No. 84-543
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1986
S T A T E O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
COURTNEY BROOKE A T L A S ,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t 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 C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e G o r d o n B e n n e t t , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Jackson L a w F i r m ; G r e g o r y J a c k s o n argued, H e l e n a ,
Montana
For R e s p o n d e n t :
H o n . 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 , M o n t a n a
J a m e s M. Scheier a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
Mike McGrath, County Attorney, Helena, Montana
Submitted: October 9 , 1986
Decided: November 1 8 , 1 9 8 6
Filed: ja3~ 8 1986
1
i. Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant Atlas appeals from a jury conviction of
deliberate homicide and arson in the First Judicial District
Court, Lewis and Clark County. On August 10, 1985, Atlas was
designated a dangerous offender and sentenced to 120 years
imprisonment with no parole.
We affirm.
Defendant Atlas raises six issues for our review:
1. Did substantial evidence support the verdicts of
guilty?
2. Does the destruction of potentially exculpatory
evidence by the State require reversal of Atlas' conviction?
3. Did the District Court err when it allowed testimo-
ny of a crematorium operator about the effects of cremation
on the human body?
4. Did the District Court err when it allowed video-
taped testimony by Atlas1 former lover about Atlas' extramar-
ital affair?
5. Did the District Court err when it sustained the
State's objection to Atlas1 cross-examination of the coroner
about motive and bias?
6. Did the District Court err when it refused Atlas1
Instruction No. 10, which stated that an unexplained fire is
presumed to be accidental?
Defendant Atlas was 41 years old and resided in the
Helena valley with his wife, Donna, and their son, Brian, and
daughter, Michelle. Defendant filed for bankruptcy in early
1983. Atlas was the beneficiary of casualty homeowners'
insurance and Donna's life insurance, totaling approximately
$250,000.
At 5:18 a.m. on Sunday, July 17, 1983, firefighters and
sheriff's officers responded to a fire at the Atlas resi-
dence. The house burned to the ground. At 7:45 a.m. on July
17, firefighters discovered the charred remains of Donna
Atlas in the living room.
Two days prior to the fire, Donna and Michelle had
traveled to Donna's parents' ranch near Wisdom, Montana.
Donna planned to stay through the weekend and leave Michelle
for the remainder of the summer. Defendant Atlas remained in
Helena. Brian was at a Lions' Camp near Elliston, Montana.
Donna planned to pick up Brian on her return trip to Helena
on Sunday, July 17.
However, Donna received a phone call from defendant on
Saturday afternoon, July 16. Donna appeared upset after the
call. She immediately returned to Helena, alone and one day
early. Her burned body was found sixteen hours later.
Defendant contends that the evidence against him is
circumstantial and not sufficient to support a conviction.
We will discuss the evidence in detail in the course of this
opinion. However, we note that defendant's statements about
the events of Saturday night and Sunday morning are riddled
with contradictions. Saturday evening, while Donna waited
outside in Atlas' truck, defendant told an acquaintance that
he had just picked Donna up at the hospital and that she had
terminal cancer. Donna did not have cancer. Defendant told
investigators that Donna had a sore back, yet also testified
that Donna helped him slide a large couch through an upstairs
opening, then helped him carry it around the house and into
the downstairs. Defendant told investigators that Donna
started a fire in the basement stove because the night was
cool, yet testified that he shifted bedrooms because the
night was so hot. Defendant changed his story several times
about which bedroom he used on Saturday night.
Upon noticing the fire, defendant testified that he
crawled through thick, choking smoke. However, no witness
saw any ash on him, heard him cough from the smoke's effect,
or smelled any smoke on defendant's clothing. The jury did
not accept several of defendant's explanations: why he did
not break the locked sliding glass door to the living room
and help Donna; why he did not unlock the sliding glass door
with the spare key kept next to the door; or why he did not
enter through a second door, located on the same floor and on
the same side of the house.
Throughout the investigation and trial, defendant
Atlas' statements varied in major details and conflicted with
other witness' testimony. These variances and defendant's
explanations were fully presented to the jury for its consid-
eration as the fact-finding body.
Issue No. 1
Did substantial evidence support the verdicts of
guilty?
The substantial evidence test is whether a reasonable
person would accept the conclusion, when viewed in the light
most favorable to the prevailing party. State v. Wilson
(Mont. 1981), 631 P.2d 1273, 1278, 38 St.Rep. 1040, 1047. The
evidence in defendant's trial was primarily circumstantial,
there being no witnesses to the homicidal- act or the arson.
If circumstances are capable of two interpretations, the
trier of fact determines which is the most reasonable.
