NO. 81-474
I N THE SUPREME COURT O F THE STATE O MONTANA F
THE STATE O MONTANA, F
P l a i n t i f f and Respondent,
VS.
SHERRY R I L E Y ,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e F i f t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f R o o s e v e l t Honorable M. James S o r t e , J u d g e p r e s i d i n g .
Counsel of Record:
For Appellant:
David N i e l s e n a r g u e d , Glasgow, Montana
F o r Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana C h r i s Tweeten a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , Helena, Montana Marc F. R a c i c o t , County P r o s e c u t o r s S e r v i c e , H e l e n a , Montana James A. McCann, County A t t o r n e y , Wolf P o i n t , Montana
Submitted: March 2 9 , 1982
Decided: ~ u g u s t1 3 , 1982
TA-5 b Ep~~,~m~4.- Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. Sherry Riley and three codefendants were convicted of deliberate homicide following a jury trial in the Fifteenth Judicial District, State of Montana, in and for the County of Roosevelt. Riley was sentenced to twenty years imprison- ment with ten years suspended. From that judgment she ap- peals. The fact situation relating to the death of five- year-old James Gill has been stated in a recent opinion of this Court, State v. Powers (1982), Mon t . , 645 P.2d 1357, 39 St-Rep. 989. Only those facts specifically appli- cable to Sherry Riley, the appellant here, will be set forth in this opinion. Appellant, her husband Arthur, and Norma Phillips, were tried jointly. Charges against Norma Phillips were dismissed at the close of the State's case. The jury found Arthur Riley not guilty. Appellant and her husband were members of a religious group known as the River of Life Tabernacle, which original- ly was based in Wapato, Washington. James DeLorme, the leader of the church, appointed various persons as "minis- ters" and "counselors" to assist him in church matters. DeLorme traveled much of the time leaving church operations in the hands of Arthur Riley and the appellant, who served as a "women's counselor." Members of the church lived communally, sharing food and responsibilities for the com- munity. Often several families would occupy the same dwelling. It was within this framework that church leaders exerted substantial control over the lives of the members. The leaders established rules regarding members' work, living conditions and expenditures of money. Members were expected to contribute a percentage of their income to the church and to make special contributions for other items needed by the church leaders. The leaders of the church established a policy on child discipline that evolved from a desire to recruit members. DeLorme determined that well-behaved children would make a good impression on potential converts, and in the fall of 1979, the church began a policy of strict discipline for children of church members. During this period, DeLorme had a group of ten children of church members living at his house because he was dissatisfied with their parents' compliance with his discipline policies. Testimony indicated that he used a spatula and electric cord to discipline the children. Evidence also was introduced that members would compete with each other in carrying out the discipline policies in an attempt to please DeLorme. Testimony showed that adult members, including DeLorme and the appellant, sat around in a circle and placed a number of small children in the center. Whichever adult a child went to was expected to spank the child and place him back in the center of the circle. Children as young as five months were subjected to this treatment. Appellant was a central figure in the enforcement of the church discipline policy. She told Pat Lewis, one of the mothers, that Lewis had no authority over her own chil- dren and was not to discipline them. Appellant served as disciplinarian when DeLorme was away and undertook the job of d i s c i p l i n i n g t h e L e w i s c h i l d r e n a s w e l l a s o t h e r c h i l d r e n
of the commune. B e a t i n g s were i n f l i c t e d on t h e c h i l d r e n with a blue-green fiberglass stick or with an e l e c t r i c a l
c o r d and t h e r e a f t e r t h e c h i l d r e n o f t e n were h o s e d down w i t h cold water. James G i l l was o n e o f t h e s e c h i l d r e n .
di-tjcip4-i-ne47Fm~ The a p p e l l a n t d i s c i p l i n e d J a m e s o n s e v e r a l o c c a s i o n s , b o t h w i t h t h e f i b e r g l a s s s t i c k and t h e e l e c t r i c a l cord because he r e f u s e d t o e a t . According t o t h e testimony o f P a t L e w i s , a p p e l l a n t h o s e d J a m e s down a f t e r o n e b e a t i n g
and made him s t a n d i n mud for "an hour or so." Another witness, Takkeal, t e s t i f i e d t h a t h e saw t h e a p p e l l a n t b e a t
J a m e s f o r " a c o u p l e of h o u r s " f o r r e f u s i n g t o e a t and t h a t a f t e r w a r d s J a m e s was b r u i s e d and a p p e a r e d u n c o n s c i o u s . T h e s e
incidents occurred prior to the move of the commune to Montana i n t h e f a l l o f 1 9 8 0 . J a m e s G i l l was, throughout h i s s h o r t l i f e , a sickly child. He s u f f e r e d from s i c k l e c e l l anemia, a hereditary circulation disorder. This condition was known to the
church leaders, including the appellant. Dr. Kenneth M u e l l e r , who t e s t i f i e d a t t h e t r i a l a s a n e x p e r t i n p e d i a - trics and f o r e n s i c pathology, s t a t e d t h a t t h e d i s e a s e was " r e l a t i v e l y m o d e r a t e " and t h a t t h e c h i l d would n o t h a v e d i e d
of that disease alone. However, he testified that as a r e s u l t o f t h e b e a t i n g s a b o u t 20 p e r c e n t o f t h e c h i l d ' s b l o o d volume s e e p e d f r o m b r o k e n b l o o d v e s s e l s i n t o t h e s u r r o u n d i n g tissue. T h i s blood l o s s produced a s h o c k - l i k e e f f e c t which, i n combination with t h e sickle cell d i s e a s e , l e d t o James G i l l ' s death. In the late fall of 1980, the church moved from Wapato, Washington, t o Glasgow and Poplar, Montana. The R i l e y s , t h e G i l l s and s e v e r a l o t h e r members moved i n t o t h r e e
u n i t s o f a m o t e l i n Glasgow. They s t a y e d a t t h e m o t e l u n t i l s o m e t i m e i n December. Then t h e y g a v e u p two o f the units
and moved those families, including the G i l l s , t o Poplar where t h e y o c c u p i e d m o b i l e homes. The appellant and her f a m i l y k e p t one u n i t u n t i l J a n u a r y 2, 1981.
