State v. Cox

NO. 93-114
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
GARY ALLEN COX,
Defendant and Appellant.

APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
J. Mayo Ashley, Attorney at Law, Helena, Montana;
William F. Hooks, Appellate Defender's Office,
Helena, Montana

For Respondent:
Hon. Joseph P. Mazurek, Attorney General, John P.
Connor, Jr., Assistant Attorney General, Helena,
Montana, Pamela P. Collins, Assistant Attorney
General, Helena, Montana
Christopher Miller, Powell County Attorney,
Deer Lodge, Montana

Submitted on Briefs: June 24, 1994
Decided: August 9, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.

Appellant Gary Alan Cox (Cox) appeals the Third Judicial
District Court, Powell County, jury verdict convicting him of two
counts of kidnapping, pursuant to 9 45-5-302, MCA; burglary,
pursuant to 5 45-6-204, MCA; and five counts of deliberate homicide
pursuant to 5 45-5-102(1)(b), MCA, the felony murder rule. We
affirm.
The following issues are presented on appeal:
1. Did the District Court abuse its discretion when it denied
Cox's motion for an expert on prison conditions to assist with his
compulsion defense?
2. Did the District Court err when it concluded that Cox was
not denied due process when unmarked prison clothing was not
preserved after the riot?
3. Did the District Court abuse its discretion when it denied
Cox's motion to dismiss his felony murder charges?
4. Did the District Court abuse its discretion when it
admitted into evidence autopsy photographs of the five protective
custody victims?
A prison riot occurred at Montana State Prison on the morning
of September 22, 1991. The riot began in the Maximum Security Unit
(Unit) of the prison just after the morning exercise period when a
sergeant and four floor officers were returning three inmates from
exercise Yard Area number 5 to their cells. The Unit is a separate
building which housed sixty-eight inmates, including Cox, at the

2
time of the riot. The Unit consisted of six housing blocks
referred to by the letters A through F. Each Block consisted of

sixteen cells. Exercise Yard Area number 5 was part of the

interior open-air exercise area located within the confines of the

Unit. At both ends of the Unit there were control cages guarded by

officers who controlled "sally port" doors from the inside of these

cages. (The sally port doors are designed for added security so
that each door opens independently, allowing the first door to

close before the second one opens onto a Block.)

On the morning of the riot, the officer guarding the west or
"main" control cage opened the sally port doors to allow the three

inmates back from the exercise area onto C Block. The west control

cage guard testified that as he was opening the C Block doors, he

noticed that eight or nine inmates, including Cox, were running
through the door from the exercise yard and entering the Unit. The

inmates had gained access to this area due to the fact that the

chain link fence surrounding Yard 5, one of six interior open-air

exercise areas, had been 1'worked'8 by some of the inmates over a

period of time in order to weaken it and eventually allow them
access through it. In addition, the first sally port door which

led from Yard 5 into the building had not been immediately closed

before the second inside door opened onto C Block.

According to some members of the prison community, the riot

was not a spontaneous decision. The fact that the chain link fence

had been V8worked'9 indicates that at least some of the inmates were

alert to possible opportunities to take action--although specific

3
plans may not have been formulated. Although Cox testified that he
had not helped to "work I' the fence prior to the day of the riot, he
did admit to participating in a plan to V'cause a little ruckus,
tear some stuff up and draw attention to the conditions in Maximum
Security." Be also admitted to prying open the fence on the day of
the riot.
As the first inmates gained entrance into the Unit, one of the
inmates propped open the electronic door, leading from the corridor
to the inner door of the Unit, with a sand bucket used for
cigarette butts. This enabled more inmates to enter the building.
Some of the inmates attempted to enter the control cages. The two
guards at these control cages, fearing for their lives, eventually
exited through the escape hatches on the roof. The inmates
continued their attempts to gain access to the control cages which
contained the keys to the other cells. Although the control cages
were protected by plexiglass shields, some of the inmates burned
holes through the plexiglass of the east cage door and retrieved
the cell keys inside. Later, inmates also gained access to the
west cage. Eventually they were able to open all of the cell and
Block doors to release the other inmates.
During the riot, the ten inmates on D Block of the Unit were
particularly fearful because of their special status within the
prison system. These inmates had been designated "protective
custody" status due to the prison administration's determination
that they were in need of protection from other inmates for either
providing information to the prison administration on other

