N O . 93-066
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WILLIAM JAY GOLLEHON,
Defendant and Appellant.
APPEAL FROM: District^
_
Court of the Third Judicial District,
In ana for the County of Powell,
The Honorable Ted L. Mizner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Byron Boggs, Attorney at Law, Missoula,
Montana: William F. Hooks, Appellate
Defender, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John P. Connor, Jr., Assistant Attorney
General, Helena, Montana
1
' Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant William Jay Gollehon was charged in the District
Court for the Third Judicial District in Powell County with two
counts of kidnapping by accountability, one count of burglary, and
five counts of deliberate homicide. Following a seven-day jury
trial in Bozeman, Montana, Gollehon was convicted of all charges
and was subsequently sentenced by the District Court. Gollehon
appeals from his convictions. We affirm the judgment of the
District Court.
The following issues are presented on appeal:
1. Did the District Court err when it denied defendant's
motion to dismiss the charge of burglary?
2. Did the District Court err when it denied defendant's
motion to dismiss the five counts of deliberate homicide?
3. Did the District Court abuse its discretion when it
admitted into evidence autopsy photographs of the victims?
4. Did the District Court err when it denied defendant's
motion for mistrial on the basis of juror misconduct?
5. Did the State's destruction of certain physical evidence
deny defendant his constitutional right to due process of law?
On the morning of September 22, 1991, William Jay Gollehon and
eight other Montana State Prison inmates gained access to, and took
control of, the maximum security unit of the prison. When officers
regained control of the building four hours later, five protective
2
custody inmates had died as a result of the riot that Gollehon and
others participated in.
The maximum security building is divided into two separate
areas. "A Block," "B Block," and "C Block" are located on the west
side of the building. "D Block," "E Block," and "F Block" are
located on the east side. Control cages are located on each side
of the building. The west control cage regulates the power to A,
B, and C Blocks, and the east control cage regulates the power to
D, E, and F Blocks. Centered between the two units of the building
are six separate exercise yards. At the time of the riot, there
were ten protective custody inmates housed on D Block, and a total
of 68 inmates in the maximum security building. Gollehon was one
of the maximum security inmates housed on C Block.
During the morning of September 22, 1991, thirteen inmates,
including Gollehon, were in the exercise yards. While officers
were returning some of the inmates from the exercise yards to their
cells, Gollehon and eight other inmates broke through the wire
fences separating the exercise areas and eventually gained access
to the section of the maximum security building leading to A, B,
and C Blocks. Once inside the building, the inmates were able to
reach both control cages and ultimately were able to open the doors
to all of the blocks in the maximum security unit.
While the inmates had control of the building, five officers
took refuge by locking themselves in a shower facility in C Block.
The inmates threatened to burn the officers out of the shower if
3
they did not release keys to other sections of the building. The
officers complied, and then heard the inmates say they were going
to go to D Block and "get'l the protective custody inmates. The
officers remained in the shower until they were released by other
officers after the riot.
Two protective custody inmates who were working outside their
cells took refuge by barricading themselves in the laundry room.
The rioting inmates, including Gollehon, tried unsuccessfully to
break down the door and to smoke them out of the laundry room by
starting a fire. At one point, not expecting to survive the
attack, one of the inmates wrote the names of the inmates who were
trying to get at them on the side of the dryer. Gollehon's name
was included. Unable to get at the inmates in the laundry room,
the rioting inmates entered D Block, opened the cells, and
proceeded to kill five of the protective custody inmates.
On February 3, 1992, Gollehon was charged in an eight count
information with two counts of kidnapping by accountability in
violation of 55 45-2-302 and 45-5-302, MCAi one count of burglary
in violation of 5 45-6-204, MCA; and five counts of deliberate
homicide in violation of § 45-5-102(1)(b), MCA.