R i c h a r d D i c k , a c h u r c h member, t e s t i f i e d t h a t during t h e p e r i o d t h e y were a l l t o g e t h e r i n Glasgow h e o b s e r v e d t h e appellant and Don Howtopat b e a t James w i t h an e l e c t r i c a l
cord and a stick and that this beating seemed t o weaken James. Appellant testified that after her husband moved t h e i r t r a i l e r t o P o p l a r sometime i n mid-December she spent p a r t o f t h e time i n P o p l a r and p a r t i n Glasgow. During t h i s period, James G i l l l i v e d a t t h e i r t r a i l e r p a r t of t h e t i m e . She a l s o t e s t i f i e d t h a t d u r i n g t h i s p e r i o d t h a t James l i v e d
with them she did not spank him. The a p p e l l a n t was in Glasgow m o s t o f t h e time f r o m J a n u a r y 2 , 1 9 8 1 t o J a n u a r y 11,
1981, but on T h u r s d a y , January 8, s h e was in Poplar to a t t e n d church s e r v i c e s . A c c o r d i n g t o h e r t e s t i m o n y , s h e saw James in church and he appeared to be p e r f e c t l y normal. A f t e r c h u r c h , s h e r e t u r n e d t o Glasgow a n d d i d n o t r e t u r n t o
Poplar until Sunday, January 11. She learned of James G i l l ' s d e a t h S a t u r d a y morning.
The a p p e l l a n t t e s t i f i e d t h a t o n J a n u a r y 9 , t h e day James d i e d , s h e d r o v e f r o m Glasgow t o F o r t B e n t o n , Montana, t o g e t o n e o f t h e c h u r c h members o u t o f jail. She d e n i e d
that she had left the children in the charge of Robert Powers, a defendant in the earlier case. This testimony was controverted by the State through the testimony of Ronald Wilson, a deputy sheriff of Roosevelt County, who testified that shortly after the boy's death Powers told him that the appellant had told him on Thursday night, January 8, to return to the Riley trailer and take care of the children. Seven issues are presented for consideration: 1. Is the information, as amended, sufficient to properly charge the appellant with the offense of deliberate homicide? 2. Was probable cause sufficiently established in the county attorney's supporting affidavits to permit the court's granting of leave to file an information? 3. Is the jury verdict finding the appellant guilty of deliberate homicide supported by sufficient evidence? 4. Did the trial court err in allowing evidence of other crimes, wrongs and acts of the appellant and of indi- viduals not parties to this action and in denying appel- lant's motion in limine to exclude such evidence? 5. Did the trial court err in admitting the electri- cal cords into eviuence? 6. Did the trial court err in allowing photographs of the deceased victim into evidence? 7. Did the trial court err in giving Instruction No. 16, which contains a verbatim recital of the amended infor- mation? The original information of January 12, 1981, was amended twice following motions to dismiss. In denying these motions the trial court ruled that: "The affidavits and Information filed by the County Attorney are sufficient t o g i v e t h e D e f e n d a n t s n o t i c e of t h e c h a r g e s a g a i n s t them.
The amended I n f o r m a t i o n c h a r g e s t h e o f f e n s e s i n t h e l a n g u a g e of t h e s t a t u t e . The c h a r g i n g s t a t u t e s comply w i t h t h e law."
The d e f e n d a n t s c h a r g e d by t h i s i n f o r m a t i o n a p p l i e d t o t h i s C o u r t f o r w r i t s of s u p e r v i s o r y c o n t r o l . W accepted j u r i s - e d i c t i o n and d e n i e d t h e r e l i e f p e t i t i o n e d f o r , f i n d i n g t h a t t h e a f f i d a v i t s established probable cause t o believe that
t h e d e f e n d a n t s were g u i l t y o f d e l i b e r a t e homicide. Appellant levels two attacks against the amended information--one, t h a t it f a i l s t o s t a t e an o f f e n s e with t h e s p e c i f i c i t y r e q u i r e d by t h e c o n s t i t u t i o n a l g u a r a n t e e of due
p r o c e s s of law, Amend. XIV, U.S. Const. and A r t . 11, Sec.
1 7 , 1972 Mont. C o n s t . ; and two, t h a t t h e a f f i d a v i t s f i l e d by the S t a t e f a i l e d t o e s t a b l i s h probable cause t o charge t h e defendants. As previously noted, we have c o n s i d e r e d t h e suffi-
c i e n c y of t h e i n f o r m a t i o n i n a s p e c i a l p r o c e e d i n g of A r t h u r R i l e y f o r w r i t of s u p e r v i s o r y c o n t r o l and ruled that the
c h a r g i n g l a n g u a g e a t i s s u e h e r e was s u f f i c i e n t l y s p e c i f i c t o s a t i s f y due p r o c e s s requirements. This r u l i n g makes the
issue r e s judicata.
