles Olivieri and his life-long friend, Dominic Puliafico, were
driving by the Office Club in Great Falls, Montana,        when they
spotted and picked up a hitchhiker, Ethel Woods. Twenty-one-year-
old Ethel was a deaf-mute, who communicated with the two men by
writing notes. Shortly after discovering her handicap, Puliafico,
indicated to Olivieri that, "this would be perfect,I1 with regard
to raping Ethel.
      One of the notes Ethel wrote to Olivieri and Puliafico asked
if the two men knew of any parties occurring that night.    Olivieri
and Puliafico responded affirmatively and drove Ethel to their
apartment.   Outside of the apartment, the three encountered two
neighbors and Ray Canto, a friend of Olivieri and Puliafico who had
been with the two men earlier in the evening.    Following a brief
discussion, Olivieri, Puliafico, Ethel and Canto entered the
apartment.
     Shortly after entering the apartment, Olivieri began writing
suggestive notes to Ethel, asking her to engage in sexual inter-
course. Ethel refused.     Puliafico then choked Ethel until she was
unconscious.     Puliafico and Olivieri proceeded to remove Ethel's
clothes.   At this point, after Olivieri warned Canto that the
upcoming events were going to get serious, Canto chose to leave
the apartment.
     Puliafico then proceeded to rape and beat Ethel as she slipped
in and out of consciousness. Olivieri admitted to holding Ethel's
feet while Puliafico raped her, but denied raping or beating Ethel.
Instead, Olivieri admitted that during the time Puliafico raped and
beat Ethel, he watched the two and laughed.
     Thereafter, while the badly beaten Ethel was lying on the
floor, Olivieri and Puliafico went into the kitchen and ate
macaroni and cheese as they listened to what they believed were
Ethel's last breaths of life.    Puliafico then raped Ethel for the
second time.   Following the second rape and to ensure that she was
dead, Olivieri and Puliafico took turns striking Ethel on the back
of her head with a baseball bat, both men striking her twice.
     Olivieri and Puliafico then moved Ethel's nude body into a
bedroom.   Later that same day, they wrapped Ethel's body in a
carpet they obtained from the basement of the apartment. They then
weighted the carpet-wrapped body with a cinder block, which they
purchased at a local store. That evening, they removed the carpet-
wrapped body from the apartment and dumped it in the Missouri
                                  3
River, hoping that it would be destroyed by the two dams in that
area. The carpet-wrapped body, however, was discovered nearly two
months later on March 2, 1988. An autopsy revealed that Ethel died
of blunt force trauma to her head.          Additionally, the autopsy
revealed that all of the blunt force trauma Ethel received was
inflicted prior to her death.
     On March 21, 1989, Olivieri, who had returned to his home
state of Massachusetts within a few weeks following Etheltsdeath,
was extradited from Massachusetts to Montana.       Puliafico, who had
returned to Massachusetts a few months following Etheltsdeath, was
also extradited to Montana. The extradition warrant was based upon
information provided by Olivierits brother, Fred, also of Mas-
sachusetts, who telephoned Cascade County officials after Olivieri
and Puliafico had, on various occasions, bragged to him in detail
about raping and killing a deaf-mute girl in Montana and dumping
her body in the Missouri River.       Additionally, Olivieri told Fred
that it was every mants fantasy to rape and kill a woman.
     Olivieri and Puliafico were jointly charged with the offenses
of deliberate homicide and obstructing justice. Both codefendants
originally pled not guilty to the charges.      On May 9, 1989, by an
amended information, Puliafico was also charged with the offense
of sexual intercourse without consent.      On May 9, 1989, Puliafico
executed a plea bargain agreement whereby he changed his not guilty
plea to guilty to the charge of deliberate homicide and pled guilty
to the charge of sexual intercourse without consent--in exchange,
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the State dropped the charge of obstructing justice. Puliafico was
sentenced to 100 years of imprisonment for deliberate homicide and
twenty-five years of imprisonment for sexual intercourse without
consent, both sentences to run consecutively.        Additionally,
Puliafico was designated a dangerous offender for parole purposes.
     Olivieri, however, maintained his not guilty pleas. His jury
trial commenced on October 23, 1989, in Cascade County. During his
jury trial, Olivieri neither testified or called a single witness
in his defense. The prosecution, however, read Olivierilslegally
obtained confession into the record, which was made to Cascade
County officials on March 21, 1989.
     The District Court instructed the jury on accountability and
deliberate homicide, but refused Olivierilsproposed jury instruc-
tion upon the lesser included offense of criminal endangerment, or
in the alternative, mitigated deliberate homicide. The jury found
Olivieri guilty of deliberate homicide and obstructing justice as
charged.   Olivieri was sentenced to 100 years of imprisonment for
deliberate homicide and ten years of imprisonment for obstructing
justice, both sentences to run consecutively.    Olivieri received
an additional ten years of imprisonment under the weapons enhance-
ment statute, also to run consecutively with the above sentences,
and was designated a dangerous offender for parole purposes.
