source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE GRAY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DOUGLAS D. TURNER, Defendant and Appellant.
    Nos. 92-157 and 92-161.
    Submitted on May 26, 1993.
    Decided October 20, 1993.
    Rehearing Denied Dec. 10, 1993.
    50 St.Rep. 1267.
    262 Mont. 39.
    864 P.2d 235.

      For Defendant and Appellant: Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena (argued).
    For Plaintiff and Respondent: Marc Racicot, Attorney General, Jennifer Anders, Assistant Att’y General (argued); John R. Con-nor, Assistant Att’y General, Helena; Christopher G. Miller, Powell County Attorney, Deer Lodge.
   JUSTICE HARRISON

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(l)(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 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.

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 pant 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 Amot 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. Amot testified that he saw Pileggi get hit on the side of the face as he and Gollehon stmggled for control of the bat and that Turner then approached and stmck ablow 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.

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 “sharks,” convening in a frenzy in the backstop area. After the inmates dispersed, Carpenter saw a body 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: §§ 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 in 46-18-222.
46-18-220. Sentences for certain offenses committed in state prison — death penalty. A person serving 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 46-18-310.
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.

I

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 § 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 § 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 § 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 § 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 § 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. Aperson 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 § 45-5-102(2), MCA.

Sections 45-2-301, -302, and -303, MCA, are taken from the language of §§ 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 §§ 45-2-301, -302, and -303, MCA, confirm that a person convicted of accountability for deliberate homicide is in fact convicted of deliberate homicide.

The Illinois Supreme Court upheld a similar statute on accountability in the case of People v. Ruiz (1982), 94 Ill.2d 245, 68 Ill.Dec. 890, 447 N.E.2d 148, cert. denied, 462 U.S. 1112, 103 S.Ct. 2465, 77 L.Ed.2d 1341 (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 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 statutoiy 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. 1962), 375 P.2d 735, cert. denied, 389 U.S. 899, 88 S.Ct. 226, 19 L.Ed.2d 221 (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. 1978), 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(l)(a), MCA, (Count I), and with accountability for deliberate homicide in violation of § 45-2-302 and § 45~5-102(l)(a), MCA, (Count II), 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 for 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 (1982), 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 § 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 §§ 46-18-303 and 46-18-304, MCA; (2) determines the presence of at least one of the aggravating circumstances listed in § 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. 1073,106 S.Ct. 837, 88 L.Ed.2d 808 (1986).

II

Did the District Court err in refusing to grant Turner’s motion for severance of trials?

At the time of Turner’s trial, Montana’s joinder and severance 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, § 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 Gollehon’s cell presented strong evidence of Gollehon’s involvement; that evidence unfairly prejudiced Turner when severance was denied.

In considering whether there should be a joint trial, we have held that the district court must weigh the State’s interest injudicial 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 (1980), 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 (1990), 241 Mont. 533, 538, 788 P.2d 311, 314. This Court will not substitute its judgment for that of the district court. State v. Campbell (1980), 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, 100 S.Ct. 451, 62 L.Ed.2d 377 (1979).

In striking a balance between prejudice to a criminal defendant and judicial economy, this Court has stated that “considerations of 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 reh’g 618 F.2d 1169 (1980)).

The factors that provide the basis for the predisposition for joint trials include expedition of the 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.

Campbell, 615 P.2d at 198 (citing United States v. Brady (9th Cir. 1978), 579 F.2d 1121, 1128, cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (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.

Campbell, 615 P.2d at 198 (citations omitted).

Applying these considerations to the case before us, we find that the District Corut 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 District Court concluded that:

[Bjecause 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 Turner’s 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.

Brady, 579 F.2d at 1128. Brady establishes that a certain amount of prejudice is to be expected in every joint trial.

Here, Turner simply ignored all of the State’s circumstantial evidence that pointed to his guilt, 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 Cir 1988), 842 F.2d 1525, 1533, cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (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 what is involved here. In Cruz, co-defendant’s counsel elicited damaging testimony on cross-examination of a state’s witness regarding the defendant’s involvement with organized crime and other criminal activity. The Arizona Supreme Court noted that “[t]his evidence 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 comb should have immediately granted a mistrial or severed the cases. That is not what happened here.

Here, Gollehon did not testify, and Gollehon’s counsel 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.

Ill

Should Turner’s death 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 opportunity to 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 I'll set that sentencing between the hours of 12:01 a.m. and 6:00 a.m. on May 7th of 1992.

In accordance with § 46-18-112(l)(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 § 46-18-303, MCA, also has been satisfied. The District Court also considered each of the mitigating circumstances listed in § 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....”

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 § 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, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976).

In determining whether a death sentence is disproportionate, this Court reviews the gravity of the offense, the brutality with 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,_U.S._, 111 S.Ct. 2910, 115 L.Ed.2d 1073 (1991). Section 46-18-310(3), MCA, requires the court to “include in its decision a reference to those similar cases it took into consideration.”

Since 1973 this Court has considered nine death penalty cases: State v. Langford (1991), 248 Mont. 420, 813 P.2d 936; Kills On Top (Vern); State v. Kills On Top (Lester) (1990), 241 Mont. 378, 787 P.2d 336, cert. denied,_U.S._, 111 S.Ct. 2910, 115 L.Ed.2d 1073 (1991); State v. Dawson (1988), 233 Mont. 345, 761 P.2d 352, cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 708 (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, 106 S.Ct. 837, 88 L.Ed.2d 808 (1986); State v. Fitzpatrick (1980), on remand, 186 Mont. 187, 606 P.2d 1343, cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118 (1980); State v. Coleman (1979), 185 Mont. 299, 605 P.2d 1000, cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1980); State v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, vacated on other grounds, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 (1977), on remand, 177 Mont. 280, 581 P.2d 1205 (1978), vacated, 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871 (1979), on remand, 186 Mont. 481, 608 P.2d 428 (1980), cert. denied, 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507 (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 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 Vem Kills On Top “was a maj or 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[ ] 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 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.