Section 4 6 - 1 - 4 ( ) ( c ) , MCA, controls here and
s t a t e s t h e l e g a l s t a n d a r d s of s p e c i f i c i t y . I t provides i n
pertinent part: " ( 1 )A c h a r g e s h a l l :
" ( c ) c h a r g e t h e commission of an o f f e n s e by:
" ( i i i ) stating the facts constituting the o f f e n s e i n o r d i n a r y and c o n c i s e l a n g u a g e and i n s u c h manner a s t o e n a b l e a p e r s o n of com- mon u n d e r s t a n d i n g t o know what i s i n t e n d e d ; " ( i v ) s t a t i n g t h s t i m e and p l a c e of the o f f e n s e a s d e f i n i t e l y a s can be done; . . ." 'The l a n g u a g e m u s t be "concise" but still sufficient
t o a l l o w a " p e r s o n o f common u n d e r s t a n d i n g t o know w h a t i s
intended." T h i s Court has h e l d p r e v i o u s l y t h a t an informa-
t i o n c h a r g i n g a homicide is s u f f i c i e n t under t h i s standard
if it charges the offense in terms of a s t a t u t e without
reciting supporting evidentiary facts. See, S t a t e v.
Coleman ( 1 9 7 8 ) , 177 Mont. 1, 22, 579 P.2d 732, 745, cert.
d e n i e d , 446 U.S. 970 ( 1 9 8 0 ) .
In an earlier case, State v. Heaston (1939), 109
Nont. 303, 308, 97 P.2d 330, 332, t h i s Court held t h a t an
i n f o r m a t i o n n e e d n o t s e t f o r t h t h e manner i n which t h e d e a t h
was caused, nor recite all possible legal theories the
prosecutor wishes t o pursue. S e e , S t a t e e x r e l . McKenzie v.
District Court (1974), 1 6 5 Mont. 54, 63, 525 P.2d 1211,
1216. The purpose of an information is to provide the
defendant with notice, not to provide discovery of the
S t a t e ' s evidence. S e e , McKenzie, s u p r a .
We find the amended information is s u f f i c i e n t . It
c h a r g e d t h r e e t h e o r i e s of homicide: (1) t h a t t h e d e f e n d a n t
as a principal purposely or knowingly c a u s e d t h e d e a t h o f
J a m e s G i l l by e n g a g i n g i n one o r more of four enumerated
k i n d s of conduct; ( 2 ) t h a t t h e d e f e n d a n t a i d e d and a b e t t e d
i n p u r p o s e l y o r k n o w i n g l y c a u s i n g t h e d e a t h of James G i l l by
engaging i n o n e o r rnore of t h e f o u r k i n d s of conduct; and
( 3 ) t h a t t h e d e a t h of J a m e s G i l l o c c u r r e d w h i l e t h e d e f e n -
d a n t was e n g a g e d i n o r a i d i n g and a b e t t i n g i n t h e c o m m i s s i o n
of aggravated assault. Each theory was charged in the
statutory language under section 45-5-102(1)(a) and (b),
MCA. I n a d d i t i o n , t h e d e f e n d a n t was n o t i f i e d t h a t t h e S t a t e intended to offer an accountability theory under section 45-2-302, MCA. The State abandoned the felony murder theory prior to trial. The information is intended to be a notice device, and this amended information served that purpose. One of the attacks appellant makes on the information is that it fails to state the time and place of the offense "as definitely as can be done," since it charges that the various acts occurred in three different counties in this state over a period of about two years. We consider this allegation without merit. The law does not require that the time and place be stated with impossible precision; it merely requires that they be stated as definitely as pos- sible under the circumstanees of the case, unless time is a "material ingredient in the offense." See, State v. Heaston, 109 Mont. at 307, 97 P.2d at 332. Here the information alleges a continuing course of abusive conduct towards James Gill, beginning when his family joined the River of Life Tabernacle group and culminating with the boy's death on January 9, 1981. When such a continuing course of conduct is alleged, further specificity is not required. State v. House (1971), 260 Or. 138, 489 P . 2 d 381, 384. Appellant relies most directly on State ex rel. Offerdahl v. District Court (1971), 156 Mont. 432, 481 P.2d 338, which is distinguishable from the case here. Offerdahl dealt with the sale of drugs by a relator to an informant, then identified only as "John Doe," occurring in Cascade County on a particular date. This Court held that the information did not sufficiently protect the relator from double jeopardy since it did not state sufficient facts to identify the transaction at issue. The Court ordered the prosecutor to remedy this defect by filing an amended information which either identified John Doe, the informer, or stated other facts which sufficiently identified the transaction. Offerdahl did not hold that the details of evidentiary facts of the offense must be stated in every case. In fact, this Court has had numerous cases which hold otherwise. See, State v. Coleman, supra. Appellant's next contention, that the amended infor- mation is defective because it fails to state the underlying facts of an aggravated assault which served as the basis for the felony murder theory, is incorrect for several reasons. First, no authority is cited for the proposition that such underlying evidentiary facts must be plead. Second, a person of ordinary intelligence would understand that the State intended to prove the aggravated assaults were against James Gill and resulted in his death. Next appellant claims that the four aff idavits filed in support of the charges did not establish probable cause to charge appellant with deliberate homicide. We find no merit to this argument. See, State v. McKenzie, supra, for principles governing the filing of an information. In evaluating the various affidavits for probable cause, "magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense," and the reviewing court must give special deference to judicial probable cause determinations. See, State v. Troglia (1971), 157 Mont. 22, 26, 482 P.2d 143, 146, where this Court quoted from Spinelli v. United States (1969), 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. Here, the evidence from the affidavits considered by the District Court showed t h a t J a m e s G i l l m e t h i s d e a t h a s a r e s u l t of a p o l i c y of
