State v. Powers

No. 81-359
IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,
Plaintiff and Respondent,

DANIEL EMMETT POWERS, ROBERT STEELE
POOLE, GRADY GILL and JENNIFER DENISE GILL,
Defendants and Appellants.

Appeal from: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt
Honorable M. James Sorte, Judge presiding.
Counsel of Record:
For Appellants:

Cresap and Phillips, Sidney, Montana
Richard Phillips argued, Sidney, Montana
Gallagher, Archambeault and Knierim, Glasgow, Montana
Matthew Knierirn argued, Glasgow, Montana
Francis J. McCarvel argued, Glasgow, Montana
Ralph J. Patch argued, Wolf Point, Montana
For Respondent:

Hon. Mike Greely, Attorney General, Helena, Montana
Chris Tweeten argued, Assistant Attorney General, Helena,
Montana
Marc F. Racicot, County Prosecutors Service Bureau,
Helena, Montana
James A. McCann, County Attorney, Wolf Point, Montana

Submitted: March 29, 1982
Decided: June 7, 1982
FileJ.U.
N 7 - 1982
Mr. Chief Justice Frank 1.Haswell delivered the Opinion of
the Court.

Each of the four defendants was convicted of deliberate
homicide in the death of five year old James Gill following
a jury trial. Each defendant appeals from the judgment of
conviction and denial of a new trial. We affirm all convictions.
The evidence showed that all four defendants were members
of the River of Life Tabernacle Church at Poplar, Montana, and
that James Gill was the son of defendants Jennifer Gill and
Grady Gill. Adult members of this organization took turns being
responsible for and supervising the children of the other members.
On Thursday, January 8, 1981, defendant Poole was taking
care of the children, including James Gill, at the trailerhouse
of Art Riley, another church member. At lunch James refused to
eat a baloney sandwich and vomited. Poole took James into the
back bedroom and spanked him with a fiberglass stick an undeter-
mined number of times. Poole also put James in the shower.
The next morning the children were taken to the trailer
where defendants Grady and Jennifer Gill lived. They were fed
breakfast but James refused to eat. Grady Gill told him that
if he didn't eat he would get a spanking. James still wouldn't
eat so Grady Gill struck him on the legs with his belt and, as
James ran past Gill into the bedroom, he struck him again on the
buttocks. Grady Gill and Jennifer Gill then pulled James out
from under the bed and Grady Gill struck him four more times,
twice of which were with the belt. He also placed James in
the shower.
On the evening of that day (January 9 ) , the children
returned to the Riley trailer and were fed supper. James
refused to eat the baloney sandwich he had been given the
night before and defendant Powers, who was in charge of the
children, struck James numerous times with the fiberglass
stick and an electrical cord. He also placed him in a cold
shower a couple of times.
At approximately 12:30 a.m. the next morning (January
10, 1981), Art Riley took James to the emergency room at
the Poplar Hospital and James was pronounced dead a few minutes
later. After the Roosevelt County undersheriff and the county
attorney were informed of the matter, the undersheriff went
to Riley's trailer at about 3:30 that morning. Defendant Poole
answered the door and voluntarily discussed the matter with the
undersheriff. Poole described James as a rebellious child and
stated that although all children were evil on the inside, the
church was developing a more perfect child through chastisement.
Subsequently, the county attorney filed an amended information
charging defendants with deliberate homicide and purposely or