4
inmates, or because the types of crimes they had committed
characterized them as being at risk within the prison hierarchy.
These inmates were designated "close security" classification which
entailed more freedom than "maximum security" classification.
Because these inmates were cooperative within the prison system and
did not have to be handcuffed or restrained outside of their cells,
they were assigned special supervised tasks such as cleaning the
Unit and doing the laundry. They were allowed more material
privileges and possessions than the Maximum Security inmates, for
example, they were permitted to have canned sodas and were allowed
to wear khaki pants and shirts as distinguished from the Maximum
Security inmates who were forced to wear orange jumpsuits.
According to the prison warden, protective custody inmates
were housed in the same building as the Maximum Security inmates
because the building was equipped with security devices, and, other
than that building, there was no other viable option. The warden
testified that in most state prison systems there are separate
facilities for these inmates, but that the Montana prison system
lacked sufficient funding to accommodate such a facility.
During the course of the riot, as the inmates were overtaking
C Block, five stranded floor officers took refuge in lower C
Block's shower area which consisted of a three-by-five foot
cubicle. In order to further.secure themselves inside this one-
person shower area, they stuffed a water-soaked mattress in front
of themselves and locked the door with the shower padlock. The
mattress had become soaked by the automatic sprinkler system due to

5
fires started by the inmates. Eventually, all of the cell mates on
C Block were freed. The five officers had no other option than to
remain in this tiny shower throughout the course of the riot in

order to protect themselves.

While the five officers were taking refuge in the shower area,

two protective custody inmates, also fearing for their lives,

barricaded themselves in the west laundry room for protection from

the rioting maximum security inmates. The two protective custody

inmates did not expect to survive the riot. While barricaded

inside the laundry room, one of them wrote a list, on the clothes

dryer, of five names of maximum security inmates. These were the

names of the inmates who ware, allegedly, threats to the lives of

the two protective custody inmates. Cox's name was on that list.

As the riot continued, the prison administration attempted to

decipher the situation and develop a plan of action. The warden,

ultimately responsible for the decision about when to enter the

Unit, alerted the Disturbance Control Team, which consisted of

specially trained correctional officers. At approximately 2:00

p.m., they entered the Unit through the escape hatches on the roof

since the doors to the Unit were barricaded. They came out into

the west end of the Unit, and regained control of the Unit one

Block at a time, beginning with C Block. After retaking Blocks C,

B, and A, the captain encountered a protective custody inmate who

informed him that his friends in D Block were being murdered. The

captain and another officer searched D Block and found the bodies

of five protective custody inmates. They also found another inmate

6
who was still alive but whose throat had been slit. After securing
D Block, the captain posted an officer at D Block to prevent

tampering or destruction of evidence at the crime scene, and

alerted the Criminal Investigation Bureau of the Department of

Justice about the victims in D Block.

Because of the destruction done to the Unit, the inmates

were moved to another area of the prison for several weeks. That

afternoon, agents from the Criminal Investigation Bureau went

through the Unit and collected evidence, and then notified the

State Crime Lab in Missoula which, in turn, sent investigators.

Autopsies were performed on the five deceased inmates, and it was
determined that the causes of death were either multiple blunt

force traumas to the head, ligature strangulations, incise wounds
to the necks, or combinations thereof.

The riot lasted approximately four hours. Other than the two

officers who escaped onto the roof, the five officers locked in the

one-person shower in C Block, were the only correctional officers

in the Unit who witnessed the events of those four hours. Several

maximum security inmates, including Cox, were eventually charged

and convicted for their roles in the riot of September 22, 1991.

Did the District Court abuse its discretion when it denied

Cox's motion for an expert on prison conditions to assist with his

compulsion defense?