p e r s i s t e n t c h i l d a b u s e f o r m u l a t e d by DeLorme a n d e f f e c t u a t e d i n l a r g e p a r t by a p p e l l a n t . She encouraged t h e growth of t h e p o l i c y by c o u n s e l i n g t h e c h u r c h members t o c o m p l y ; s h e inflicted beatings remarkably similar to those which
d i r e c t l y r e s u l t e d i n t h e d e a t h o f James G i l l on a v a r i e t y o f c h i l d r e n of the commune, i n c l u d i n g James h i m s e l f . While t h i s c o n d u c t b e g a n i n l a t e 1 9 7 9 when t h e c h u r c h ' s d i s c i p l i - n a r y p o l i c y f i r s t a r o s e , i t c o n t i n u e d when t h e c h u r c h moved i n t o Montana s h o r t l y b e f o r e James G i l l ' s d e a t h . The affidavits showed that James Gill's death re- s u l t e d from a c o n t i n u i n g c o u r s e of b r u t a l abuse i n which t h e a p p e l l a n t was b o t h a n i n s t i g a t o r a n d a n a c t i v e p a r t i c i p a n t . The e v i d e n c e i n d i c a t e d a p p e l l a n t h a d p r e v i o u s l y b e a t e n J a m e s t o a p o i n t of u n c o n s c i o u s n e s s and t h a t because of t h e b e a t -
i n g s and h i s s i c k l e c e l l anemia, t h e c h i l d ' s c o n d i t i o n was n o t i c e a b l y weakened by t h e time t h e g r o u p moved t o Montana.
Here t h e D i s t r i c t C o u r t , u s i n g i t s common s e n s e a n d d r a w i n g p e r m i s s i b l e i n f e r e n c e s , found p r o b a b l e c a u s e t o b e l i e v e t h a t appellant's i n t e n t i o n a l and knowing i n f l i c t i o n , encourage- ment a n d i n s t i g a t i o n o f s u c h i n j u r i e s c a u s e d o r a i d e d and a b e t t e d i n t h e c a u s e o f James G i l l ' s death. These a f f i d a - v i t s p r o v i d e more t h a n s u f f i c i e n t s u p p o r t f o r t h e D i s t r i c t
Court's conclusion. The n e x t i s s u e f o r c o n s i d e r a t i o n i s w h e t h e r t h e r e was s u f f i c i e n t evidence t o support the jury v e r d i c t finding t h e a p p e l l a n t g u i l t y of d e l i b e r a t e homicide. Appellant argues t h a t under s e c t i o n s 45-2-301 a n d -302, MCA, f o r her t o be guilty of deliberate homicide, there had to be evidence
s h o w i n g (1) t h a t a p p e l l a n t d i d some a c t w h i c h e i t h e r c a u s e d o r f a c i l i t a t e d t h e v i c t i m ' s d e a t h , and ( 2 ) t h a t s h e d i d t h a t
a c t p u r p o s e l y o r knowingly. She a r g u e s t h a t u n d e r S t a t e v . Jones ( 1 9 6 3 ) , 1 4 3 Mont. 155, 1 8 1 , 387 P.2d 913, 926, this Court held: " . .. i n every crime o r p u b l i c o f f e n s e t h e r e must e x i s t a union o r j o i n t o p e r a t i o n of a c t and i n t e n t . "
A p p e l l a n t a r g u e s t h a t under J o n e s , therefore, f o r her t o be l i a b l e f o r t h e d e a t h o f J a m e s G i l l i t m u s t b e shown t h a t h e r
a c t of d i s c i p l i n i n g James G i l l i n J u l y 1 9 8 0 and a g a i n i n September 1980 was done with the accompanying intent, knowledge o r p u r p o s e t h a t t h i s d i s c i p l i n e would c a u s e h i s
death. A p p e l l a n t c l a i m s t h e r e was no e v i d e n c e f r o m which t o draw a n y s u c h i n f e r e n c e . Appellant argues t h a t , i n a d d i t i o n t o t h e requirement
t h a t t h e r e m u s t b e some e v i d e n c e s h o w i n g a " c o n d u c t " o n t h e p a r t of t h e d e f e n d a n t t o cause t h e d e a t h , under t h e p r o v i - s i o n s of s e c t i o n 45-2-201, MCA, t h e r e m u s t b e some " c a u s a l r e l a t i o n s h i p " b e t w e e n t h e c o n d u c t and t h e r e s u l t i n g d e a t h . W have p r e v i o u s l y set f o r t h t h e f a c t s s u p p o r t i n g t h e e f l l i n g of the information against appellant. I n reviewing
t h e s e f a c t s t o show a s u f f i c i e n c y o f t h e e v i d e n c e , w e m u s t note t h a t t h e S t a t e d i d not attempt t o prove t h a t a p p e l l a n t s t r u c k t h e blow t h a t e n d e d J a m e s G i l l ' s life. The S t a t e ' s c a s e was tried on the theory that a p p e l l a n t was a major
p a r t i c i p a n t i n a s y s t e m a t i c s e r i e s of a c t s which l e d t o t h e d e a t h o f J a m e s G i l l , a n d , u n d e r t h i s a s p e c t of t h e c a s e , it
was appellant's c o n d u c t which was " a " c a u s e of the death. S e c t i o n 45-2-201, MCA.