Gollehon filed motions to dismiss the burglary and homicide
charges on the grounds that the burglary statute was not applicable
to the facts of the case and that the homicide counts, based on the
felony murder theory, would, therefore, necessarily fall. This
motion was denied.
4
He also filed a motion to produce various items of physical
evidence, including the clothing that he was wearing at the time of
the alleged offenses and the clothing of the other inmates of the
maximum security unit. That motion was denied for the reason that
the State had destroyed the clothing and much of the personal
property of the inmates after the riot.
Gollehon was convicted of all charges following a jury trial.
He was sentenced to 10 years imprisonment on each count of
kidnapping, and 20 years on the count of burglary, all of which
were to run consecutively. He was sentenced to five concurrent
terms of life imprisonment on the deliberate homicide convictions,
to run consecutively with the sentences imposed for kidnapping and
burglary, and the sentences already being served for prior
offenses. From this judgment, Gollehon appeals.
Did the District Court err when it denied defendant's motion
to dismiss the charge of burglary?
The burglary charge was based on the allegation that Gollehon
had "knowingly entered or remained unlawfully in an occupied
structure, the D block area of the maximum security unit, with the
purpose to commit an offense therein, namely, Riot." Section
45-2-101(40), MCA, defines occupied structure as follows:
"Occupied structure" means any building, vehicle, or
other place suitable for human occupancy or night lodging
of persons or for carrying on business, whether or not a
person is actually present. Each unit of a buildinq
consistinq of two or more units senaratelv secured or
5
occuvied is a sevarate occupied structure. [Emphasis
added].
Gollehon contends that the court should have dismissed the
burglary charge on the basis that the definition of occupied
structure is inapplicable to his unauthorized entry into D Block.
He asserts that the maximum security unit is one single building,
and that no sections of the building constitute a separate occupied
structure apart from the remainder of the unit. As a matter of
law, he contends that he could not be charged with burglary for
entering D Block during the September 1991 riot.
When reviewing a trial court's interpretation of the law, the
standard of review employed by this Court is whether the court
correctly interpreted the law. Steer, Inc. v. Deparmtent of Revenue ( 1990) ,
245 Mont. 470, 803 P.2d 601. In this instance, the court concluded
that the burglary statute was applicable because the definition of
"occupied structure" encompassed the D Block of the maximum
security unit. After considering the express language of the
statute in question, and the circumstances of this case, we
conclude that the court correctly interpreted the statute and did
not err when it denied Gollehon's motion to dismiss the burglary
charge.
The language used in C, 45-Z-101(40), MCA, defining occupied
structure is plain and unambiguous. It clearly states that each
unit of a building which consists of two or more separately secured
units is a separate occupied structure. The maximum security unit
6
is a building consisting of several "blocks" which are physically
distinct and are separately secured. Moreover, each block consists
of separately secured cells which are intended for human occupancy.
The plain language of the statute clearly contemplates that a
burglary can occur within parts of a building when one unlawfully
enters or remains within a separately secured unit within that
building. The unauthorized entry by Gollehon and the other rioting
inmates into D Block of the maximum security unit fits squarely
within the burglary statute. When statutory language is plain,
unambiguous, direct, and certain, a court cannot apply any other
means of interpretation. whitev. white (1981), 195 Mont. 470, 636
P.2d 844.
Gollehon claims that this interpretation of the statute is
contrary to the provisions of § 45-1-102(1)(c), MCA, which requires
that the definition of an offense provides "fair warning of the
nature of the conduct declared to constitute an offense." He notes
that the Powell County District Court records reveal that no
prisoner has ever been charged with burglary for unauthorized entry
into another area of the prison, but here, without fair warning
that he could be charged in this manner, he stands convicted of
five counts of homicide by virtue of the State's unprecedented
application of the burglary statute. He contends that the burglary
statute does not state that it specifically applies to prisons and
that if the Legislature intended it to apply to the State Prison it
could have expressly so stated. Without such a statement, he
asserts the inference must be drawn that such an application of the
statute was not intended.