knowingly causing, or in aiding or abetting, James' death.
Prior to trial, Powers moved for the appointment of an investigator,
which was denied.
At trial the prosecuting attorney informed the court that
he would not seek the death penalty and the court, over all
defendants' objections, ruled that each defendant would be
limited to six peremptory challenges to the prospective jurors
and one for the alternative juror. Dr. Mueller, who performed
the autopsy, testified there were about 150 bruises on the
victim's body, 75 percent of which had been inflicted within
48 hours prior to death. The doctor referred to various color
photographs taken during the autopsy, which were admitted into
evidence. Also at trial, the undersheriff testified as to his
conversation with Poole (Poole did not testify) and the court
admitted testimony of prior acts against the victim and other
children by members of the church other than defendants.
 The jury found all four defendants guilty of deliberate
homicide. Powers was sentenced to 60 years in the State
Prison, Grady Gill to 20 years with 12 years suspended, Poole
to 10 years with 4 years suspended, and Jennifer Gill received a
20 years suspended sentence.
The following specifications of error are raised on appeal:
1. Error in admitting color photographs in evidence.
2. Error in limiting defendants to six peremptory
challenges of prospective jurors and one for the alternate
juror .
3. Error in denying Powers' motion for an investigator.
4. Failure of the State to prove beyond a reasonable
doubt that defendants "purposely or knowingly" caused the
death of James Gill.
5. Error in admitting testimony of prior acts of violence
committed by persons not defendants against the victim or
other children.
6. Denial of defendants' right of confrontation by
allowing the undersheriff to testify regarding Poole's state-
ments to him.
Initially, we find the trial court properly admitted the
color photographs of James Gill's body. State's exhibits 16,
24 and 25 were admitted without objection. Defendants did
not object to State's exhibits 1 thru 5 except to request the
court to postpone a ruling until the other photos had been
received so there is no basis preserved for appellate review
of those photographs.
The remaining photos were also properly admitted because
their probative value outweighed any possible prejudicial affect
in light of Dr. Mueller's testimony. With regard to several
of the pictures, the following conversation occurred between
Dr. Mueller and the court:
"THE COURT: Am I right in believing that you
looked through these pictures and you do feel
the ones that you have there that are being
offered, are necessary for you to fully describe
what you actually found in the course of your
examination? A. Yes.
"THE COURT: All right, 17, 21 and 22 will be
admitted."
Dr. Mueller also testified the pictures accurately represented
the victim's appearance at the autopsy and were reasonably
necessary to depict the multiplicity and extent of the injuries,
how they were caused and their age.
Defense counsel argues that the pictures were improperly
admitted and cites State v. Bischert (1957), 131 Mont. 152, 308
P.2d 969. In Bischert, we reversed and remanded the case for
new trial because the testifying doctor did not need the pictures
to explain his findings and the pictures showed burns on the
baby's skin which were in no way related to the crime charged
(manslaughter by starvation).
Here, however, the amended information charges defendants
with the beating and mistreatment of James Gill. The pictures