A l l of the a c t s here related d i r e c t l y to the d i s c i - p l i n a r y p r o g r a m of t h e church, c a r r i e d on u n d e r t h e d i r e c - t i o n o f J a m e s DeLorme, t h e c r e a t o r and l e a d e r o f t h e c h u r c h . DeLorme spent much of the time during the last two years of James Gill's life on the road, and during those times appel- lant and her husband assumed the responsibility for child discipline. Appellant was involved in church discipline through- out the time the church moved from Washington to Glasgow and Poplar. Along with her husband and DeLorme, appellant coun- seled the Gills and other church members about proper disci- pline of children. This discipline included punishment by beating with a fiberglass stick or electrical cord followed by a cold-water hose down. Appellant disciplined James Gill in this manner in his mother's presence for his refusal to eat; beat a one-year-old child who did not come back when called; and whipped Justelle Phillips DeLorme with an elec- trical cord in her mother's presence. Justelle testified at trial that the appellant did most of the whipping for the church and primarily was responsible for spanking James Gill in Glasgow. Appellant's involvement in the church's disci- pline policy continued to the very day of James Gill's death when she left Powers with the children, including James Gill, and told Powers he was in charge. The evidence clearly established that appellant knew of the severe beatings inflicted on the children of the church members. She was aware that Justelle Phillips had at one time been beaten so severely that she was bruised from the waist down and passed blood in her urine. Appellant knew that James Gill suffered from sickle cell anemia and had beat him into unconsciousness on at least one prior occa- s ion. Appellant argues that by allowing the evidence of "other crimes" the trial court failed to adhere to the
decisions of t h i s C o u r t i n S t a t e v. J u s t (1979), Mon t . , 602 P.2d 957, 36 S t . R e p . 1649, and S t a t e v . Brubaker
( 1 9 8 1 1 1 - Mont. , 625 P.2d 78, 38 S t . R e p . 432. This Court has i d e n t i f i e d s e v e r a l kinds of evidence
w h i c h may b e a d m i t t e d despite the fact it tends t o prove
crimes o t h e r t h a n t h o s e c h a r g e d . See, S t a t e v. Meidinger
( 1 9 7 2 ) , 1 6 0 Mont. 310, 321, 502 P.2d 58, 65, wherein t h i s
Court allowed evidence of c r i m e s committed in preparation
f o r t h e charged o f f e n s e a s p a r t of r e s g e s t a e . In addition,
i n S t a t e v. F r a t e s ( 1 9 7 2 ) , 1 6 0 Mont. 431, 437, 503 P.2d 47,
50, we allowed evidence of prior drug sales between the
d e f e n d a n t and t h e p o l i c e i n f o r m a n t a s " p a r t of the corpus
d e l e c t i of t h e c r i m e ... charged." I n a s e r i e s of r e c e n t c a s e s , t h e C o u r t h e l d t h a t e v i d e n c e o f crimes w h i c h i s i n e x -
t r i c a b l y o r i n s e p a r a b l y l i n k e d w i t h t h e crime c h a r g e d may b e
admitted without regard to the rules governing "other
crimes" evidence. S t a t e v. T r o m b l e y ( 1 9 8 0 ) , Mont. -, 620 P.2d 3 6 7 , 37 S t . R e p . 1871, and S t a t e v. Jackson (1979),
1 8 0 Mont. 1 9 5 , 202, 589 P.2d 1009, 1014; s e e a l s o , S t a t e v.
Powers, s u p r a .
The common t h r e a d t y i n g t h e s e c a s e s t o g e t h e r is t h e
f a c t t h a t t h e S t a t e is e n t i t l e d t o p r e s e n t t n e e n t i r e corpus
delecti of the charged offense including matters closely
r e l a t e d t o t h e o f f e n s e and e x p l a n a t o r y o f i t , e v e n when s u c h
evidence discloses crimes other than those charged. The
S t a t e ' s e v i d e n c e i n t h i s case showed t h a t t h e f i n a l b e a t i n g s
inflicted on James G i l l differed from those previously
i n f l i c t e d by a p p e l l a n t a n d o t h e r c h u r c h members o n l y i n t h e
u l t i m a t e s e v e r i t y of t h e r e s u l t . We hold that the jury is entitled to view the death of James Gill in the context of prior events and that the beatings inflicted by the other people in the community were not isolated events but part of a continuous series of beatings inflicted by appellant and others over a period of months. To properly understand the events that took place before James Gill's death, the jury was entitled to consider all of these factors of child abuse prior to the boy's death. As we noted in State v. Powers, supra, under these facts the State need not prove a specific intent to kill to prove deliberate homicide but need only show that the defendants engaged in a common design or course of conduct to accomplish an unlawful purpose (child abuse or assault). In Powers this Court also approved the State's contention that under Montana's accountability statute, where codefen- dants undertake a course of conduct or common scheme which results in a person's death, all can be held criminally responsible for a murder, citing People v. Spagnola (1970), 123 Ill.App.2d 171, 260 N.E.2d 20. See also, People v. Johnson (1966), 35 111.2d 624, 221 N.E.2d 662, and People v. Richardson (1965), 32 111.2d 472, 207 N.E.2d 478. We find that the facts here are sufficient under Spagnola and the cases above-cited to support the jury verdict. The next issue raised is whether the court properly admitted two electrical cords as exhibits. The cords in question were State's Exhibits 8 and 9 and had been seized from appellant's mobile home on January 10, 1981, after Arthur Riley consented to the search. The State offered the cords through the testimony of Sgt. Ronald Wilson who seized them d u r i n g t h e s e a r c h . The o f f e r was o b j e c t e d t o , and t h e
S t a t e withdrew t h e o f f e r pending f u r t h e r f o u n d a t i o n d u r i n g t h e testimony of J u s t i n P h i l l i p s . J u s t i n P h i l l i p s , one of
t h e c h i l d r e n , t e s t i f i e d t h a t when Powers was i n f l i c t i n g t h e f i n a l b e a t i n g on J a m e s G i l l , he told Justin to f e t c h an
e x t e n s i o n c o r d from t h e cupboard. After questioning Justin about t h e cord, t h e S t a t e offered it f o r admission with t h e f o u n d a t i o n l a i d by W i l s o n who had o b t a i n e d t h e c o r d d u r i n g t h e s e a r c h . The c o u r t t h e n t o o k t h e m a t t e r u n d e r a d v i s e m e n t .