Montana's burglary statute does not enumerate specific
structures or types of buildings to which it applies. Rather, the
statute refers to an "occupied structure" which, in turn, is
generally defined. Because the statute is general in nature, it is
inconsistent to suggest that a structure satisfying the definition
of an occupied structure cannot be the site of a burglary unless it
is specifically enumerated. Even though no prisoners have
previously been charged with burglary for conduct occurring within
the prison, the language of the statute is clear and provides fair
notice to all persons of conduct which constitutes the criminal
offense of burglary.
Gollehon also argues that the prison handbook, which describes
internal institutional rules, does not warn inmates that an
inmate's presence in an unauthorized area of the prison could
result in a charge of burglary in district court. The prison's
orientation handbook does not serve as an exclusive list of
offenses for which an inmate can be charged in court. The prison
handbook warns inmates to follow all "city, county, state, and
federal laws," and the internal disciplinary procedures established
by the prison do not exempt inmates from compliance with the laws
of the State of Montana.
8
Gollehon urges this Court to reject the application of the
burglary statute to this situation due to the unique circumstances
which exist in a prison. Because prisoners are required to be in
certain authorized areas only and are not allowed the same
liberties that the general population enjoys, he contends that
different concepts must be employed when an inmate ventures into
unauthorized areas of the prison.
The law provides that a person is liable for burglary only
when he or she unlawfully enters an occupied structure with the
purnose to commit an offense therein. Section 45-6-204(l), MCA.
The fact that an inmate may be in an unauthorized area of the
prison does not, by itself, constitute a burglary. However, if he
or she enters that area for the purpose of committing an offense,
an inmate should be as liable as anyone else for the consequences
of that act. Although this Court has not previously addressed
burglary in the context of a correctional facility, our decision is
consistent with the holding in People v.prinsre (N.Y. App. Div. 1983),
465 N.Y.S.2d 742, in which a New York court addressed a similar
situation. After considering language in the burglary statute
defining "building" as a structure consisting of "two or more units
separately secured or occupied," that court held that a nurse's
station within a prison was a "building" for purposes of the
burglary statute. The factor deemed decisive was that the nurse's
station was an independent unit within the prison building with its
9
own secure entrance. Ptingle, 465 N.Y.S.2d. at 743. Here, D Block
is similarly an independent area of the maximum security unit which
is separately secured. Because Gollehon entered that area for the
purpose of committing an offense, we conclude that he is
appropriately chargeable with burglary.
We hold that the District Court correctly concluded that
Gollehon could be charged with burglary for his unauthorized entry
into D Block during the September 1991 riot.
II.
Did the District Court err when it denied defendant's motion
to dismiss the five counts of deliberate homicide?
As a result of the deaths which occurred during the riot,
Gollehon was charged with five counts of deliberate homicide
pursuant to 5 45-5-102(1)(b), MCA, which is Montana's
"felony-murder rule." That statute provides, in relevant part,
that a person commits the offense of deliberate homicide if, during
the course of the commission of burglary, "he or any person legally
accountable for the crime causes the death of another human being."
Gollehon contends that the court should have dismissed the
homicide charges because he was improperly charged with burglary,
and therefore, there was no underlying felony upon which to base
the homicide charges. Since we have held that the burglary charge
was proper, we conclude that this argument is without merit.
10
The District Court did not err when it denied the motion to
dismiss the deliberate homicide charges.
III.
Did the District Court abuse its discretion when it admitted
into evidence autopsy photographs of the victims?
During the trial, the State introduced 20 color photographs
taken by the medical examiner during the autopsies of the five
victims. Gollehon contends that the court abused its discretion
when it admitted these graphic photographs into evidence because
their prejudicial effect far outweighed any probative value. It is
his contention that the photographs had little probative value
because there was no dispute that the homicides had occurred, nor
was there a dispute about the identity of the victims, the position
of their bodies, or the nature or location of the injuries or
causes of death.