Trial courts have broad discretion to determine the relevancy

of evidence. We will not overturn this determination unless the
District Court abused its discretion. state v. Hall (1990), 244
Mont. 161, 169, 791 P.2d 183, 188.
Section 45-2-212, MCA, states that in order to prove the
defense of compulsion, the defendant must prove that the compulsion
to perform the offensive conduct was caused by a threat or menace
of imminent infliction of death or serious bodily harm. State v.
Owens (1979), 182 Mont. 338, 347, 597 P.2d 72, 77. The defendant
must also prove that his belief that death or bodily harm would be
inflicted was a reasonable belief. Section 45-2-212, MCA.
cox, in support of his defense of compulsion, moved to hire a
an expert on prison conditions. Cox also joined an existing
motion, made by another defendant, for a mob psychology expert to
assist with his defense. In addition, Cox requested a separate
private investigator to clarify any potential conflict among the
defendants and witnesses testifying at trial. Ultimately, the
District Court, in its July 14, 1992 order allowed Cox's request
for a separate private investigator, but denied Cox's motion for a
prison conditions expert on the grounds, as set out in an earlier
June 12, 1992 order, that the defense of compulsion imposes an
objective standard rather than a subjective one and, therefore, any
analysis of the effect of prison conditions on Cox's state of mind
would be irrelevant to the defense of compulsion. Accordingly,
since Cox had indicated that the mob psychology expert would be of
no value without the other two experts, the District Court also
denied Cox's motion for that expert.
The compulsion defense merges the common law defenses of

8
necessity, justification, compulsion, duress and "choice of two
evils." City of Missoula v. Asbury (Mont. 1994), 873 P.2d 936,
938, 51 St.Rep. 383, 384, 873 P.2d 936, 938; citing State v.
Ottwell (1989), 240 Mont. 376, 379, 784 P.2d 402, 404. Other state
courts, such as the Wyoming Supreme Court, when considering the
"reasonable fear" element of the defense theories of duress and
coercion, have held that expert testimony on the effect of prison
conditions on the defendant's state of mind would be irrelevant to
those defenses. Amin v. State (Wyo. 1991), 811 P.2d 255, 260. In
Amin two inmates who were charged with kidnapping and aggravated
-I
assault and battery of state prison counselors, attempted to defend
themselves by using the theories of duress and coercion. &,&, 811
P.2d at 260. The Wyoming Court held that these defendants were not
entitled to present a physician/psychiatrist's conclusion that
prison conditions caused them to commit certain acts in an attempt
to save their lives. Amin 811 P.2d at 259.
-, We find this holding
compelling and supportive of our decision here to affirm the
District Court's denial of Cox's motion for a prison conditions
expert to testify about Cox's subjective state of mind at the time
of the riot. Accordingly, we hold that Cox's Sixth Amendment right
to present a compulsion defense was not violated by the District

Court's denial of his motions for additional experts because the
testimony of such experts would be irrelevant to the compulsion
defense.
Cox also contends that the testimony of the prison conditions
expert would have benefitted his defense theory of mental disease

9
or defect. The District Court, however, is required only to
appoint one qualified psychiatrist or licensed clinical
psychologist when mental disease or defect is at issue. Section
46-14-202(l), MCA. The District Court, in denying Cox's motion,
stated that a psychiatrist had already been appointed to determine
Cox's mental state, including his ability to form the requisite
mental state for the crime of burglary--the underlying crime of
Coxls felony murder charges. We hold that the District Court did
not abuse its discretion in denying Cox's request to present
evidence of a prison conditions expert's testimony at trial.
II
Did the District Court err when it concluded that Cox was not
denied due process when unmarked prison clothing was not preserved
after the riot?
Cox contends that the District Court violated his due process
rights when it failed to preserve alleged exculpatory evidence.
Cox argues that, had the clothing he had worn during the riot been
preserved, lack of victims f blood on his clothing would have proven
that Cox had not been involved in the struggles with the protective
custody victims.
We considered this same issue in the companion case of State
v. Gollehon (1993), 262 Mont. 293, 304, 864 P.2d 1257, 1264, and
held that it is well settled that, although a criminal defendant
has a right to obtain exculpatory evidence, police officers are not
required to procure evidence on behalf of a defendant. State v.
Sadowski (1991), 247 Mont. 63, 79, 805 P.2d 537, 546. In order for