F u r t h e r a r g u m e n t a b o u t t h e c o r d s t o o k p l a c e when t h e S t a t e announced i t s i n t e n t i o n t o r e s t i t s c a s e . They w e r e f i n a l l y admitted a s e x h i b i t s i n evidence. A p p e l l a n t a r g u e s t h a t t h e c o r d s were n e i t h e r suffi-
ciently i d e n t i f i e d a s t h o s e c o r d s used t o b e a t James G i l l n o r c o n n e c t e d w i t h a n y c o n d u c t of t h e a p p e l l a n t . A s w e h a v e p r e v i o u s l y h e l d , t h e f o u n d a t i o n f o r a d m i s s i o n of e x h i b i t s i s l e f t t o t h e d i s c r e t i o n of the t r i a l court. See, S t a t e v.
Coleman, s u p r a . H e r e , t h e r e was no a b u s e o f t h a t d i s c r e t i o n . S g t . Wilson e s t a b l i s h e d t h e c h a i n of c u s t o d y of t h e e x h i b i t s
from t h e t i m e of t h e i r s e i z u r e t o t h e t i m e t h e y were a d m i t - ted. J u s t i n P h i l l i p s f testimony indicated that the cords w e r e s i m i l a r t o t h o s e employed t o b e a t J a m e s G i l l on two o c - casions. The c o r d s w e r e r e l e v a n t i n l i g h t o f Dr. M u e l l e r ' s
d e s c r i p t i o n of t h e m a r k s on James G i l l ' s body a s i n f l i c t e d with a looped o b j e c t . They a l l o w e d t h e j u r y t o compare t h e
c o r d s w i t h t h e marks d e p i c t e d i n t h e p h o t o g r a p h e x h i b i t s . F i n a l l y , a p p e l l a n t a r g u e s t h a t t h e e x h i b i t s were n o t t i e d t o h e r c o n d u c t and t h e r e f o r e s h o u l d h a v e b e e n e x c l u d e d under our r e c e n t d e c i s i o n of S t a t e v. Casagranda ( 1 9 8 1 ) , - , Mont. - 637 P.2d 8 2 6 , 38 S t . R e p . 2122. In that case, the S t a t e i n t r o d u c e d i n t o e v i d e n c e a p h a r m a c e u t i c a l b o t t l e which was never connected in any way to the charged burglary. Here, t h e c o r d s were c o n n e c t e d t o t h e b e a t i n g s i n f l i c t e d on James G i l l through the testimony of Justin Phillips. C a s a q r a n d a i s o b v i o u s l y d i s t i n g u i s h a b l e on t h e f a c t s . We
f i n d t h e e x h i b i t s were p r o p e r l y a d m i t t e d . The next issue raised concerns whether the court properly admitted photographs of the victim's body into evidence. T h i s i s s u e was c o v e r e d f u l l y i n S t a t e v. Powers,
supra. W e adopt t h e f i n d i n g s i n t h a t case, noting t h a t t h e t e s t i m o n y of Dr. M u e l l e r was v i r t u a l l y t h e same i n t h e two
cases. Dr. Mueller t e s t i f i e d t h a t t h e p i c t u r e s a c c u r a t e l y r e p r e s e n t e d t h e v i c t i m ' s a p p e a r a n c e a t t h e a u t o p s y and were reasonably necessary to depict the multiplicity and the e x t e n t of t h e i n j u r i e s , how t h e y were c a u s e d and t h e i r a g e .
