NO. 93-368
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
TERRY ALLEN LANGFORD,
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:
William F. Hooks, Appellate Defender, Helena,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Asslt Attorney General,
Helena, Montana
Christopher Miller, Powell County Attorney,
Deer Lodge, Montana
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Submitted on Briefs: August 18, 1994
OGT 04 1994
Justice John Conway Harrison delivered the Opinion of the Court.
Terry Allen Langford (Langford) appeals from a jury verdict in
the District Court for the Third Judicial District, Powell County,
convicting him of burglary and deliberate homicide. We affirm.
The following issues are presented on appeal:
1. Did the District Court violate Langford's right to
represent himself at trial?
2. Did the District Court err by admitting evidence of a
shooting incident which occurred when officers were retaking the
maximum security unit of the Montana State Prison?
3. Did the District Court err when Judge Mizner refused to
recuse himself?
4. Did the District Court abuse its discretion when it
admitted into evidence autopsy photographs of the five inmate
victims?
On the morning of September 22, 1991, nine maximum security
inmates at the Montana State Prison gained control of the maximum
security unit of the prison. These prisoners were able to release
the other maximum security prisoners. When officers regained
control of the building approximately five hours later, they
discovered that five protective custody inmates had been killed in
the riot, and others severely beaten.
The maximum security unit of the Montana State Prison is
divided into six blocks with two central control cages. "A Block,"
"B Block," and "C Block" are located on the west side of the
building along with the main control cage which controls operations
for A, B, and C Blocks. "D Block," "E Block," and "F Block" are
located on the east side of the building along with the satellite
control cage which controls operations for D, E, and F Blocks. Six
exercise yards are located in the center of the maximum security
unit between Blocks A, B, C and Blocks D, E, and F. At the time of
the riot, there were 68 inmates in the maximum security unit. Ten
protective custody inmates were located on D Block, and Langford
was housed on B Block.
On the morning of September 22, 1991, thirteen inmates were
using the exercise yards. Officers escorted three of these inmates
from exercise yard five to C Block. Nine of the remaining inmates
broke through the wire fences separating the exercise yards and
entered yard five. From there, they ran through an open door into
the west side of the maximum security unit. Once inside the
building, the prisoners attacked the main control cage on the west
side of the building. Approximately 45 minutes later, the inmates
gained access to the satellite control cage on the east side of the
building by burning a hole in the bulletproof glass. Once inside
that cage, they obtained keys that opened the main control cage.
The inmates then began opening cell doors and releasing other
maximum security prisoners.
Some maximum security prisoners made their way onto D Block
where they attacked the protective custody inmates. Five
protective custody inmates were killed in the riot, and others were
severely beaten.
The prison's Disturbance Control Team entered the maximum
security unit and regained control of the unit at approximately 2
p.m. the same day. Officer Robert Geach (Geach), a member of the
team, entered C and 3 Blocks while securing the unit. Geach
testified that when he was on B Block he ordered the prisoners to
strip and get on the ground as a precautionary measure against
hidden weapons. Geach testified that Langford neither stripped nor
went to the ground when commanded to do so. ~ccordingto Geach,
Langford made a move towards him and Geach then fired a warning
shot into the door next to Langford. After the shot, Langford
complied with Geach's commands.
On February 3, 1992, Langford was charged by information with
one count of burglary in violation of § 45-6-204, MCA; and five
counts of deliberate homicide in violation of 5 45-5-102 (1)(b) ,
MCA .
In pre-trial motions, Langford moved the court for new
counsel. Instead, the court appointed co-counsel. Langford later
requested that he be allowed to represent himself. The court
denied this request, Langford also made a motion in limine to
exclude any evidence of the shooting incident, and moved the court
for a substitute judge. The court denied these motions.
Following a jury trial, Langford was convicted of burglary and
one count of deliberate homicide. He was sentenced to 20 years in
prison on the count of burglary and life imprisonment on the count
of deliberate homicide. The sentences were to run concurrently to
each other and consecutively to the sentences Langford was already
serving.
I
Did the District Court violate Langfordls right to represent
himself?
At a pre-trial hearing held November 12, 1992, Langford
informed the court that he wished to "fire" his appointed counsel,
and represent himself. He also informed the court that he was
seeking out-of-state counsel to represent him. The court did not
allow Langford to represent himself, and continued the
representation of Langford's two court appointed attorneys.
