NO. 81-474
I N THE SUPREME COURT O F THE STATE O MONTANA
F
1982
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.