A careful review of the trial transcript convinces us
that the evidence fully supports the defendant's conviction
of deliberate homicide. The State's two pathologists and
defendant's pathologist testified to the severe thermal
damage to Donna's body, which was found on the burned remains
of the stuffed couch. The State's pathologist testified that
such damage is unusual without the use of accelerants. He
indicated an accelerant may have been applied to the body
because 90 percent of the body was completely charred. Both
parties' experts agreed that Donna's airway had no soot or
thermal damage. Furthermore, Donna's blood and tissue had
less than 10 percent carbon monoxide. The State's patholo-
gists concluded that the lack of soot in the windpipe and
minimal carbon monoxide indicated that Donna was dead before
the fire began. The thiocyanate level in Donna's tissue was
compatible with the pathologists' conclusions, because her
body was exposed to the heat, the falling debris, and the
firefighters' water. In addition, she was found lying face
up with limbs spread, while most fire victims are found face
down in a fetal position. The State's pathologists also
testified that the pulmonary edema in Donna's lungs could
have resulted from strangulation and that her throat may have
been cut out.
Defendant's fire expert based much of his opinion on
interviews with the defendant. The expert did not personally
examine any tissue, did not interview any firefighters, and
did not consult any fire investigators. Yet, he concluded
that Donna was alive during the fire. The jury may appropri-
ately attach less weight to his testimony.
In summary, the evidence of deliberate homicide is
substantial and supports defendant's conviction. "This
[substantial evidence] test is met if a reasonable mind would
accept the evidence as supporting the conclusion reached. ..
If the evidence conflicts, it is within the province of the
trier of fact to determine which shall prevail." State v.
Oman (Mont. 1985), 707 P.2d 1117, 1120, 42 St.Rep. 1565,
1568.
On the issue of arson, the deputy state fire marshal
secured the area where Donna's body was found, which was also
the area of origin of the fire. For several days, he
hand-sifted through the debris. The state fire marshal also
inspected the fire scene. Both fire marshals eliminated the
heating pad under Donna, the wood stove in the living room,
any electrical short, and acts of God as causes of the fire.
They concluded that arson caused the fire.
The fire marshals based their arson conclusion on
several facts. The intense heat far exceeded the temperature
of a normal house fire, as indicated by the destruction of
Donna's limbs and facial bones. The complete consumption of
the carpet indicated that the floor temperature in the living
room reached at least 790°F., while a typical house fire has
floor temperatures below 250°F. The one-hour fire wall
between floors burned through in much less than one hour.
The burn patterns along the baseboards and the even burn in
the living room indicated the use of an accelerant. Defen-
dant's own expert admitted that the "alligator patterns" on
the charred wood were compatible with the use of flammable
liquids.
In summary, the evidence supports the defendant's
conviction for arson. "The United States Supreme Court and
this Court have both stated that a conviction cannot be
overturned when the evidence, viewed in the light most favor-
able to the prosecution, would allow any rational trier of
fact to find the essential elements of the crime beyond a
reasonable doubt." State v. Doney (Mont. 19811, 636 P.2d
1377, 1383, 38 St.Rep. 1707, 1713.
Although circumstantial, the evidence is abundant and
fully supports the defendant's convictions of both deliberate
homicide and arson.
Issue No. 2
Does the destruction of potentially exculpatory evi-
dence by the State require reversal of defendant's
conviction?
Defendant contends that the materials in the living
room were shoveled three or four times and then dumped out-
side the building. He asserts that the materials directly
under the body were discarded without laboratory testing, and
that the couch, the carpet, and the mopboards were not se-
cured. Defendant further contends that the condition of the
scene prevented his expert from examining the evidence and
thus robbed defendant of his right to present a complete
defense.
However, Deputy Fire Marshal Houston carefully pre-
served any burned material with evidentiary value, while
removing non-evidentiary material from the fire site. The
fire marshal hand-sifted the evidentiary debris with a garden
trowel. The baseboard remnants were preserved in an evidence
locker, along with the electrical wiring. The carpet-backing
found beneath Donna's body tested free of accelerants and was
carefully set to the side. The front-end loader, which was
used to clean up the fire scene, never entered the living
room area and never disrupted the evidentiary material. The
State showed great care and diligence in preserving all
relevant evidence. The debris removed by the loader was
irrelevant and nonexculpatory. Furthermore, all the eviden-
tiary material was available at all times for inspection by
defendant's fire expert. We note that the fire expert based
his opinion primarily on interviews with defendant, and prior
to examining any physical evidence.
Defendant claims that the piled debris was exculpatory,
yet offers no factual basis for its potential exculpatory
use. "In order to amoui~t to denial of due process, negli-
gently suppressed evidence must be vital to the defense of
the accused. . . To obtain a new trial, the accused must show
more than suppression; he must show the evidence was material
and of some substantial use to him. " State v. Craig (1976),
169 Mont. 150, 153, 545 P.2d 649, 651. Defendant Atlas has
shown neither negligent destruction nor vital material use.
On the contrary, the State has shown diligent preservation of
all relevant evidence. We find no merit in this issue raised
by defendant.
Issue No. 3
Did the District Court err when it allowed testimony of
a crematorium operator about the effects of cremation on the
human body?
Before trial, defendant moved for an - limine prohibi-
in
tion of the operator's testimony on the grounds of inflamma-
tory prejudice and incompetence. He asserted that
prejudicial testimony is admissible only if it accurately
depicts conditions as they existed, and if it is useful to
explain the evidence. Defendant further contended that the
operator had no personal knowledge of Donna's remains.
At trial, defendant argued that the thermal damage to
Donna's body was more closely related to house fires than to
crematoriums. Defendant produced two pa.thologists, who
testified that they had seen thermal damage similar to Don-
na's in other house fires. Defendant concluded that the
slight relevance of the operator's testimony was outweighed
by its gruesome prejudice.
The trial court questioned the State about the rele-
vance of the operator's testimony. The State responded that
the probative value of the testimony was supported by the
operator's estimates of the time and high temperature neces-
sary for the near-cremation of Donna's body. This testimony
corroborated the fire marshal's estimates of the time and
high temperature of the Atlas fire, thereby indicating
accelerants and arson. The operator's testimony also sup-
ported the testimony of State's pathologists on the intense
heat necessary to char Donna's bones. The operator's testi-
mony was brief and clinical. Furthermore, the operator's
testimony on cremation was a far less prejudicial alternative
than the photographs of Donna's limb-less corpse.
The question of whether the probative value of evidence
is outweighed by potential prejudice must be determined in
the trial court's discretion. A District Court's weighing of
potential prejudice against probative value will be upheld
where there is no abuse of discretion. State v. Pease, Jr.
(Mont. 1.986), 724 P.2d 153, 161, 43 St.Rep. 1417, 1427. "We
will not demand that a trial be sanitized to the point that
,
im.portant probative evidence must be excluded. " State 17.
Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380. In
summary, we find no abuse of discretion in the trial court's
allowing the operator's testimony.
Issue No. 4
Did the District Court err when it allowed videotaped
testimony by defendant's former lover about defendant's
extramarital affair?
In his opening statement, defense counsel portrayed
Courtney Atlas as a loving husband frozen by grief. "At that
time [of the fire] Mr. Atlas was basically so totally grief
stricken that he was just unfunctionable and he wandered
around crying and whatnot and waiting for the fire department
and police to come as he watched everything he owned and the
woman he loved burn in the fire."
Prior to the videotaped testimony, defense counsel
cross-examined several witnesses about Atlas' affection
toward Donna. He asked one of Donna's co-workers: "Okay.
So as far as seeing that there was a lack of emotional dis-
play in the presence of other people, you couldn't say wheth-
er it was Courtney's disposition or Donna's disposition,
could you?" He later asked another co-worker: "So as far as
seeing any, you know, rea.1 close affection flowing back and
forth between Courtney and Mrs. Atlas, that wouldn't have
been unusual for Donna, would it, not to have been kissing or
hugging in public?"
The videotaped testimony was made by defendant's former
lover, Diana Olson. On appeal, defendant contends that
Olson's testimony was character evidence which had not been
d.rawn into issue by defendant during trial, and was therefore
inadmissible under Rule 404 (a), Mont.R.Evid. The State,
however, used Olson's videotaped testimony as probative
evidence to refute defendant's opening assertions and cross-
examinations. Thus, defendant himself opened the door on the
relevancy of Atlas as a loving husband.
Furthermore, during the videotaped cross-examination of
Olson, defense counsel attempted to minimize the impact of
the affair on Atlas' marriage:
Q. And during the time that there was
involvement between the two of you,
there has never been any commitment by
Courtney that he was going to leave
Donna--
A. No.
Q. -- for that relationship.
A. No.
After Olson's testimony, defense counsel continued his
theme of defendant as a loving husband. On direct examina-
tion of defendant, he asked:
Q. How would you describe your rela-
tionship with Donna then over the years?
A. I think as an average pretty good,
because of our similar interests. I
would call it a good -- we, I think, had
ups and downs like anybody, but we had a
pretty good, pretty good relationship
...
9. And did you love Donna?
A. Yes, very much.
Throughout defendant's portrayal of himself as a loving
husband, and the State's rebuttal of that portrayal, the
trial court properly assessed relevancy. "The District Court
has broad discretion to determine whether or not the evidence
is relevant. Without a showing that the District Court has
abused its discretion, this Court will not overturn the
District Court's determination of relevancy." State v. Oman,
The testimony about defendant's relationship with Olson
was also relevant to defendant's homicidal motive. We have
previously held that the testimony of a defendant ' s ex-lover
was admissible when, "evidence of defendant's past intimacies
was highly relevant to the defendant's claim that he killed
[his wife] in the heat of passion upon learning of her affair
. . ." State v. Doll (Mont. 1985), 692 P.2d 473, 478, 42
St.Rep. 40, 47.
Defendant Atlas further contends that the videotaped
testimony concerned an affair which was too remote in time.
Defendant asserted that the affair's physical relationship
had ended seven months prior to the fire. However, the
remoteness in time goes to weight a.nd not to admissibility.
Even the remoteness was questionable, because Olson testified
that, although the physical relationship had ended seven
months earlier, defendant continued to visit her house "just
as friend to friend. "
In summary, Olson's testimony was relevant to rebuttal
and motive. We find that the trial court did not abuse its
discretion in allowing the videotaped testimony about defen-
dant's extra-marital affair.
Issue No. 5
Did the District Court err when it sustained the
State s objection to defendant's cross-examination of the
coroner about motive and bias?
On State's direct examination, the coroner testified:
"It is the worst, worst body that I have ever viewed. " On
cross-examination, Atlas1 counsel asked: "You don't like Mr.
Atlas?" The coroner responded: "Definitely not." The State
immediately objected. Defendant contends that he was improp-
erly cut short of his impeaching inquiry into the coroner's
credibility and hostile feelings.
The court did not abuse its discretion by sustaining
the State's objection. Defendant's cross-examination about
the coroner's bias went beyond the scope of the State's
direct examination. The cross-examination was also irrele-
vant because it had no bearing on the condition of Donna's
body.
Furthermore, the sustained objection did not prevent
defendant from pursuing a related line of inquiry. "The
I-atitude of cross-examination is in the discretion of the
trial court, and this Court will not interfere unless it is
manifest that the trial court abused its discretion." State
v. Gallaher & Coleman (1978), 177 Mont. 150, 159, 580 P.2d
930, 935. Also, if defendant thought that the objection cut
him short, defendant could have called the coroner during his
case-in-chief.
Defendant Atlas suffered no prejudice as a result of
the court's ruling, because the coroner answered before the
State could interpose an objection. If, arguendo, the sus-
tained objection was in error, it did not impair a substan-
tial right because the jury heard the answer.
In either case, defendant failed to make any timely
offer of proof about his cross-examination, in accordance
with Rule 103 (a), Mont. R. Evid. He raised the issue for the
first time on appeal. As we have previousl-y held: "This
Court will not review a matter raised for the first time on
appeal." State v. Transgrud (1982), 200 Mont. 303, 308, 651
P.2d 37, 40.
Issue No. 6
Did the District Court err when it refused defendant's
Instruction No. 10, which stated that an unexplained fire is
presumed to be accidental?
Defendant Atlas' proposed Instruction No. 10 read: "You
are instructed that, ordinarily, it will be presumed that an
unexplained fire was caused by an accident or natural causes
or, at least, that it was not of criminal origin." Defendant
cited C.J.S. and Arn.Jur.2dr which collectively implied that
an unexplained fire is presumed to be accidental. Defendant
claimed that the burden is on the State to overcome such a
presumption, and that he was entitled to a specific instruc-
tion on that point.
The instruction was properly refused because it incor-
rectly states the law. The i-nstruction language is an
out-of-context summation of a larger discussion of arson in
6A C. J.S. $$§ 38 and 39. The full discussion reveals that the
statement only applies when no suspicious facts accompany the
fire. At the Atlas fire, investigators found a plastic jug
containing gasoline, several aerosol cans with holes punched
in the bottoms, massive thermal destruction, and burn pat-
terns indicating arson. Any presumption of a non-criminal
fire is rebuttable by such evidence of criminal design.
State v. Collins (Or. Ct. App. 1973), 511 P.2d 440, 442.
Therefore, the instruction was properly denied.
In conclusion, we note the exemplary conduct of the
trial judge during a long and complicated trial. In addi-
tion, all trial counsel held to the highest standards of
zealous advocacy. The issues raised by defendant, taken
singly or as a whole, are not substantial enough to overturn
defendant's conviction.
The jury verdicts are affirmed.
We concur:
Mr. Justice John C. Sheehy, concurring in the result:
The court committed two errors in this cause, the unduly
limited restriction on the cross-examination of the coroner,
and two, the admission of testimony about an extra-marital
affair.
The latter is the most serious. There is no rational
basis to assume without question that a man indulging in
extra-marital sex does not really love his wife. The
prejudicial effect of such testimony outweighed any probative
effect the evidence had, and should have been excluded.
The remaining evidence against the defendant is so
weighty that I would regard these two errors as not
significant. Therefore, I concur in the result.