Langford asserts that the court violated his right to represent
himself.
The right to assistance of counsel is embodied in the Sixth
Amendment of the U:nited States Constitution and Article 11, Section
24 of the Montana Constitution. The Sixth Amendment has been
interpreted to include a defendant's right to represent himself.
Faretta v. California (1975), 422 U.S. 806, 95 s.c~.2525, 45
L.Ed.2d 562. This Court has interpreted Article 11, Section 24 of
the Montana Constitution to provide the right of the defendant to
proceed pro se. State v. Colt (1992), 255 Mont. 399, 403, 843 P.2d
747, 749.
Under Montana statute, a defendant may waive the right to
counsel when the court ascertains that the waiver is made
knowingly, voluntarily, and intelligently. Section 46-8-102, MCA
(1991). The Ninth Circuit Court of Appeals utilizes the additional
requirement that the request to represent oneself must be
unequivocal. United States v. Robinson (9th Cir. 1990), 913 F.2d
712, 714. In the recent Colt case, we discussed the additional
criterion of an unequivocal request but did not specifically adopt
it. Colt, 843 P.2d at 751. We do so today.
First, Langford argues that, contrary to the requirements of
Faretta, the District Court did not conduct a proper substantive
inquiry of the defendant to satisfy itself that the defendant was
in fact knowingly and intelligently foregoing the benefits of
counsel. We disagree.
Faretta does not mandate any particular sort of questioning or
inquiry, so long as the trial court satisfies itself that the
defendant is "aware of the dangers and disadvantages of self-
representation, so that . . . \he knows what he is doing and his
choice is made with eyes open.'I1 Faretta, 422 U . S . at 835.
Similarly, we stated in Colt that we do not require district courts
to rigidly adhere to a set of requirements in ascertaining whether
a criminal defendant has made a knowing and intelligent waiver of
his right t o counsel. Colt, 8 4 3 P.2d at 751. W also s t a t e d that:
e
[i]t is the district court judges who consider,
assimilate, and absorb t h e nuances of each individual
case. They are not constrained, as we are, to garnering
all of their information from a cold record. . , So .
long as substantial credible [evidence] exists to support
the decision of the District Court . .
disturbed on appeal.
.
it will not be
Colt
-1 843 P.2d at 7 5 2 ; citing State v. Plouffe (1982), 198 Mont.
While there is no q u e s t i o n that t h e trial c o u r t must, on the
record, ensure that the defendant is voluntarily and intelligently
exercising his free will in choosing to represent himself, we hold
that the record in this case supports our conclusion that the
District Court properly determined in its various colloquies with
Langford that his waiver was not voluntary, intelligent, and
knowing; and that he was not competent to represent himself.
Next, we hold that Langford's request was equivocal. In
discussing the requirement that the waiver of the right to
assistance of counsel must be unequivocal, the Ninth Circuit stated
that:
The requirement that a request for self-representation be
unequivocal also serves an institutional purpose: It
prevents a defendant from taking advantage of the mutual
exclusivity of the rights to counsel and self-
representation. A defendant who vacillates at trial
between wishing to be represented by counsel and wishing
to represent himself could place the trial court in a
difficult position: If the court appoints counsel, the
defendant could, on appeal, rely on his intermittent
requests for self-representation in arguing that he had
been denied the right to represent himself; if the court
permits self-representation the defendant could claim he
had been denied the right to counsel. See Meeks [v.
Craven (9th Cir. 1973)], 482 F.2d [465] at 468. The
requirement of unequivocality resolves this dilemma by
forcing the defendant to make an explicit choice. If he
equivocates, he is presumed to have requested the
assistance of counsel.
Adams v. Carroll (9th Cir. 1989) , 875 F.2d 1441, 1444. A defendant
who vacillates in pre-trial proceedings places the trial court in
the same difficult position as does a defendant who vacillates at
trial.
In the present case, during a pre-trial hearing held on
November 12, 1992, Langford made the following statement to the
court :
Well, I m aware of the statute
' . . . where it says you
7
can let me make a waiver of counsel if I make a . . .
knowing and a competent and intelligent decision. Well,
clearly I know what I'm doing, I m waiving my right to
'
counsel. As far as competent, I think that's covered
under do I know what I m doing, and it could be argued
'
whether it was an intelligent decision or not, I m sure.
'
But as far as I'm concerned, my butt is the one that's on
the line.
Standing alone, Langford's request appears to be unequivocal.
However, upon reviewing the record as a whole, it becomes apparent
that the request was equivocal
Langford's attorney, Lawrence Murphy, first made a motion to
withdraw on May 19, 1992. Mr. Murphy attached a letter from
Langford to the motion which expressed Langford's dissatisfaction
and his desire to retain an attorney who would, in his mind, better
represent him. In the letter Langford does not express the desire
to represent himself. On June 22, 1992, Mr. Murphy withdrew his
motion to withdraw as counsel stating that after a lengthy meeting
with Langford, Langford had requested to retain him. On October 1,
1992, Langford filed a pro se motion requesting that he be
represented by different counsel. Nowhere in the motion does
Langford request to represent himself. On October 14, 1992,
Langford filed another pro se motion requesting that he be
represented by replacement counsel at a pre-trial hearing scheduled
for October 15, 1992. Nowhere in this motion does Langford request
to represent himself. In fact, the motion states in part:
10. The Defendant does not feel that he can remotely
represent himself at such a hearing.
11. The Defendant is a [sic] isolated-out-of-sight-out-
of-mind-inmate [sic] who could not possibly make any type
of legal arguement [sic] or argue any legal points that
the State or Judge or Councel [sic] will undoubtedly
bring up.
12. The Defendant is unaware of at least 2/3rds of his
rights and needs someone to represent him at this hearing
who will protect those rights.
13. A person, in this case the Defendant, going up
against such opposing forces and being uneducated in the
law can not [sic] make any type of knowing or intelligent
decisions or waivers that he will be forced to do at such
a hearing.
At the pre-trial hearing held October 15, 1992, the court
ordered that Mr. Murphy continue as counsel and appointed Edmund
Sheehy, Jr. as co-counsel for Langford. Based on Langford's
statement that he had no objection to the new arrangement, the
court denied Langford's motion for new counsel. Finally, at the
November 12, 1992 pre-trial hearing, after Langford stated that he
wished to "fire1' his appointed counsel and waive his right to
counsel, he informed the court that he was continuing to seek the
services of other counsel.
Taken as a whole, the record clearly reflects the fact that
Langford's request to represent himself was equivocal. It is
presumed that a defendant who equivocates has requested assistance
of counsel. Carroll, 875 P.2d at 1444. Thus we hold that the
District Court did not deny Langford the right to represent
himself.
Did the District Court err by admitting evidence of a shooting
incident which occurred when officers were retaking the maximum
security unit of the Montana State Prison?
Langford filed a motion in limine to exclude any mention of
Officer Geach firing a warning shot near Langford when Geach, along
with other officers, was in the process of retaking the maximum
security unit. The District Court denied the motion.
Langford argues that the court erred in allowing the evidence
of the shooting incident because it was irrelevant, constituted
inadmissible character evidence, and was unduly prejudicial. The
State asserts that the evidence was admissible as part of the
corpus delicti.
Relevant evidence is "evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." Rule 401, M.R.Evid. Here, the burglary was
charged based on the allegation that Langford 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." Riot is defined by statute as
follows:
A person commits the offense of riot if he purposely and
knowingly disturbs the peace by engaging in an act of
violence or threat to commit an act of violence as part
of 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.
Section 45-8-103 (1) , MCA (1991) . Taken in the context of officers
retaking the maximum security unit following a violent riot,
Langfordls defiance of an officer's order tended to show his
willingness to disturb the peace and participate in the riot.
Thus, evidence of the shooting incident was relevant as it tended
to make a fact of consequence more or less probable.
Next, Langford argues that evidence of the shooting incident
should not have been allowed as it was character evidence of other
bad acts. Generally, evidence of other crimes, wrongs or acts is
inadmissible to prove the character of the person in order to show
that he acted in conformity with that conduct; but such evidence
may be admissible for other purposes. See Rule 404(b), M.R.Evid.
This Court has recognized that, as an exception to the "other
crimes" rule, the State may present the entire corpus delicti of
the charged offenses including matters closely related to the
offense and explanatory of it. State v. Hage (1993), 258 Mont.
498, 506, 853 P.2d 1251, 1256; citing State v. Riley (l982), 199
Mont. 413, 426, 649 P.2d 1273, 1279.