10
a defendant to be successful in a claim of per se violation of due
process, that defendant must prove that the exculpatory evidence
was deliberately or intentionally suppressed. Sadowski, 805 P.2d
at 547. In addition, the defendant must prove that the suppressed
material possessed an actual exculpatory value that was apparent
before the destruction. State v. Halter (1989), 238 Mont. 408,
412, 777 P.2d 1313, 1316; auotinq California v. Trombetta (1984),
467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422.
Here, there is no indication that any clothing was "apparently
exculpatory" and intentionally destroyed in an effort to suppress
evidence. In the aftermath of the riot, the inmates were ordered
to strip in the event that any concealed weapons were in their
possession. The prison administration was not yet convinced that
the situation was under control. Given the circumstances, it was
not unusual for clothing to be misplaced or destroyed during the
chaos. The main priority was to prevent further violence. There
is no evidence that any clothing was intentionally destroyed.
Finally, even if Cox could have secured his clothing and
proven that there was no trace of victims ' blood on his clothing,
he would not have been exculpated for the murders of the protective
custody inmates since he was being charged pursuant to § 45-5-

102 (1) (b) r MCA, the "felony-murder" rule.
Cox was charged with deliberate homicide because he was found
by the jury to be legally accountable for the commission of
burglary and, during that burglary, he, or another person legally
accountable for that burglary, caused the death of other human

11
beings. Section 45-5-102(1)(b), MCA. Proof that Cox actually

committed the physical act that resulted in the death of any of the

protective custody inmates is not required. Therefore, the lack of

blood on Cox's clothing, if indeed it could have been proven, would

not have been exculpatory evidence under § 45-5-102(1)(b), MCA. As

in Gollehon, we conclude that the destruction of Cox's clothing

does not constitute deliberate suppression of valuable exculpatory

evidence. Accordingly, Cox was not deprived of his constitutional

right to due process.
III

Did the District Court abuse its discretion when it denied

Cox's motion to dismiss his felony murder charges?
This Court will only disturb the District Court's ruling on a

motion to dismiss upon a determination of an abuse of discretion.

State v. Hedrick (1987), 229 Mont. 145, 150, 745 P.2d 355, 358.

Cox contends that no causal connection existed between his

burglary charge and the five homicides because the evidence did not

indicate that he or the other maximum security inmates actually

planned to kill any protective custody inmates. Intent to kill is

not a prerequisite to being convicted under the felony murder rule.

In fact, the purpose of the felony murder rule is to ensure that

people who engage in dangerous acts likely to result in death are

held responsible for any resulting deaths, whether or not the acts

were planned or premeditated. State v. Nichols (1987), 225 Mont.

438, 449, 734 P.2d 170, 176. The felony murder rule creates an

alternate means of holding one responsible for reckless actions

12
likely to result in death. The only causal connection required is
that the death actually occurred during the underlying felony or
the flight thereafter. Section 45-5-102(1)(b), MCA. Here, the
five deaths occurred during the underlying burglary offense.
Cox was charged with burglary pursuant to 5 45-6-204, MCA.
According to that statute, a conviction is upheld if a person
"knowingly enters or remains unlawfully in an occupied structure
with the purpose to commit an offense therein." Section 45-6-204,
MCA. When Cox knowingly entered and remained in Block D without
permission or supervision, he was "entering and remaining
unlawfully" as defined in 5 45-6-201, MCA, which states that 'Ia
person enters or remains unlawfully in or upon any . . . occupied
structure, or premises when he is not licensed, invited, or
otherwise privileged to do so." Section 45-2-101(40), MCA, defines
"occupied structurel' as "any building . . . suitable for human
occupancy or night lodging of persons . . . .'I Accordingly, the
various Blocks of the prison are defined as "occupied structures."
Gollehon, 864 P.2d at 1260-61.
As for the requirement, pursuant to 5 45-6-204, MCA, that the
defendant possess the l'purpose to commit an offense therein," we
conclude that Cox did possess such an intent. An V'offense'l is
defined as any felony or misdemeanor. Section 45-2-101(42), MCA.
Cox was charged, by information, with the offense of riot. Section
45-8-103(l), MCA, states, in relevant part, that a person Commits

the offense of riot when he purposely and knowingly engages in an
act of violence or threat to commit an act of violence as part of