CHIEF JUSTICE TURNAGE, JUSTICES WEBER and McDonough concur.

JUSTICE 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. Gollehon, my dissent there is applicable here as well and is incorporated herein.

In addition, I see no conflict between § 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 extending penal statutes beyond “[the statute’s] descriptive terms, or the fair and clear import of the language used.” 813 P.2d at 966. The Court’s decision here meets neither standard; it focuses on the “separate offense” 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 sentencing 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 § 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 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 compelled to 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 TRIEWEILER and JUSTICE HUNT join in the foregoing dissent of JUSTICE GRAY.


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TIMOTHY SCOTT SNARIC, Defendant and Appellant.
    No. 92-374.
    Submitted on Briefs September 2, 1993.
    Decided November 17, 1993.
    50 St.Rep. 1443.
    262 Mont. 62.
    862 P.2d 1175.

      For Defendant and Appellant: Larry D. Mansch, Public Defender’s Office, Missoula.
    For Plaintiff and Respondent: Joseph P.Mazurek, AttorneyGeneral, Michael Wellenstein, Assistant Attorney General, Helena; Robert L. Deschamps, HI, Missoula County Attorney, Karen Townsend, Deputy Missoula County Attorney, Missoula.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a jury verdict from the Fourth Judicial District Court, the Honorable Ed McLean presiding. The jury found appellant Timothy Scott Snaric (Snaric) guilty of two of the four counts brought against him, tampering with or fabricating physical evidence and bail-jumping; and not guilty of two counts, theft and burglary. We affirm.

On April 18, 1991, Missoula resident Roger Lunschen returned home from work and found the front door to his home ajar. Initially, he thought he had merely failed to latch the door when he left earlier that day. However, he soon discovered that his emergency channel scanner was missing and, after further investigation of his home, determined that two pistols with holsters, and car keys belonging to his 1976 Datsun station wagon and the station wagon itself were missing. Mr. Lunschen immediately called the Missoula Police Department to report the burglary of his home and the theft of his 1976 Datsun. The 1976 Datsun was listed with the Missoula Police as a stolen vehicle.

On July 13, 1991, at 1:30 a.m., while on night patrol for the Missoula City Police Department, Officer Mike Brady (Brady) observed a “grayish Datsun” driving very close to the right-hand side of the roadway without its lights on. Brady turned on his overhead lights and began following the car, eventually turning on his siren because the car would not stop. As he continued to pursue the vehicle, it pulled into an athletic club parking lot and then drove toward a park. Brady testified the car made a left circle and then “turned around and came in head-on at me.” The two cars narrowly avoided collision and, after the car had travelled another 100 feet past Brady, it stopped. The driver of the vehicle jumped out of the car and Brady yelled at him to put his hands up and stop. The driver went around to the passenger side of the car and attempted to get in the door. By that time Officer Brady was up to the man and grabbed him. A passenger in the car was removed from the car by another officer who arrived at the scene. Brady later identified the driver as Snaric and the passenger as Ray Bailey.

A registration check was made on the Datsun station wagon’s license plates and it was discovered that the plates actually belonged to a 1964 Buick. The Datsun’s vehicle identification number was then checked which led to the information that the vehicle had been reported stolen. Brady arrested Snaric for the theft of the Datsun station wagon. It was later determined that the Datsun was Mr. Lunschen’s stolen car.

On July 26,1991, the State filed an information charging Snaric with the theft of Lunschen’s Datsun; Snaric posted a $500 bond and was released. On July 31,1991, he appeared in court and pled not guilty to the theft charges. On October 15,1991, the deputy county attorney filed a notice for Snaric to appear at the District Court on October 30,1991 for a change of plea hearing. At that October 30, 1991, hearing, the deputy county attorney and Snaric’s counsel appeared, however, Snaric did not. The court granted defense counsel’s continuance and the change of plea hearing was reset for November 13,1991.

On November 13, 1991, the deputy county attorney and Snaric’s counsel appeared; Snaric again failed to appear. The deputy county attorney moved for, and was granted, a bench warrant as well as a petition to forfeit Snaric’s bond. While the court granted the bond forfeiture, it allowed Snaric thirty days to appear in court to provide a satisfactory excuse as to why he had not complied with the conditions of bail. During the period between his failure to appear and the bond forfeiture, the deputy county attorney moved to amend the information to include a burglary charge of Lunschen’s home and a tampering with or fabricating physical evidence charge. The District Court granted the motion to amend the information.

Pursuant to the bench warrant and petition for bond forfeiture, Snaric appeared in court without counsel on December 30, 1991, where he was advised of the petition filed against him and his right to counsel. Counsel was appointed and the proceedings were reset for January 8,1992.

On January 8, 1992, with Snaric and his counsel present in court, the deputy county attorney filed a second amended information in which she added the charge of bail-jumping to the three previous counts. Snaric pled not guilty to each of the four counts contained in the second amended information, bail was set at $15,000, and Snaric was remanded to the custody of the sheriff.