The standard of review of evidentiary rulings is whether the
district court abused its discretion. .%atev.ctit (1992), 253 Mont.
442, 833 P.2d 1052. The court has broad discretion to determine
whether or not evidence is relevant and admissible, and absent a
showing of an abuse of discretion, the trial court's determination
will not be overturned. crist, 833 P.2d at 1054.
When considering whether photographs should be admitted as
evidence at trial, the court must determine whether their probative
value is substantially outweighed by the danger of unfair
11
prejudice. Rule 403, M.R.Evid.; .%te!J.Heny (1990), 241 Mont. 524,
788 P.2d 316. Here, the State contends that the photographs were
offered to prove the means by which the victims were killed and to
corroborate the testimony of other inmates who described what they
heard or saw occurring in D Block. Although the photographs were
very graphic depictions of the assaults committed against the
victims, the State notes that they were only exhibited during the
State Medical Examiner's testimony and the jury was not allowed to
take these photographs into deliberations.
In this instance, the court concluded that the probative value
of the photographs was not outweighed by the danger of unfair
prejudice. After considering the evidence in question, we are
aware that the photographs depict the brutality and viciousness of
the crimes committed. However, we do not believe that they would
have aroused the jurors' passions any more than other evidence of
Gollehon's conduct. As we stated in state v. Doll (1985), 214 Mont.
390, 400, 692 P.2d 473, 478, "[w]e will not demand that a trial be
sanitized to the point that important and probative evidence must
be excluded." We, therefore, hold that the District Court did not
abuse its discretion when it admitted the autopsy photographs into
evidence.
IV.
Did the District Court err when it denied defendant's motion
for mistrial on the basis of juror misconduct?
12
In the course of the trial of this matter, a brief
conversation occurred among one, or possibly two, jurors and a
correctional officer who was providing security at the courthouse
and who had testified earlier in the trial. After the presiding
judge was notified of the conversation, Gollehon moved for a
mistrial due to juror misconduct. The officer was questioned in
chambers and he testified that the conversation concerned the
Montana State University football team. He stated that the
conversation occurred when two persons were waiting outside the
courtroom near his security post, and that he did not realize they
were members of the jury. Based on this testimony, Gollehon's
motion was denied.
On appeal, Gollehon contends that the court improperly denied
this motion, and that it erred by not examining the jurors in
addition to the security guard. He asserts that the discussion
among the jurors and a witness constituted juror misconduct which
gives rise to a presumption of prejudice to Gollehon. The burden
is then on the State to rebut this presumption, and testimony of
the juror(s) is the appropriate method to determine if prejudice
resulted. Here, because the State did not examine the jurors, he
contends there was no evidence to rebut the presumption of
prejudice and the court improperly denied his motion.
The standard of review for reversing a lower court's denial of
a motion for mistrial requires clear and convincing evidence that
13
the trial court's ruling was erroneous. State v. Gambrel (1990), 246
Mont. 84, 803 P.2d 1071; state%salOiY (1988), 235 Mont. 276, 766 P.2d
1306. Because the trial court is in the best position to observe
the jurors and determine the potential for prejudice when
allegations of jury misconduct are raised, the court has
significant latitude when ruling on these matters, and its
determination is given considerable weight by this Court. State v.
Eagen (1978), 178 Mont. 67, 582 P.2d 1195.
Citing this Court's holding in Eagen where we stated that jury
misconduct tending to injure the defendant creates a rebuttable
presumption of prejudice, Gollehon contends that a presumption of
prejudice remains in this case because the State failed to examine
the jurors and relied only on the testimony of the security guard.