     The sole issue before this Court is whether the District Court
properly refused to instruct the jury on the lesser included
offense of criminal endangerment, or in the alternative, mitigated
                                5
deliberate homicide.   Olivieri argues that criminal endangerment
and mitigated deliberate homicide are both lesser included offenses
of deliberate homicide, and as such, Olivieri was entitled to a
lesser included offense instruction.       We disagree.     Even if
Olivieri is correct in asserting that criminal endangerment and
mitigated homicide are lesser included offenses of deliberate
homicide, evidence must be presented at trial to warrant an
in~tructionon either offense.     State v. Heit (Monte lggo), 791
P.2d 1379, 1382, 47 St.Rep. 919, 922 (citations omitted).      Here,
Olivieri presented no evidence at trial--he neither testified or
called a single witness in his defense.
     Moreover, the crime of criminal endangerment is a purposeful
or knowing act which causes "a substantial risk of death or serious
bodily injury" where deliberate homicide is a purposeful or knowing
act which causes death. Sections 45-5-207 (I), 45-5-102 (1)(a), MCA.
A court's refusal to instruct on criminal endangerment is proper
when a purposeful or knowing act causes death or when the failure
to act results in accountability for deliberate homicide:
          Where   purposely or knowinglyw causing a
          result is an element of an offense, that
          element can be established if the result
          involves the same kind of harm or injury as
          contemplated by the defendant, although the
          actual degree of injury is greater than in-
          tended.    See section 45-2-201(2) (b), MCA.
          Koepplin by his own admissions intended to
          slap the victim numerous times about the head.
          The result, death by brain damage, may not
          have been intended. However, the result that
          did occur is a more severe form of the same
          kind of injury that was intended--injury to
          the head area of the victim. In these instan-
          ces our deliberate homicide statutes and case
          law state that the actor may be held account-
          able for the unintended death, if a causal
          relationship is established pursuant to sec-
          tion 45-2-201, MCA.     . . .a person cannot
          strike lethal blows and then avoid the conse-
          quences of his actions by saying he was sur-
          prised his victim dies or that he did not
          intend to kill her.
State v. Koepplin (1984), 213 Mont. 55, 61-62, 689 P.2d 921, 924.
     Regarding causal relationship, 5 45-2-201(2), MCA, provides:
          If purposely or knowingly causing a result is
          an element of an offense and the result is not
          within the contemplation or purpose of the
          offender, either element can nevertheless be
          satisfied if:
          (a)   ...   or

          (b) the result involves the same kind of harm
          or injury as contemplated but the precise harm
          or injury was different or occurred in a
          different way    ....
     Here, Olivieri admitted that he intentionally struck Ethel on
the back of the head twice with a baseball bat.   And, the patholo-
gist who performed Ethel's autopsy testified that Ethel's death was
caused by blunt force trauma to the head, and all such injuries
were received prior to her death.   Therefore, Olivieri's conduct
was a causal factor in Ethel Wood's death, pursuant to 5 45-2-
201(2), MCA, and he is guilty of deliberate homicide.
     Olivieri, however, argues that Puliafico alone killed Woods,
and no evidence to the contrary was ever presented at his trial.
Olivieri's argument is without merit and his attempt to ignore both
his own recorded admissions of striking Ethel with a baseball bat
and the pathologist's testimony in an effort to reduce his
culpability in this brutal crime is of no avail. We hold that the
District Court properly refused to instruct the jury on the lesser
included offense of criminal endangerment.
     Olivieri alternatively argues that he was entitled to have
the jury instructed on the lesser included offense of mitigated
deliberate homicide.    Mitigated deliberate homicide is a lesser
included offense of deliberate homicide only if the defendant
presents evidence "that he acted under 'extreme mental or emotional
stress for which there is reasonable explanation or excuse.t1'
State v. Heit, 791 P.2d at 1382; S 45-5-103, MCA        (citations
omitted).   Although Olivieri never testified or called a single
witness in his defense, he argues that indications of extreme and
emotional distress are evident in the record.   We again disagree-
-the record is void of any mitigating factors before, during, or
after Ethel's brutal rape and murder.   During the time Puliafico
raped and beat Ethel, Olivieri admitted that he watched the
happenings and laughed. While Ethel laid on the floor unconscious,
Olivieri joined Puliafico in the kitchen and proceeded to eat
macaroni and cheese.    Following the second time Puliafico raped
Ethel, ~livieriintentionally struck the badly beaten Ethel with
a baseball bat twice.     After the crime, Olivieri admitted to
feeling that he was just as responsible as Puliafico for Ethel's
death. Additionally, Olivieri openly bragged about his involvement
to his brother, Fred, on various occasions in Massachusetts, and
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told Fred that it was every man's fantasy to rape and kill a woman.
     Olivieri now justifies his part in Ethel's death by arguing
that he acted only to please and support his life-long friend,
Puliafico, and this loyalty to Puliafico should be considered a
mitigating factor. Olivieritsargument is without merit.    Loyalty
to a friend has never been considered a mitigating factor to
justify a cold-blooded and savage homicide.    The District Court
properly refused to instruct the jury on the lesser included
offense of mitigated deliberate homicide.




We concur:
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