taken atithe autopsy are relevant and material to this charge.
Their probative value outweighs their prejudicial effect. See
,
State v. Hoffman (1982), - Mont. - 639 P.2d 507, 39 St.Rep.
79, (patholigist's color slides were properly admitted) and
State v. Warrick (1968), 152 Mont. 94, 446 P.2d 916 (color
photographs were properly admitted).
Appellants' second specification of error relates to
limiting each defendant to six peremptory challenges and one
for the alternate juror. This action was taken after the
prosecutor informed the District Court that it would not seek
the death penalty if the defendants were convicted. Appellants
argue that since this was a capital case, they were entitled
to 8 peremptory challenges under section 46-16-305, MCA,
which states in pertinent part:

"Peremptory challenges. Each defendant shall
be allowed eight peremptory challenges in
capital cases . . ."
At the outset, we held that defendant Powers cannot now be
heard to complain because he waived his sixth challenge and
thus did not exhaust all the peremptory challenges to which
he was entitled.

Additionally, there is ample authority for the proposition

that when the prosecutor and court agree that the death penalty
will not be sought, it will not be considered a capital case

in determining the number of peremptory challenges to which a
party is entitled. In United States v. Maestes (10th Cir.
1975), 523 F.2d 316, the court held that the lower court acted

properly in limiting defendant's peremptory challenges when
the prosecutor disclaimed the possibility of the death penalty
being imposed. Under the applicable statute, the defendant
was entitled to 20 peremptory challenges for a crime punishable
by death and the trial court limited him to 10. In accord:

United States v. Martinez (9th Cir. 1976), 536 F.2d 886; People
v. Holmes (1974), 19 Ill.App.3d 814, 313 N.E.2d 297; and State
v. Leonard (1978), 296 N.C. 58, 248 S.E.2d 853.
With regard to the third issue, defendant Powers argues
that the trial court's failure to appoint him an investigator
deprived him of his right to effective assistance of counsel
and to a fair trial by an impartial jury. Defendant's motion

for an investigator was largely based on the fact that the
State's witnesses were located in several states and numerous
counties.
Powers' motion for appointment of an investigator was

properly denied. Powers was notified 19 days before trial
what the testimony of out-of-state witnesses would be.
~lso,
Powers' counsel was given a full opportunity to

interview the witnesses prior to trial and their statements
had previously been provided. Their testimony was summarized

in various court documents, including the supplemental affidavit
in support of amended informations.
Powers' motion for an investigation states in conclusory
fashion that ". . . unless an investigator is appointed in this
case to assist Defendant's counsel the Defendant would be
effectively deprived of an opportunity to conduct a defense

against any testimony offered by these witnesses." This does
not allege sufficient grounds to justify the motion. See State
v. Dillon (1970), 93 Idaho 698, 471 P.2d 553. In any event,
at trial Powers attempted to shoulder all the blame for the
victim's death (against counsel's advice) so the appointment
of an investigator would have been a useless act.

Appellants next specification of error relates to the
sufficiency of the evidence to prove the required mental state.
The defendants here were charged with deliberate homicide and
the pertinent parts of our statute relating thereto are set
out below:
"45-5-101. Criminal homicide. (1) A person com-
mits the offense of criminal homicide if he
purposely, knowingly, or negligently causes the
death of another human being.
"(2) Criminal homicide is deliberate homicide,
mitigated deliberate homicide, or negligent
homicide.
"45-5-102. Deliberate homicide. (1) Except as
provided in 45-5-103(1), criminal homicide
constitutes deliberate homicide if:
"(a) it is committed purposely - knowingly
or
...
"45-2-101. General definitions ...
 " (33) 'Knowingly'--a person acts knowingly with
respect to conduct or to a circumstance des-
cribed by a statute defining an offense when
he is aware of his conduct or that the circumstance
exists. A person acts knowingly with respect to
the result of conduct described by a statute
defining an offense when he is aware that it is
highly probable that such result will be caused by
his conduct. When knowledqe of the existence of a
particular fact is an element of an offense, such
knowledge is established if a person is aware of
a high probability of its existence. Equivalent
terms such as 'knowing' or 'with knowledge' have
the same meaning.

" ( 5 8 ) 'Purposelyt--aperson acts purposely with
respect to a result or to conduct described by
a statute defining an offense if it is his
conscious object to engage in that conduct or to
cause that result. When a particular purpose
is an element of an offense, the element is
established although such purpose is conditional,
unless the condition negatives the harm or evil
sought to be prevented by the law defining the
offense. Equivalent terms such as 'purpose' and
'with the purpose' have the same meaning." (Emphasis
added. )
Montana's accountability statute provides in pertinent part:
"45-2-302. When accountability exists. A person
is legally accountable for the conduct of another
when :

"(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."
The State argues that they need not prove a specific
intent to kill to prove deliberate homicide, reasoning that
the defendants engaged in a common design or course of conduct
to accomplish an unlawful purpose (child abuse or assault).
In so doing the State argues that defendants acted "knowingly,"