However, we have recently made clear that the burden of rebutting
a presumption of prejudice shifts to the State "only after there
has been a threshold showing of misconduct which injures or prejudices
the defendant." Statev.McNatt (1993), 257 Mont. 468, 472, 849 P.2d
1050, 1052-53. In this instance, we find no initial showing that
the conversation resulted in prejudice against Gollehon. The
conversation was a brief, casual interchange right outside the
courtroom doors, and these circumstances do not suggest a degree of
impropriety which would have warranted examining those jurors or
declaring a mistrial. The District Court was in the best position
14
to evaluate the incident, and in the absence of a showing of
prejudice, we will defer to the court's determination that the
alleged jury misconduct did not entitle Gollehon to a mistrial. We
conclude that the court's denial of the motion for mistrial was not
clearly erroneous.
V.
Did the State's destruction of certain physical evidence deny
defendant his constitutional right to due process of law?
When prison officials regained control of the maximum security
unit on September 22, 1991, all of the inmates who had participated
in the riot were required to strip and immediately leave the
building. Prior to trial, Gollehon's counsel requested that
certain items of physical evidence, including the clothing worn by
the maximum security inmates, be produced for inspection. The
State responded to this discovery request by stating that the
inmates' clothing had been destroyed after the riot. The State
noted that, contrary to defense counsel's understanding, clothing
issued to maximum security inmates had no identifying marks which
would allow it to be traced to any particular inmate.
On appeal, Gollehon asserts that he was denied a fair trial
because the State failed to produce what could have been powerful
exculpatory evidence for his defense. It is his contention that
the absence of blood on his clothing would have established that he
had not engaged in the struggles with the inmates who were killed
15
and that the State's destruction of this evidence resulted in
substantial prejudice to him.
The State first argues that Gollehon failed to properly raise
this issue at the trial court level because no motion to dismiss
was made. Therefore, the State asserts that this issue is waived
on appeal. After considering the circumstances of this case,
however, and the fact that rulings in regard to the production of
this evidence were made during the trials of the other rioting
inmates, we conclude that Gollehon's motion in limine sufficiently
preserved the issue for consideration by this Court.
However, after reviewing the record, we do not find that the
destruction of the inmates' clothing provides a basis for reversing
Gollehon's conviction. This Court has made clear that a criminal
defendant has a right to obtain exculpatory evidence, but his right
is personal and does not require that police officers take
initiative or even assist in procuring evidence on behalf of a
defendant. Statev.Sadowski (1991), 247 Mont. 63, 79, 805 P.2d 537,
546. Although the denial of one's right to obtain exculpatory
evidence is a violation of due process, a defendant must show a
deliberate or intentional suppression of exculpatory evidence in
order to claim a per se violation of due process. Sadowski , 805 P.2d
at 547. Furthermore, there must be a showing that the evidence in
question meets the test for constitutional materiality as adopted
in Statev.Halter (1989), 238 Mont. 408, 777 P.2d 1313:
16
Whatever the duty the Constitution imposes on the State
to preserve evidence, that duty must be limited to those
that might be expected to play a significant role in the
suspect's defense. To meet this standard of constitu-
tional materiality . . . evidence must both possess an
exculpatory value that was apparent before the evidence
was destroyed, and be of such a nature that the defendant
would be unable to obtain comparable evidence by other
reasonably available means.
Halter, 777 P.2d at 1316 (quoting Califomiav. Trombetta (1984), 467 U.S.
479, 488-89, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422).
In this instance, there is no showing that the clothing was
destroyed with the knowledge of its potential exculpatory value or
with the intent of deliberately suppressing valuable evidence. It
is clear that the objective of ordering the inmates to strip was to
get the unit under control and to restrain the rioting inmates from
further violence. Even if Gollehon had been able to establish the
absence of blood on his clothing, this would not necessarily have
vitiated his accountability for the deaths of the inmates during
the riot according to the statute with which he was charged.
We conclude that the destruction of the clothing does not
constitute a deliberate suppression of valuable exculpatory
evidence and Gollehon was, therefore, not constitutionally deprived
of his right to due process.
The judgment of the District Court is affirmed.
J tice
17
We concur:
18