Here, the p i c t u r e s taken a t t h e autopsy d e f i n i t e l y r e l a t e d to the charges against the appellant and were properly admitted. S e e , S t a t e v. Hoffman ( 1 9 8 2 ) , - Mont . , 639 P.2d 507, 39 St.Rep. 79. The next issue raised by the appellant concerns whether the court properly instructed the jury in the l a n g u a g e of the amended information. I n s t r u c t i o n No. 16 stated: "You a r e i n s t r u c t e d t h a t t h e s p e c i f i c c h a r g e involving the defendants reads a s follows: " ' T h a t d u r i n g t h e p e r i o d of November, 1979 t o J a n u a r y 9, 1 9 8 1 a t Yakima County, Washington, V a l l e y County and R o o s e v e l t County, Montana t h e Defendants committed t h e o f f e n s e of D e l i b e r a t e Homicide, a f e l o n y , i n t h a t t h e D e f e n d a n t s d i d p u r p o s e l y o r knowingly c a u s e o r a i d e d o r a b e t t e d i n p u r p o s e l y o r knowingly c a u s i n g t h e d e a t h of James G i l l , a human b e i n g , by i n s t i g a t i n g , i n c i t i n g , p r o m o t i n g , e n c o u r a g i n g o r commanding t h e p h y s i c a l a b u s e o r m i s t r e a t m e n t of James G i l l , and/or by lending t h e i r support, a s s e n t , countenance o r approval t o t h e continued or repeated m i s - t r e a t m e n t o f James G i l l , and/or by f a i l i n g o r r e f u s i n g t o i n t e r v e n e or oppose t h e m i s t r e a t - ment of James G i l l , and/or by f a i l i n g o r r e f u s i n g t o s e c u r e medical o r hygenic c a r e f o r James G i l l n e c e s s a r y f o r h i s p h y s i c a l well-being i n v i o l a t i o n of s e c t i o n s 45-5- 1 0 2 ( l ) ( a ) and 4 5 - 2 - 3 0 2 ( 3 ) , MCA and c o n t r a r y t o t h e form, f o r c e , and e f f e c t of t h e s t a t u t e s i n s u c h c a s e made and p r o v i d e d and a g a i n s t t h e p e a c e and d i g n i t y of t h e S t a t e o f Montana. ' "To t h i s c h a r g e t h e d e f e n d a n t s have p l e d n o t g u i l t y and under t h e i r p l e a s , t h e y deny e v e r y m a t e r i a l a l l e g a t i o n of t h e Amended Informa- t i o n a g a i n s t them, and i n o r d e r t o c o n v i c t them of t h e c r i m e c h a r g e d a g a i n s t them e v e r y m a t e r i a l f a c t necessary t o c o n s t i t u t e such c r i m e m u s t be p r o v e d by t h e S t a t e by c o m p e t e n t e v i d e n c e , beyond a r e a s o n a b l e doubt. I f t h e j u r y e n t e r t a i n s any r e a s o n a b l e d o u b t upon any f a c t o r e l e m e n t n e c e s s a r y t o c o n s t i t u t e t h e c r i m e c h a r g e d , it i s your d u t y t o g i v e t h e d e f e n d a n t s t h e b e n e f i t of s u c h d o u b t and a c q u i t . " (Emphasis added. ) To this proposed instruction counsel for appellant o b j e c t e d on t h e f o l l o w i n g b a s i s :
"Your Honor, I took m i n s t r u c t i o n b a s i c a l l y y from -- and t h e o n l y o b j e c t i o n t h a t I have i s t h a t i f you p u t t h e i n f o r m a t i o n i n , t h a t i t would c o n t a i n e x t r a wordage which m i g h t c o n f u s e t h e j u r y on t h e a c t u a l e l e m e n t s of t h e o f f e n s e , it has such t h i n g s a s m a l t r e a t - ment and s o f o r t h and t h e r e i s n o t g o i n g t o be an i n s t r u c t i o n on n e g l i g e n t h o m i c i d e , s o I think t h i s is confusing t o t h e jury." Appellant's objection to the instruction must be
c o n s i d e r e d i n l i g h t of o u r p r e v i o u s d i s c u s s i o n of t h e f i r s t issue. I n McKenzie, s u p r a , we n o t e d t h a t t h e p u r p o s e of t h e
information is t o provide t h e defendant with n o t i c e , n o t t o p r o v i d e d i s c o v e r y of a l l t h e S t a t e ' s evidence. Appellant p r e v i o u s l y had f i l e d m o t i o n s t o d i s m i s s t h e o r i g i n a l i n f o r - m a t i o n and two amended informations. As a r e s u l t of his
objections, the State amended to provide the necessary i n f o r m a t i o n c o n t a i n e d i n I n s t r u c t i o n No. 16. W have i n o u r e d i s c u s s i o n of t h e f i r s t i s s u e upheld t h e s u f f i c i e n c y of t h a t i n f o r m a t i o n and f i n d no n e c e s s i t y o f c h a n g i n g t h a t d e c i s i o n under t h i s second a t t a c k on t h a t i s s u e . This Court has previously established the standard for instructions that a single instruction must not be
viewed in artificial i s o l a t i o n b u t must b e viewed in the context of t h e o v e r a l l charge. I f a l l instructions,reviewed as a whole, f a i r l y a n d a c c u r a t e l y p r e s e n t t h e c a s e t o t h e jury, t h e f a c t t h a t one i n s t r u c t i o n , s t a n d i n g alone, is n o t
a s f u l l as i t m i g h t h a v e b e e n is n o t r e v e r s i b l e e r r o r . S t a t e v . Coleman, s u p r a ; S t a t e v . A z u r e ( 1 9 7 9 ) , 1 8 1 Mont. 47, 591
P.2d 1 1 2 5 ; S t a t e v. F a r n e s ( 1 9 7 6 ) , 1 7 1 Mont. 368, 558 P.2d 472. The i n s t r u c t i o n is a p r o p e r i n s t r u c t i o n i n a d e l i b e r - a t e homicide c a s e , and i t s o n l y d i f f e r e n c e from t h e i n s t r u c - t i o n o f f e r e d i n t h e p r e v i o u s d e f e n d a n t s 1 case i s t h a t t h e w o r d s o f t h e i n f o r m a t i o n were i n s e r t e d i n t o i t . The i n s t r u c - t i o n e x p l a i n s i n d e t a i l t h e S t a t e ' s t h e o r y of t h e c h a r g e and when r e a d w i t h t h e o t h e r i n s t r u c t i o n s g i v e n by t h e c o u r t , I n s t r u c t i o n Nos. 30, 31, 32, 33, 34, 35, 36, 37, and 38,
a l o n g w i t h I n s t r u c t i o n No. 13, it i s o u r o p i n i o n t h a t t h e i n s t r u c t i o n was p r o p e r l y g r a n t e d .