as defined in our statutes, because they were aware of the
high probability that death would result from the repeated
and escalating violence and beating of the victim.
The State further contends that the Montana accountability
statute was adopted from the Illinois accountability statute
and interpretations thereunder indicate that where codefendants
undertake a course of conduct or common design which
results in a person's death, all can be held criminally
responsible for the murder. People v. Spagnola (1970), 123
Ill.App.2d 171, 260 W.E.2d 20; People v. Johnson (1965), 35
I11.2d 624, 221 N.E.2d 662; People v. Richardson (1965),
32 I11.2d 472, 207 N.E.2d 478. Here, the defendants all
adhered to the policy of the church to impose severe discipline
and committed themselves to that policy by their own acts.
We agree with the State's reasoning. For example, the
evidence clearly shows that defendant Poole beat the victim
with a fiberglass stick and put him in the shower after the
victim vomited at lunch Thursday. In Poole's statement to the
undersheriff he indicated that he, in furtherance of their
church policy, was chastising children so as to produce a more
perfect child. This is sufficient under the Spagnola reasoning.
With regard to Jennifer Gill, the evidence shows that
during the victim's last 48 hours, (wherein, according to
Dr. Mueller's testimony, 75 percent of the bruises were
inflicted) she did not inflict any discipline on the victim.
However, the evidence brought out at trial showed that some of
the victim's injuries were located on his head and face and
thus readily visible to all defendants including his mother.
Further, she testified that James had been coughing and vomiting
prior to his death. Also, she was present at several times

when James was disciplined (including when her husband struck
James several times with his belt the day before he died) and
did nothing to halt the beatings or provide medical care.
In State v. Mally (1961), 139 Mont. 599, 366 P.2d 868,
we quoted from an earlier case which stated that whether death
caused by neglect is murder or manslaughter under the old
criminal statutes depends on the nature and character of
the neglect. From the evidence adduced in this case, the jury
could have concluded that Jennifer Gill aided and abetted the
other defendants in causing the victim's death by her failure
or refusal to perform her duties as a parent, terminate the
beatings and discipline, and provide the victim with needed
medical care and attention. Her conviction of deliberate
homicide can be sustained under Spagnola, supra. In accord:
State v. House (19711, 260 Ore. 138, 489 P.2d 381 (indictment
was sufficient to charge defendants with first degree murder
where it alleged defendants refused to provide their child
with food and medical care); Harrington v. State (Tex. 1977),
547 S.W.2d 616 (defendant's conviction for murder of her child
by starvation upheld on appeal); Zessman v. State (1978), 94
Nev. 28, 573 P.2d 1174 (husband's and wife's convictions for
second degree murder of their child by starvation and dehydration
upheld on appeal).
Defendants next argue that the District Court erred in
admitting testimony of prior acts of violence committed by
persons not defendants against the victim or other children.
Initially, defendant Powers' failure to object to this issue
at trial bars his raising it on appeal. The District Court
properly overruled the other defendants' objections to this
evidence.
Evidence of the acts by church members other than
defendants, and acts by the defendants against children other
than the victim, show the common design toward disciplining
children by beatings arising out of the church policy. It
ties these defendants to that policy by showing the similarity
of methods and discipline practiced by church leaders and these
defendants.
 Additionally, Rule 404(b), Mont.R.Evid. provides
as follows:
"(b) Other crimes, wrongs, acts. Evidence of
other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to
show that he acted in conformity therewith. It
may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or
absence of mistake or accident."
The evidence at issue here provides proof of these defendants'
motive for inflicting the punishment on the victim and the
plan and intent behind the treatment of him.

Defendants' final argument claims that they were denied
their right of confrontation by the trial court allowing the

undersheriff to testify regarding Poole's statements to the

undersheriff. Poole did not testify at trial and consequently

does not raise this issue here. The other defendants argue
that the rule of law laid down in Bruton v. United States
(1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, has been

violated. In Bruton, evidence was admitted of one defendant's
confession which indicated involvement of the codefendant.
The person making the confession did not testify and the
Suprerne Court found that his codefendant's Sixth Amendment
rights were violated.
No doubt the admission of the undersheriff's testimony
regarding Poole's statements to him violated the Bruton rule.
Nonetheless, all Bruton errors do not require reversal.
Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726,
23 L.Ed.2d 284; Schneble v. Florida (1972), 405 U.S. 427, 92
S.Ct. 1056, 31 L.Ed.2d 340. Bruton, supra, states that a
criminal defendant is entitled to a fair trial, but not a
perfect one as there are no perfect trials. In accord, Lutwak
v. United States (1953), 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed.
593; Brown v. United States (19731, 411 U.S. 223, 93 S - C t -
1565, 36 L.Ed.2d 208; Michigan v. Tucker (1974), 417 U.S.

The real issue here is whether the error is harmless,
not affecting the merits, or prejudicial error requiring
reversal. The following excerpt of the undersheriff's
testimony illustrates the gist of defendant Poole's statements
to him:
"A. (By Mahlum) I asked Mr. Poole how the
chastisement would be done, after he mentioned
that to me, and he stated with the rod, and
after he mentioned to me, and described James
Gill to me, I asked him if he personally had
done that, and he answered to me yes on occasion
that he had with his hand and other objects.
"Q. (By Mr. Racicot) That he had in fact
chastised James Gill? A. Yes.
"Q. Did he talk about why this chastisement
was necessary? Why it was necessary with the
rod? A. Mr. Poole advised me that it was
his feeling there were no perfect children,
although they were working at developing that
type of a child, and that was the reason for
the chastising."
The foregoing testimony simply suggests the adherence
of the defendants to the Church's policy of strict discipline
of children and the effectuation of such policy by defendants'
acts and omissions. The proof of these facts by independent
admissible evidence is overwhelming. The tendency of Poole's
statements to incriminate the other defendants is insignificant
in the light of the ambiguity of the statement itself in
identifying the defendants and in the light of stronger
independent evidence of motive.
The federal constitutional test for harmless error is
whether there is a reasonable possibility that the evidence
complained of might be contributed to the conviction, Fahy
v. Connecticut (1963), 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d
171; or stated another way, whether the reviewing court can
declare a belief that the error was harmless beyond a
reasonable doubt. Chapman v. California (1967), 386 U.S.
18, 87 S.Ct. 824, 17 L.Ed.2d 705. Montana statutes provide
that no cause of action shall be reversed by reason of
any error committed by the trial court unless the record shows
that the error was prejudicial (section 46-20-701, MCA) and
that any error which does not affect substantial rights shall
be disregarded (section 46-20-702, MCA). We declare a belief

measured by any of these tests that the error was harmless
beyond a reasonable doubt; that there is no reasonable
possibility that the evidence complained of might be con-
tributed to defendants' conviction; and that the error does
not affect the substantial rights of any of the defendants.
Affirmed.

~hier
Justice
Mr. Justice John C. Sheehy concurring and dissenting:

I concur in the affirmance of the convictions of Daniel
Emmett Powers, Robert Steele Poole and Grady Gill. I do not
agree that we can sustain the conviction of Jennifer Denise
Gill.
The testimony of the pathologist established that the
cause of death of this 5 year old black was the whips and
bangs that he had sustained during the last 48 hours of his
life, coupled with a condition of sickle-cell anemia with
which he was afflicted. The whippings caused 20 percent of
his blood to ooze into tissues surrounding the bruises where
it lodged, useless. The blood loss caused a jamming of the
sickle cells in the capillaries and an increase in the cells'
number, to the extent that the boy's survivability was
fatally impaired.
Jennifer Denise Gill did not participate in a single
whipping or beating or other injury of the decedent in the
critical 48 hours before the death. That period of time is
the only period when it can be said from the evidence that
whippings or spankings administered to the boy resulted in
his death beyond a reasonable doubt.
The State, its counsel realizing that Jennifer Denise
Gill did not participate in the critical beatings that
brought about the death, tried its case against Jennifer
Denise Gill on the basis of accountability, sections 45-2-
301 and -302, MCA. To establish accountability, the State
had to show that she participated as a matter of religion in
the discipline of children, including James Gill, and thereby
became accountable for his death although she never struck
him or whipped him during the critical period which brought
about his death. To establish that the beatings within the
last 48 hours were a part of the religious practice of the
group to which Jennifer adhered, the State relied upon the
testimony of Undersheriff Dean Mahlum, who repeated statements
allegedly made by codefendant Robert Steele Poole.
However, Robert Steele Poole never testified. Accordingly,
counsel for Jennifer Denise Gill has come to this Court on
appeal contending that under Bruton v. United States (1968),
391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, she has been
deprived of her right to confront the witnesses against her.
Violation of the Bruton case was one of the reasons this
Court reversed a conviction in State v. Fitzpatrick (1977),
174 Mont. 174, 569 P.2d 383.
I can agree that violation of the Bruton rule is
harmless as to all of the defendants except Jennifer Denise
Gill. As to the other defendants, each of them actively
participated in the whippings and beatings that occurred
within the critical 48 hours prior to the death. It is only
Jennifer Denise Gill who can be found guilty on the basis of
accountability.
I find Poole's statements, as related by the undersheriff,
to be far more incriminating as far as Jennifer is concerned
than does the majority. In addition to the portions of
Poole's statements quoted in the majority opinion, there are
the following also:
"I asked Mr. Poole, as he had stated to
me that he had gone to the Church, and I
asked him which church that was, and he
advised me it was the River of Life
Tabernacle Church; I asked Mr. Poole how
he arrived at the Riley trailerhouse, and
- stated _ me _ - he had been brought - -
he to - that - t
the trailerhouse --- the children and-
to watch -
was - - position of authority.
- in a -

"After Mr. Poole informed us that he had
been brought to the trailerhouse to watch
 over the children over which he had been
placed in a position of authority, I asked
Mr. Poole what was involved in the authority,
-
and he stated that would include watching
- - children, feedina -them. - chastisins
over the and .
#

them, - -type o£ thing.
- that -

"I asked Mr. Poole if he did know James
Gill, and he answered yes that he did
and he also stated that James was in his
words, a rebellious-type child, and again
in his words, would puke his breakfast back
up into his bowl, and in Mr. Poole's words,
piss on himself.

"Just that he stated that even though children
appeared to be innocent on the outside, on the
inside that they were evil and vile and that
it would take this type of chastising to make
them perfect children." (Emphasis added.)

The undersheriff's repetition of the Poole statements
was the basis of the contention by the State that the extreme
chastisement administered to James Gill was a matter of
church policy to which the State contended Jennifer adhered.
I think the majority recognizes the weakness of the
accountability case against Jennifer without the Poole
testimony because it does not discuss the violation of the
Bruton rule as it affected Jennifer. The majority states
that "the jury could have concluded that Jennifer Gill aided
and abetted the other defendants in causing the victim's
death by her failure or refusal to perform her duties as a
parent, terminate the beatings and discipline, and provide
the victim with needed medical care and attention." If that
statement be true, Jennifer Denise Gill was convicted for
the wrong reasons, and for crimes with which she was not
charged.
The crime of endangering the welfare of children by
violating a duty of care, protection or support is a misdemeanor
 in Montana. Section 45-5-622, MCA. Admissible bits of
evidence to show a violation of the duty of care, protection
and support by a parent are cruel treatment, abuse, infliction
of unnecessary and cruel punishment, abandonment, neglect,
lack of proper medical care, clothing, shelter and food, and
evidence of past bodily injury. Section 45-5-622(4), MCA.
Thus, under our statutes, Jennifer Denise Gill's acts
or omissions regarding James Gill were by law a misdemeanor.
She could not be charged in this case with deliberate homicide
or mitigated deliberate homicide, even under the felony
murder rule (sections 45-5-102 and -103, MCA) because her
acts or omissions do not constitute a felony. The majority
has elevated a misdemeanor to the status of felony deliberate
homicide through the statute on accountability. Standing by,
in itself, does not constitute aiding and abetting.
I would therefore reverse the conviction of Jennifer

Denise Gill.

Mr. Justice Daniel J. Shea dissents and will file a written
dissent later .