On March 5,1992, the jury found Snaric guilty of bail-jumping, as a result of his failure to appear at the November 13, 1991 hearing; and guilty of tampering with or fabricating physical evidence.

The facts surrounding the tampering with evidence charge involve a fraudulent letter and bill of sale. After the State charged Snaric with the theft of Lunschen’s Datsun, Snaric asked his friend, Mike Mace (Mace), to write a letter confirming the fact that Snaric had bought the Datsun at a Missoula bar. The letter stated:

Around the first part of May, [Snaric] and I stopped at the Trail’s End Bar. While playingagame of pool, aguynamed Joe introduced himself to [Snaric] and I. He asked if I was interested in buying a car. I said no because I’m legally blind and could not drive anymore. [Snaric] said he would take a look at it. We all went out the back door to look at it. [Snaric] asked Joe to start the car, to see what it sounds like. [Snaric] asked if the car had a clear title. Joe then replied that [Snaric] would have to apply for a lost title because he didn’t have any of the paperwork on the car. I then suggested that [Snaric] get a bill of sale for the car. A price of $200 was agreed upon and, the bill of sale given.
/s/ Michael R Mace

At trial Mace admitted that Snaric knew the information in the letter was not true; that Snaric was with him, at his kitchen table when they fabricated the letter; and that Mace wrote the letter because Snaric had “asked me to help and I decided that I would....”

I John Woodcock do sell one 1976 Datsun station wagon blue in color to [Snaric] for $200.00 dollars on May 3,1991.

Mace identified defendant’s exhibit A as the bill of sale that Snaric read to him. Prior to trial, Mace told the police he did not know who wrote the bill of sale. During cross-examination, however, Mace revealed that his friend, Ron Daniels, wrote the bill of sale at his kitchen table. Mace explained that he had not told the police about Daniels’ involvement for fear of getting Daniels in trouble.

Because of this new evidence, the court allowed the State to reopen its case-in-chief in order to question Daniels. Daniels testified he had written the bill of sale at Mace’s house in the presence of Snaric and Mace. Darnels explained that Snaric gave him the information contained in the bill of sale and that he was present in Mace’s house when Mace wrote the letter about Snaric purchasing a car at the Trail’s End Bar. Appellant presents two issues on appeal:

1. Did the District Court err when it denied Snaric’s motion for judgment notwithstanding the verdict under Count IV, bail-jumping?

2. Did the District Court err when it allowed the State to reopen its case and present cumulative testimony following cross-examination of the State’s last witness?

I

It is Snaric’s opinion that the State failed to prove the elements of the crime of bail-jumping, Count IV. Count IV of the second amended information stated:

On or about November 13,1991,... [Snaric], having been set at liberty by the order of District Court Judge Ed McLean upon condition that he would subsequently appear at the Missoula County District Court on November 13, 1991, purposely failed without lawful excuse to appear at that time and place by failing to keep his counsel informed as to his address and failing to respond to a Notice to Appear for change of plea. The defendant was, at the time, charged with a Felony.

Snaric argues the court’s failure to order him to appear occurred for two reasons. First the initial notice to appear on October 30,1991, was given by the county attorney and not the judge. Second, deputy county attorney Karen Townsend and public defender Diana Leibinger appeared in the District Court on October 20, 1991, at the time and place mentioned in the county attorney’s notice to appear. Snaric’s motion for a continuance was heard, not opposed, and granted. Snaric argues that contrary to the State’s contention in its memorandum in opposition to defendant’s motion to set aside the guilty verdict, dated April 27, 1992, no evidence that the District Court had ordered Snaric to appear on November 13, 1991, was presented at trial. Judge McLean’s granting of a continuance merely set November 13, 1991, as the new date for his change of plea. No new notice to appear was issued by the court; therefore, when Snaric did not appear on November 13, 1991, he failed to appear under an oral amendment to the only notice to appear that existed — the notice issued by the county attorney.

Snaric argues that the State failed to prove the elements of the offense of bail-jumping. Section 45-7-308, MCA, defines the offense of bail-jumping and provides in pertinent part:

A person commits the offense of bail-jumping if, having been set at liberty by court order, with or without security, upon condition that he will subsequently appear at a specified time and place, he purposely fails without lawful excuse to appear at that time and place.

Snaric contends that he was not ordered by the District Court to appear in court at the November 13, 1991, change of plea hearing, and, therefore, he could not have been convicted of bail-jumping under § 45-7-308, MCA.

Regardless of Snaric’s contentions, the record shows that the District Court ordered him to appear at the November 13, 1991 hearing. The original notice to appear for the change of plea hearing was signed by the county attorney. That notice directed him to appear in District Court on October 30,1991. He did not appear on October 30, 1991, but his counsel did appear. His counsel at that time requested a continuance of the hearing, which was not opposed by the county attorney. The District Court granted the continuance and reset the hearing for November 13,1991. It was the District Court, not the county attorney that set the November 13, 1991, date for Snaric to appear in court. When he did not appear, he defied the District Comb’s order. His argument that the county attorney had previously ordered him to appear has no merit.

In denying the appellant’s motion to set aside the jury’s guilty verdict on the charge of bail-jumping, the court noted that Snaric had failed to appear after being ordered by the court to do so. The comb stated:

The Defendant’s Motion to Set Aside the verdict is denied based on the fact that the Defendant was ordered to appear by the Court after he failed to appear pursuant to a notice that was issued by the county attorney’s office.
Specifically, the Court ordered him to appear on November 13th, and that was after the Defendant had failed to appear on the 30th of October and the Defendant’s attorney requested a continuance. At that time I set further appearance for November 13th. The Defendant failed to appear. [Emphasis added.]

Under these facts, the record demonstrates that the State proved every element of the charge of bail-jumping, including the fact that the District Court ordered Snaric to appear at the November 13,1991 hearing. There was no abuse of discretion in denying Snaric’s motion to set aside the jury’s guilty verdict for the offense of bail-jumping.

II

The next issue we address is whether the court abused its discretion in permitting the State to introduce the testimony of Ron Daniels.

Under the facts previously set forth, Ron Daniels’ name did not come up until a defense witness mentioned his name at trial. At that time the court took a recess and allowed defense counsel to examine Ron Daniels after Mace testified on cross-examination that Daniels was the one who, on Snaric’s behalf, had written the fraudulent bill of sale. Prior to that cross-examination, Mace had maintained that he had no knowledge of who wrote the bill of sale.

The order of trial is controlled by § 46-16-401, MCA, which “provides that the State should offer its case-in-chief prior to that of the [defendant].” State v. White (1980), 185 Mont. 213, 216, 605 P.2d 191, 193. Section 46-16-402, MCA, allows the district court to exercise its discretion to depart from the usual order of trial for good cause. White, 605 P.2d at 193.

Here, the District Court had good cause to permit the State to reopen its case-in-chief and present the testimony of Daniels. First, as the District Court noted, Mace’s testimony that Daniels created the bill of sale came as a complete surprise to the State. The State was unaware of Daniels’involvement and, logically, did not have the opportunity to call Daniels at its case-in-chief. Second, Daniels’ testimony that he had prepared the fraudulent bill of sale at Snaric’s request was relevant to the issue of whether Snaric fabricated physical evidence. See Rule 401, M.R.Evid.; State v. Hall (1990), 244 Mont. 161, 169, 797 P.2d 183, 188.

In White, 605 P.2d at 194 (citations omitted), this Court held:

It has long been the rule in Montana that the order in which proof is admitted at the trial is within the sound discretion of the trial court... and that the usual order of trial may be departed from in the proper case.

Here, we conclude that the court had “good cause” to depart from the usual order of the trial, namely the surprise of Mace’s testimony and the relevance of Daniels’ testimony to the fabricating physical evidence charge. We hold the court did not abuse its discretion in permitting the State to reopen its case-in-chief to introduce Daniels’ testimony.

While Snaric argues that Daniels’ testimony prejudiced him, under Rule 403, M.R.Evid., “the determination of admissibility is within the discretion of the trial judge and will not be disturbed unless there is manifest abuse of discretion.” Hall, 797 P.2d at 189. The probative value of Daniels’ testimony far outweighs any danger of unfair prejudice to Snaric. Daniels’ testimony was relevant and probative of the issue of whether Snaric had fabricated the fraudulent bill of sale. Daniels testified that he fabricated the bill of sale in Mace’s kitchen at Snaric’s request and that Snaric gave him the information to include on the bill of sale, specifically, the date of the transaction and the price of the Datsun.

We note that Daniels’ testimony, although new evidence concerning the bill of sale, was introduced during the State’s rebuttal along with the State’s other rebuttal witnesses. Daniels’testimony was not given any specific significance by the court and it did not have an inordinate impact on the jury because it was reviewed with the other rebuttal witnesses. Any prejudice caused by Daniels’ testimony was tempered by the District Court’s allowing Snaric to interview Daniels prior to his testimony and the court’s granting Snaric the opportunity to rebut Daniels’ testimony by reopening his case-in-chief and calling additional witnesses on his own.

In addition, we note that contrary to Snaric’s assertions, Daniels’ testimony was not cumulative. Regardless of how Snaric’s argument, Daniels’ testimony was not introduced to rehabilitate Mace’s character for truthfulness; rather Daniels’ testimony went to the central issue of whether the bill of sale was fraudulent and, therefore, was properly admitted by the District Court.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, HUNT and GRAY concur.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA ex rel., JAMES C. NELSON, GLACIER COUNTY ATTORNEY, Relator, v. MONTANA NINTH JUDICIAL DISTRICT COURT, GLACIER COUNTY, THE HONORABLE R.D. McPHILLIPS, Presiding Judge, Respondent. ORIGINAL PROCEEDING
    No. 92-512.
    Submitted on September 3, 1993.
    Decided November 18, 1993.
    50 St.Rep. 1447.
    262 Mont. 70.
    863 P.2d 1027.

      For Relator: Larry Epstein, Glacier County Attorney, Thane Johnson (argued), Deputy Glacier County Attorney, Cut Bank.
    For Respondent: David F. Stufft (argued), Cut Bank.
    Amici Curiae: Wm. Neis Swandal, Livingston (Montana County Attorneys Association); Thomas J. Beers, Missoula (Montana Trial Lawyers Association); and William F. Hooks, Appellate Defender Office, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant William V. Hill was charged by information, filed in the Ninth Judicial District Court in Glacier County, with felony assault in violation of § 45-5-202(2)(c), MCA; obstructing a peace officer in violation of § 45-7-302(1), MCA; and resisting arrest in violation of § 45-7-301(l)(a), MCA. Prior to trial, defendant formally waived his right to a jury trial and requested a trial of factual issues before the District Court without a jury. However, in response, the State demanded a jury trial of all factual issues. After considering the arguments of the parties, the District Court concluded that § 46-16-110(3), MCA, permitted defendant to waive his right to trial by jury and did not violate Article II, Section 26, of the Montana Constitution. On that basis, the District Court denied the State’s demand for a jury trial. The State petitioned this Court to review the District Court’s decision. We accepted review of this issue pursuant to our authority to exercise supervisory control. Upon completion of that review, we affirm the order of the District Court.

The issues presented to this Court for its consideration are:

1. Is this an appropriate case in which to exercise supervisory control?

2. Does the State of Montana have a right, pursuant to Article II, Section 26, of the Montana Constitution, to trial by jury in criminal cases, or can the right to trial by jury be waived by defendant, over the State’s objection, pursuant to § 46-16-110(3), MCA?

I.

Is this an appropriate case in which to exercise supervisory control?

The exercise of supervisory control by the Montana Supreme Court over the state’s district courts is authorized by Article VII, Section 2(2), of the Montana Constitution, and by Rule 17(a), M.R.App.P.

We have held that assumption of original jurisdiction for the purpose of exercising supervisory control is appropriate when:

(1) Constitutional issues of major state-wide importance are involved;
(2) The case involves purely legal questions of statutory and constitutional construction; and
(3) Urgency and emergency factors exist, making the normal appeal process inadequate.

State ex rel. Racicot v. District Court (1990), 244 Mont. 521, 524, 798 P.2d 1004, 1006.

In this case, all three bases for the exercise of supervisory control are present. The right of the State of Montana to demand trial by jury of criminal issues in the face of a waiver by a criminal defendant raises the constitutional issue set forth above. There are no factual issues to consider on appeal. We have been asked to resolve what the State contends is a conflict between Article II, Section 26, of our State Constitution, and § 46-16-110(3), MCA, as enacted by our Legislature. Furthermore, if we were to accept the State’s position, the appeal process would be inadequate. Section 46-20-103, MCA, strictly limits the State’s right to appeal from a final judgment in a criminal case to the statutory grounds provided. Those statutoiy grounds do not include denial of the State’s demand for trial by jury. Finally, any appeal from an acquittal of the defendant after trial by the district court without a jury would violate defendant’s right to be free from double jeopardy, which is guaranteed by the Fifth Amendment of the United States Constitution, and Article II, Section 25, of Montana’s Constitution. State v. Cool (1977), 174 Mont. 99, 568 P.2d 567.

Therefore, we conclude that this is a proper case in which to exercise original jurisdiction and consider the issue of whether the State of Montana has a constitutional right to trial by jury in all criminal cases.

II.

Does the State of Montana have a right, pursuant to Article II, Section 26, of the Montana Constitution, to trial by jury in criminal cases, or can the right to trial by jury be waived by defendant, over the State’s objection, pursuant to § 46-16-110(3), MCA?

BACKGROUND

The right to trial by jury in federal courts was guaranteed by Article III, Section 2, and the Sixth Amendment of the United States Constitution. In Duncan v. Louisiana (1968), 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, the U.S. Supreme Court held that the right of jury trial for serious offenses is a fundamental right guaranteed to citizens charged with crimes in state courts pursuant to the due process clause of the Fourteenth Amendment.

In Patton v. United States (1930), 281 U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854, the Supreme Court held that although a right to jury trial was guaranteed under the Federal Constitution to a defendant charged with a crime, that right could be waived. InDuncan, the court emphasized that that right of waiver would also extend to state courts.

However, in Singer v. United States (1965), 380 U.S. 24, 34, 85 S. Ct. 783, 790, 13 L. Ed. 2d 630, 638, the court concluded that “[t]he ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right,” and that, therefore, the government could constitutionally condition the waiver of jury trial by requiring approval of the government and the trial court as had been done in Rule 23(a), of the Federal Rules of Criminal Procedure. In arriving at its conclusion that there was no constitutional right to a trial without a jury, and that the federal government’s limitation on a defendant’s right to waive a jury trial was constitutional, the U.S. Supreme Court acknowledged that the various states had provided for different methods by which waiver of jury trials could be accomplished. It made the following observation:

We are aware that the States have adopted a variety of procedures relating to the waiver of jury trials in state criminal cases. Some have made waiver contingent on approval by the prosecutor, e.g., California (Cal. Const. Art. I, § 7), Indiana (Ind. Ann. Stat. § 9-1803 (1956 Repl. vol.), Alldredge v. Indiana, 239 Ind. 256, 156 N.E.2d 888 (1959)), and Virginia (Va. Const. § 8, Va. Code Ann. § 19.1-192 (1950 Repl. vol.), Boaze v. Commonwealth, 165 Va. 786, 183 S.E. 263 (1936)). Others, while not giving the prosecutor a voice, have made court approval a prerequisite for waiver, e.g., Georgia (Ga. Code Ann. § 102-106 (1955), Palmer v. State, 195 Ga. 661, 25 S.E.2d 295 (1943)), and Washington (Wash. Rev. Code § 10.01.060 (1963 Supp.)). Still others have provided that the question of waiver is a matter solely for the defendant’s informed decision, e.g., Connecticut (Conn. Gen. Stat. Rev. § 54-82 (1958)), and Illinois (Ill. Ann. Stat. c. 38, § 103-6 (Smith-Hurd ed. 1964), Illinois v. Spegal, 5 Ill. 2d 211, 125 N.E.2d 468 (1955)). However, the framers of the federal rules were aware of possible alternatives when they recommended the present rule to this Court, see Orfield, Trial by Jury in Federal Criminal Procedure, 1962 Duke L. J. 29, 69-72; this Court promulgated the rule as recommended; and Congress can be deemed to have adopted it, 18 USC § 3771 (1958 ed.).

Singer, 380 U.S. at 36-37, 85 S.Ct. at 790-91.

The Supreme Court in Singer did not hold that, as a matter of constitutional law, approval by the state or the trial court was necessary before the right to jury trial could be waived by a defendant. It simply held that there was no constitutional right to a trial before the court without a jury and that the method for waiver chosen by the Federal Rules of Civil Procedure which required approval of the prosecution and the trial court was not unconstitutional.

A more current and comprehensive analysis of how the various states have chosen to provide for waiver of the right to trial by jury in criminal cases is set forth in Criminal Jury Trials In Iowa: A Time For Revision, 31 Drake L. Rev. 187 (1982). The author points out in that article that:

The procedures in state courts can generally be broken down into three categories: (1) those which adhere to the principles of Federal Rule of Criminal Procedure 23(a); (2) those which require at least court approval of the defendant’s request for waiver; and (3) those which provide for a unilateral waiver by the defendant. Typically the individual procedure involves a constitutional provision referring to the “inviolate” nature of trial by jury, a statute or court rule establishing the formalities and case history. [Footnotes omitted],

31 Drake L. Rev. at 199. The appendix to the Drake Law Review article indicates that in ten states a jury trial can be waived by the unilateral act of the defendant; nineteen states have followed the lead of the federal government by requiring court approval and consent of the government; eight states require only the consent of the government; twelve states require only court approval; and the State of North Carolina does not permit waiver under any circumstances.

Montana’s Constitution and statutes have varied on this subject over the period of our State’s history. As originally provided in Article III, Section 23, of the 1889 Montana Constitution, the right to trial by jury could not be waived in criminal felony cases. Section 23 provided in relevant part that:

The right of trial by jury shall be secured to all, and remain inviolate, but in all civil cases and in all criminal cases not amounting to felony, upon default of appearance or by consent of the parties expressed in such manner as the law may prescribe, a trial by jury may be waived ....

Pursuant to the 1889 Constitution, the Legislature enacted Montana’s original statute pertaining to jury trial in criminal cases in 1895. Section 1991 of the 1895 Penal Code provided that:

Issues of fact must be tried by jury, unless a trial by jury be waived in criminal cases not amounting to felony, by the consent of both parties expressed in open court and entered in its minutes. The above statute requiring a jury trial in felony cases and requiring

consent by both parties for waiver in misdemeanor cases remained in the form set forth above until 1967 when, due to revisions in the code, it was included in § 95-1901(c), RCM (1947), which provided that:

Defendants in all criminal cases shall have a right to trial by jury not to exceed twelve (12) in number. However, if no capital offense is involved, the parties may agree in writing, at any time before the verdict, with the approval of the court that the jury shall consist of any number less than twelve (12).

In 1972, the State of Montana adopted a new Constitution which included two provisions relating to the right of trial byjury in criminal cases. It is these provisions which have given rise to the issue raised in this case. Article II, Section 24, of the 1972 Montana Constitution provides in relevant part that:

In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same.

Article II, Section 26, of the 1972 Montana Constitution provides that:

The right of trial by jury is secured to all and shall remain inviolate. But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury or before fewer than the number of jurors provided by law. In all civil actions, two-thirds of the jury may render a verdict, and a verdict so rendered shall have the same force and effect as if all had concurred therein. In all criminal actions, the verdict shall be unanimous.

Pursuant to the change found in Montana’s Constitution at Article H, Section 26, jury trials were no longer required as a matter of constitutional law in all felony criminal cases. Therefore, the method of waiver which had been provided for in § 95-1901(c), RCM (1947), was also amended when the right to waiver was recodified in 1973 in the Montana Code Annotated. Section 46-16-102(2), MCA (1973), provided that “[u]pon written consent of the parties, a trial by jury may be waived.”

In 1991, § 46-16-102, MCA, was renumbered as § 46-16-110, MCA, by the Code Commissioner and the Legislature amended that section in the manner in which the State contends now gives rise to a conflict between Article II, Section 26, and the statutory provision for waiver of trial by jury. As amended in 1991, § 46-16-110(3), MCA, provides that “[u]pon written consent of the defendant, a trial by jury may be waived.” (Emphasis added).

DISCUSSION

The State contends that Article II, Section 26, of the Montana Constitution requires that before a jury trial can be waived, both parties must consent, and therefore, a jury trial cannot be waived over the objection of the State. In support of its position, the State relies on the U.S. Supreme Corut decisions in Patton and Singer, and on decisions from other jurisdictions which have upheld state court rules, statutes, or constitutional provisions which require state approval before waiver of a jury trial is allowed. However, Singer does not control the issue before us because as previously pointed out, that decision simply upheld the constitutionality of Federal Rule 23(a) which required government and court approval of jury trial waiver. The court in that case made no pronouncement that similar restraints on the right to waive trial by jury were required by the Constitution. In fact, it is implicit from that court’s discussion of the procedures in other states that more than one procedural alternative is permissible.

Neither is Patton authority for the State’s position in this case. The court in that case did hold that in federal courts consent of the government and the trial court would be required prior to waiver of trial by jury where federal crimes are charged. However, the court did not make that holding as a matter of constitutional law, it did so in its capacity to formulate rules for the federal courts. We agree with the Supreme Court of Iowa which, in State v. Henderson (Iowa 1980), 287 N.W.2d 583, 586, held that the Supreme Court’s decision in Patton simply “formulated a rule for the federal courts based on common law tradition that before any waiver [of a jury trial] can become effective, the consent of government counsel and the sanction of the court must be had.... ’3” However, the Supreme Court of Iowa held, and we agree, that “[n]o federal constitutional barrier exists to waiver by a defendant of his right to jury trial.” Henderson, 287 N.W.2d at 584.

Furthermore, those decisions from other jurisdictions relied on by the State of Montana for the proposition that a juiy trial cannot be waived without approval of the state, come from jurisdictions where the applicable state statute, court rule, or constitutional provision clearly require the state’s consent to the defendant’s waiver of a jury trial or when there is no controlling statute. See, e.g., People v. Terry (1970), 2 Cal. 3d 362, 85 Cal. Rptr. 409, 466 P.2d 961, cert. denied, 406 U.S. 912, 92 S. Ct. 1619, 32 L. Ed. 2d 112; State v. Thwing (S.D. 1969), 172 N.W.2d 277; Taylor v. State (Wyo. 1980), 612 P.2d 851; 37 A.L.R. 4th 304. Therefore, they are not persuasive authority for reconciliation of our Constitution and statutory law. Our statute clearly provides for waiver by the defendant without approval by the prosecutor.

Defendant, on the other hand, relies on authorities from states where waiver of jury trial by the defendant is clearly provided by statute and there is no arguable contradiction in the state’s constitutional provision. See, e.g., People v. Spegal (1955), 5 Ill.2d 211, 125 N.E.2d 468; State v. Henderson (Iowa 1980), 287 N.W.2d 583; Garcia v. People (1980), 200 Colo. 413, 615 P.2d 698.

The only decision we have found which appears to include the combination of constitutional and statutory provisions that exist in Montana is the decision of the Supreme Court of Minnesota in Gaulke v. State (Minn. 1971), 184 N.W.2d 599. Article I, Section 4, of that state’s constitution provides:

The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy, but a jury trial may be waived by the parties in all cases in the manner prescribed by law ....

Gaulke, 184 N.W.2d 601 n.4.

However, Minnesota Statute 631.01 provides that:

An issue of fact arises upon a plea of not guilty, or upon a plea of former conviction or acquittal of the same offense. Except where a defendant waives a jury trial, every issue of fact shall be tried by jury....

Gaulke, 184 N.W.2d at 601.

The Minnesota Court in that case did not directly decide the issue with which we are presented because it concluded that it could not properly be presented in a petition for post-conviction relief when it had not been presented on appeal. However, after so concluding, it offered the following advice to the practicing bar and the trial courts in what can only be considered dictum:

We think an expression of our views concerning waiver of jury trial in criminal cases, although dictum, may be of assistance to the bench and bar. Considering the historical antecedents of our constitution, it is doubtful that the legislature intended to grant the accused an absolute right of waiver. Although we perceive no intent that the waiver be subject to the consent of the prosecution, it has long been considered to be subj ect to the approval of the trial court. [Emphasis added].

Gaulke, 184 N.W.2d at 602.

Based on our review of the authorities provided and capably argued by the State of Montana, the defendant, and the amicus curiae who have appeared in this case, it is clear that the issue with which we have been presented is unique to Montana and depends completely on our construction of Article II, Section 26, of the Montana Constitution.

Our analysis must begin with the approach that “[a] ‘legislative enactment’ is presumed to be constitutional and will be upheld on review except when proven to be unconstitutional beyond a reasonable doubt.” City of Billings v. Laedeke (1991), 247 Mont. 151, 154, 805 P.2d 1348, 1349.

To determine the meaning of a constitutional provision, we have also held that we employ the same rules of construction employed to construe statutes. State v. Cardwell (1980), 187 Mont. 370, 373, 609 P.2d 1230, 1232.

The intent of the framers of a constitution[al] provision controls its meaning. Keller [v. Smith (1976)], 170 Mont. [399] at 405, 553 P.2d [1002] at 1006. The intent of the framers should be determined from the plain meaning of the words used. If that is possible, we apply no other means of interpretation. Keller, 170 Mont. at 405, 553 P.2d at 1006.

Cardwell, 609 P.2d at 1232.

It also follows then, that as with the construction of statutes where there are several constitutional provisions which would otherwise be inconsistent, a construction should be adopted, if possible, which will give effect to all of them. Section 1-2-101, MCA.

Finally, we are guided by the rule that a possible conflict between statutory law and constitutional provisions should be reconciled, if possible. 16 Am. Jur. 2d Constitutional Law § 222, (1979).

Construction of Article II, Section 26, is necessary because of the following language used in that provision:

But upon default of appearance or by consent of the parties expressed in such manner as the law may provide, all cases may be tried without a jury .... [Emphasis added].

The State argues that “consent of the parties” requires consent of the State before a jury trial can be waived in criminal cases. Defendant contends that the language “expressed in such manner as the law may provide” gives the Legislature authority to establish the form of waiver, and thereby determines the party or parties from whom consent is required. Defendant argues that it did so when it amended § 46-16-110(3), MCA, in 1991.