13
an assemblage of five or more persons, which act or threat presents
a clear and present danger of or results in damage to property or
injury to persons.
Cox had the intent to participate in the riot from the moment
he entered the Unit. He himself testified, "1 thought, yea, I
thought the conditions in Max were bad enough that I would
participate . . . and play my part in the riot . . . and face the
consequences for it."
Cox admitted that he made a conscious choice to enter D Block,
and did so knowingly. According to his testimony, he entered with
"maybe as many as twenty-five or thirty people." These "twenty-
five or thirty" inmates, according to Cox, possessed "all manner
of" weapons. cox, carrying a "stick" as a weapon, "barged" into D
Block with these other rioting inmates. These actions certainly
constituted an "act of violence or threat to commit an act of
violence as part of an assemblage of five or more persons,"
pursuant to § 45-8-103(l), MCA. The outcome was the destruction of

property, injury to persons, and five deaths.
Furthermore, Cox agreed that he himself created the "fear
element" on D Block which caused the protective custody inmates to
arm themselves in self-defense. He also admitted that it would not
have surprised him if the protective custody inmates on D Block got
"messed up or beat up a little bit."
We conclude that Cox committed the offense of burglary with
intent to commit riot. Within the course of the riot, five
protective custody inmates were murdered. Therefore, the

14
requisite causal connection existed between the commission of the

underlying burglary offense and the murders of the five protective
custody inmates. Accordingly, we hold that the District Court did

not abuse its discretion when it denied Cox's motion to dismiss his

felony murder charges.

IV

Did the District Court abuse its discretion when it admitted

into evidence autopsy photographs of the five protective custody

victims?
Cox contends that he was unfairly prejudiced when the State

introduced twenty-one autopsy photographs, taken by the medical

examiner, of the five protective custody victims. We addressed

this identical issue as it related to the same set of photographs

in the companion case of Gollehon, 864 P.2d at 1262-63. In that
case, the argument was raised by defendant Gollehon and rejected by
this Court.

When reviewing a trial court's evidentiary ruling, we will

not overturn that trial court's determination of relevance or

admissibility absent a showing of an abuse of discretion. State v.

Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054. When

considering whether specific photographs should be admitted into

evidence at trial, the trial court must weigh the probative value

against the danger of unfair prejudice, and admit the evidence

unless the danger of unfair prejudice substantially outweighs the
probative value. Rule 403, M.R.Evid.

Cox contends that the photographs lacked probative value since

15
they did not provide the jury with any additional information or

clarify any disputes. He argues that no disputes existed as to the

identities of the victims, the nature or locations of the injuries,

or the causes of death, and, therefore, the photographs lacked

probative value. We disagree.

Here, as in Gollehon, the State contends that the selected

photographs corroborated much of the inmates' testimony concerning

Cox's actions and the actions of other maximum security prisoners

during the riot. Gollehon, 864 P.2d at 1263. We conclude that the
corroborative value of the photographs is indicative of their

probative value. We have previously upheld the admissibility of

photographs which accurately represented the victim's appearance at

the autopsy and which were reasonably necessary to depict the

multiplicity and extent of the injuries. State v. Powers (i982),

198 Mont. 289, 294, 645 P.2d 1357, 1360. We conclude that the

photographs of the protective custody victims were accurate and

reasonably necessary to depict the multiple wounds of the victims.

cox also contends that the brutality depicted in the

photographs unduly prejudiced the jury. We reiterate our

conclusion in Gollehon, in which we cited 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." Here, as in Gollehon, the State's

method of selecting and displaying the photographs was

intentionally designed to demonstrate the injuries while being as
uninflammatory as possible. The medical examiner testified that,

16
 August 9, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

J. Mayo Ashley
Attorney at Law
222 Broadway
Helena, MT 59601

William F. Hooks
Appellate Defender
P. 0. Box 200145, Capitol Station
Helena, MT 59620-0145

Hon. Joseph P. Mamrek, Attorney GeneraI
John P. Connor, Jr., Assistant
215 N. Sanders, Justice Bldg.
Helena, MT 59620

Christopher Miller
County Attorney
Powell County Courthouse
Deer Lodge, MT 59722

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA