State v. Turner

• Decision Date: 10 December 1993
• Docket Number: 92-161,Nos. 92-157,s. 92-157
• Parties: STATE of Montana, Plaintiff and Respondent, v. Douglas D. TURNER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 235

864 P.2d 235

262 Mont. 39

STATE of Montana, Plaintiff and Respondent, v. Douglas D. TURNER, Defendant and Appellant.

Nos. 92-157, 92-161.

Supreme Court of Montana.

Submitted May 26, 1993.

Decided Oct. 20, 1993.

Rehearing Denied Dec. 10, 1993.

Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena (argued), for defendant and appellant.

Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen. (argued), John R. Connor, Asst. Atty. Gen., Helena, Christopher G. Miller, Powell County Atty., Deer Lodge, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal from a jury decision to convict appellant Douglas D. Turner (Turner) of deliberate homicide by accountability in violation of § 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 § 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 side" as it is commonly called in prison language. Pileggi worked in the high side kitchen, which employed twenty-five to forty-five inmates per shift, including the two men charged with his death. Prisoners assigned to the high side actively sought kitchen duty as it was considered good duty.

In August of 1990, there was tension in the prison and this was very evident in the high side kitchen. Some of the inmates who worked in the kitchen, including Turner, did not like the fact that convicted sex offenders were working there. As it developed, there was a movement afoot to rid the kitchen of sex offenders or, according to the inmates, to take back the kitchen from the sex offenders. Pileggi was a sex offender, and in August 1990, he was attacked by three individuals. Pileggi told a correctional officer that three inmates dragged him into the dish room and beat him up, but he refused to identify the perpetrators. Turner, Gollehon, and Daryl Daniels were terminated or dropped from kitchen work crews a few days before Pileggi's 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 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 split 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.

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 Pileggi's 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 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 Pileggi's 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 Pileggi's 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 Pileggi's body. Armstrong did not remember what Turner did with his bat. Armstrong testified that as soon as the other inmates realized what had happened, there was a "mass exodus" from the softball field.

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 pants legs or roll them up. Gollehon rolled up his pant legs to get through the patdown search when the yard was called in. Gollehon's pants were found later during a shakedown of his cell along with a blood smeared towel. These items were wet and had been folded and placed under a pillowcase.

Inmate William Arnot was also an eyewitness to the beating and testified for the State at trial. Arnot was playing softball against Armstrong's team on the day of Pileggi's death. He corroborated Armstrong'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 "dropped like a tree." Arnot estimated that Gollehon and Turner each hit Pileggi with the bats five or six times after he hit the ground. These facts were recited to the jury and referred to during the sentencing hearing that brought about Turner's death sentence....