Looking first to the intent of the framers of the Constitution, we find no support for the argument that when the 1972 Convention changed our Constitution to permit waiver of jury trial in criminal felony cases it intended to require approval by the State. On the contrary, the change from the 1889 Constitution appears to have been intended solely for the benefit of the defendant. When proposing the changes found in Article II, Section 26, Delegate Campbell, from the Bill of Rights Committee, gave the following explanation:

We have kept it the same except for two changes which we feel will allow a great deal of flexibility in the law. ... Second of all, a jury could be waived by a defendant. Now, this is important especially in the smaller counties where a jury trial may come up only every 6 months. If a person cannot afford bail, he must remain in the small, often inadequate county jails until the next jury term. This would allow him to intelligently waive this right and allow him to be tried by the judge without a jury. [Emphasis added].

Verbatim Transcript of March 9,1972, hearing, Montana Constitutional Convention, 1971-1972, Vol. V, p. 1780.

Later on during the same hearing, Delegate Campbell again explained the purpose for allowing for waiver of the right to jury trial in our Constitution. He stated that:

What it does is give the individual the option of determining, with his attorney, whether or not it would be in the best behalf of his defense to waive the jury trial, which may not come up in this county for another 4-5 months while he’s still in the jail, or go directly to the trial judge now, waiving the jury. [Emphasis added].

Verbatim Transcript of March 9,1972, hearing, Montana Constitutional Convention, 1971-1972, Vol. V, p. 1787.

Finally, the Convention Note to Article II, Section 26, states: Revises 1889 constitution [Article III, Section 23] by permitting a defendant to waive a jury trial in felony cases as well as civil and misdemeanor cases and by requiring all jurors (rather than 2/3) agree before a defendant may be convicted of a misdemeanor. [Emphasis added].

It is clear from the transcript of our 1972 Constitutional Convention that when Article II, Section 26, was proposed in a form that allowed waiver of jury trials in criminal felony cases, it was the intention of the framers of that provision that the option was intended for the benefit of defendants who might otherwise be denied speedy trials in rural areas of Montana. It does not appear that the framers contemplated that the State would have the right to object to a defendant’s waiver of trial byjury. In fact, such authority by the State would have been inconsistent with the framers’ stated objective.

We must also construe Article II, Section 26, of the Montana Constitution in a manner consistent with other provisions in the Montana Constitution. However, the interpretation advocated by the State would result in inconsistent provisions in Article II, Sections 24 and 26. Section 24 guarantees the right of trial by jury in all criminal prosecutions to the “accused.” It provides no comparable right to the State. However, to adopt the State’s interpretation of Section 26 would provide the State with a right to trial by jury in criminal cases, which is clearly absent from Section 24. In our interpretation of Section 26, this type of inconsistency should be avoided, if possible.

Finally, we are guided by the rule that if an asserted conflict between a statute and a constitution can be reconciled, the Court must do so, and the statute and constitutional provision must be harmonized in a way that gives effect to both when this can be done. 16 Am. Jur. 2d Constitutional Law § 222 (1979).

In construction of Article II, Section 26, and in particular, its reference to waiver by the “parties,” it must be kept in mind that Section 26 is also the provision in Montana’s Constitution which guarantees the right of trial by jury in civil cases. To provide a right to waive a jury trial in that context, it was necessary to refer to the “parties” because to deny one or the other party in a civil matter an equal right to trial by jury would violate the constitutional right to equal protection provided for in Article II, Section 4, Montana Constitution (1972). Therefore, when construing Section 26 in the context of this case, the fact that “parties” are referred to is less significant than the fact that the framers of the Constitution provided that waiver may be accomplished in “such manner as the law may provide...”

Pursuant to that mandate, the Legislature has provided for one method of waiver in civil cases (see Rule 38(d), M.R.Civ.P.) and a different method of waiver in criminal cases (see § 46-16-110(3), MCA). The latter method is consistent with the clear indication in Article II, Section 24, that only the “accused” is guaranteed a right to trial by jury in criminal cases.

If the framers of the Constitution intended by Section 26 to require consent by the State before a jury trial could be waived, it could have so provided in plain language, or it could have simply added more specific qualifiers, as was done in the California and Oklahoma Constitutions. Article I, Section 7, of California’s 1973 Constitution provides that “[a] trial by jury may be waived in all criminal cases by consent of both parties ...” (Emphasis added). Article VII, Section 20, of the 1966 Oklahoma Constitution provides that “[i]n all issues of fact joined in any court, all parties may waive the right to have the same determined by jury....” (Emphasis added). Neither constitution provides that the method of waiver is to be established by the legislature.

As is evident from the minutes of the 1972 Constitutional Convention, which were referred to previously, the framers of our Constitution did not use such language because they did not intend to allow the State of Montana to exercise veto power over a defendant’s option to waive trial by jury in criminal cases.

We conclude that a reasonable interpretation of Article II, Section 26, which accomplishes the specific purpose for which it was adopted by the framers of the Constitution, which renders it consistent with Article II, Section 24, of the same Constitution, and which avoids a constitutional conflict with § 46-16-110(3), MCA (1991), requires that the District Court be affirmed.

We hold that Article II, Section 26, of the Montana Constitution (1972), provides that a jury trial is guaranteed in all criminal cases unless waived in the manner provided by law. The Legislature is free to provide the procedure for waiver of trial by jury in criminal cases, and has done so in § 46-16-110(3), MCA. That section does not require approval by the State of Montana, nor the district court, and does not violate the Montana Constitution.

The order of the District Court dated October 29,1992, which allowed defendant to waive trial by jury in this case and denied the State’s demand for trial by jury is affirmed. This matter is remanded to the District Court for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, GRAY, WEBER and DISTRICT JUDGE LANGTON, sitting for JUSTICE NELSON, concur.