The last issue for consideration is whether the v e r d i c t i s s u p p o r t e d by s u f f i c i e n t e v i d e n c e . As previously
s e t f o r t h , t h e r e is a m p l e e v i d e n c e t o s u p p o r t t h e v e r d i c t i n this case which would allow the jury to find appellant g u i l t y beyond a r e a s o n a b l e d o u b t . As we previously noted i n
S t a t e v. Fitzpatrick ( 1 9 7 3 ) , 1 6 3 Mont. 220, 227, 516 P.2d 605, 610, evidence must be given "all the legal effect
toward g u i l t which it c o u l d s u p p o r t , " and c o n f l i c t s i n t h e e v i d e n c e on a p p e a l must be r e s o l v e d i n f a v o r of the State.
See, S t a t e v. Pascgo ( 1 9 7 7 ) , 1 7 3 Mont. 121, 566 P.2d 802.
When the evidence is a n a l y z e d in l i g h t of the rules set forth in the above c a s e s , it i s more than sufficient to s u p p o r t t h e S t a t e ' s t h e o r y of t h e c a s e .
F i n d i n g no r e v e r s i b l e e r r o r we a f f i r m t h e c o n v i c t i o n .
We concur:
%!a-Chief JuStic5
Justices Mr. Justice John C. Sheehy, dissenting:
I would reverse the conviction of Sherry Riley. In my opinion the connection of Sherry Riley to the beating death of James Gill is far too attenuated to make her accountable with the principals in this case. This is a bizarre case of guilt by association. She has been convicted as accountable not because she acted to whip or beat James Gill, or stood by while he was being beaten, but because she adhered to a belief in the strong discipline of children as a religious tenet. Acting under that tenet, she had previously administered some strong discipline herself, to James Gill and to others, but she never beat anyone to the point of death. It cannot be said under the evidence here that she "purposely or knowingly" acted to bring about the death of James Gill, or that she purposely promoted or facilitated the commission of deliberate homicide. Additionally, I think that she is at the least entitled to a new trial because instruction no. 16 is fatally flawed in permitting the jury to convict Sherry Riley for nonstatutory reasons. In effect, the court and the jury made up their own crime of accountability. A person is accountable under section 45-2-302(3), MCA, only when, "either before or during the commission of an offense with the purpose to promote or facilitate such commission," the person aids or abets the principal actor in the planning or commission of the offense. The court correctly instructed the jury on this point in instruction no. 30. Instruction no. 16 conflicts with instruction no. 30 because no. 16 adds additional but nonstatutory grounds upon which to convict of accountability. By breaking instruction no. 16 into some of its components, one can see language that had no place in an instruction to the jury: ". . . The defendants did purposely or knowingly cause or aided or abetted in purposely or knowingly causing the death of James Gill by " [l] ' ... lending their support ... countenance or approval to the continued or repeated mistreatment of James Gill; "[2] '. .. failing or refusing to intervene or oppose the mistreatment of James Gill; " [3] I . .. failing or refusing to secure medical or hygenic care for James Gill; "[4] ' . . . in violation of sections 45-2-201 (I), (a), and 45-2-302 (3), MCA ... I1
The language contained in [l], [2], and [3], is not to be found in any statute defining a crime either of account- ability or deliberate homicide in Montana. Yet, that bracketed language is, by the statement in [4] held out to the jury as being a violation of certain sections of the Montana Code. On that basis, the instruction is misleading, confusing and in conflict with the other instructions given by the court which define the offense of accountability in statutory language. It was of course improper in this case for the court to include the language of the information in an instruction to the jury. We have approved in earlier cases the inclusion of the language from an information in a jury instruction, particularly in State v. McKenzie (1980), - Mont .- I
608 P.2d 428, 444, 37 St.Rep. 325, 339, where we said: "PpIontana'scriminal code is written in clear plain language which serves well as the basis for instructions to the jury. There was no error in incorporating the entire Information into the preliminary instructions, - - - -is basically in for it too statutory language merely inserting dezndant's - - - victim's - -in the proper name and the name - places and enumerating the weapons used ... (Emphasis added.) It is one thing to incorporate the statutory language in an instruction from an information and quite another to include in an instruction nonstatutory language from an information. For all we know, the jury convicted Sherry Riley of "failing or refusing to secure medical care" for James Gill or "failing or refusing to intervene or oppose in the mistreatment of James Gill," for neither or which is there a statutory duty placed upon Sherry Riley. To that extent instruction no. 16 invents a crime not set out in our criminal code. I therefore dissent.
Mr. Justice Daniel J. Shea dissenting: I join with Mr. Justice Sheehy in his dissent.