In w, evidence was allowed that several hours before he
killed the victim, the defendant had threatened to kill someone
other than the victim and was waving a gun around. Haqe, 853 P.2d
at 1256. This Court upheld the admission of that evidence because
it was relevant to the defendant's state of mind and actions at the
time he committed the homicide. Haqe, 853 P.2d at 1256.
Haqe is applicable to the present case. Here, Officer Geach
testified that Langford disobeyed his command to strip and go to
the ground and that Langford made a move towards him. Officer
Patrick Huber of the disturbance control team testified that
Langford had a defiant look when these actions took place. This
evidence goes to Langford's state of mind at the time that the riot
was taking place. The evidence of the shooting incident was
admissible as it was closely related to the underlying offenses and
explanatory of them.
Finally, Langford argues that the evidence of the shooting
incident was unduly prejudicial. Relevant evidence may be excluded
if its probative value is substantially outweighed by the danger of
unfair prejudice. See Rule 403, M.R.Evid. Whether the probative
value is outweighed by the prejudicial effect is within the trial
court's discretion; and the ruling of the trial court will not be
disturbed unless there is a manifest abuse of discretion. State v.
Scott (1993), 257 Mont. 454, 462-63, 850 P.2d 286, 291.
The evidence of the shooting incident is relevant to
demonstrate Langford's state of mind during the riot. Langford
fails to demonstrate how the evidence is substantially more
prejudicial than it is probative. We hold that the District Court
did not abuse its discretion in admitting the evidence.
Did the District Court err when Judge Mizner refused to recuse
himself?
On November 12, 1992, Langford moved to have Judge Mizner
recuse himself arguing that Judge Mizner had presided over four
other cases arising from the prison riot, and that he had
previously sentenced Langford to death in an unrelated case. Judge
Mizner denied the motion.
A Montana statute provides that a party is entitled to one
substitution of a district judge. Section 3-1-804, MCA (1991).
However, the right to move for a substitute judge is deemed waived
if no such motion is made before a judge has been assigned to the
cause for ten days after an information has been filed. Section 3-
1-804, MCA (1991). Montana statute also provides that if a party
files an affidavit alleging facts showing personal bias of the
presiding judge, the judge may proceed no further in the cause.
Section 3-1-805, MCA (1991). However, such an affidavit must be
filed more than 30 days before the date set for hearing or trial.
Section 3-1-805, MCA (1991).
Trial in this matter initially was set for August 3, 1992.
After several continuances, the case went to trial on November 24,
1992. Langford moved the court to have Judge Mizner remove himself
on November 12, 1992. Langford concedes that his motion was not
timely filed under the above-listed statutes. He contends that the
timeliness of his motion is not fatal in this case because this
Court has held that where a trial judge is to be the trier of fact
and participates in pre-trial negotiations which subsequently fail,
the trial judge should, upon request, step down. Shields v. Thunem
(1986), 220 Mont. 449, 452, 716 P.2d 217, 219.
In Shields, on the day of the trial, the judge acted as an
arbitrator and mediator of the partiesr dispute by placing the
parties in separate rooms; taking offers and counter offers to the
parties; and hearing some of the respective arguments of the
parties ex parte. Shields, 716 P.2d at 217-18. In that situation,
we held that the judge should have recused himself because of his
extensive involvement in pre-trial negotiations. Shields, 716 P.2d
at 219. Here, there is no indication of such involvement in pre-
trial negotiations on the part of the court; nor was the court the
trier of fact. Thus, our ruling in shields is inapplicable.
In addition, Langford urges us to adopt the position, taken by
the ~ r i z o n aSupreme Court in State v. Vickers (Ariz. 1984), 675
P.2d 710. The V i c k e r s court recognized that it had held that a
judge need not disqualify himself even though he had knowledge of
prior bad acts if the acts ordinarily would come to light in a
presentence report. Vickers, 675 P.2d at 712. However, the
Vickers court then held that an appearance of impropriety was
created when a judge who had passed a capital sentence on a
defendant in an unrelated case presided over the same defendantfs
subsequent case, in which a capital sentence was a possibility.
Vickers, 675 P.2d at 712, We decline to adopt Vickers.
We conclude that it does not create a per se appearance of
impropriety for a trial judge to preside over a potential capital
case involving the same defendant the judge had previously
sentenced to death in an unrelated case. Nothing in the record
before us indicates that Judge Mizner was prejudiced against
Langford. We hold that the court did not err by denying Langfordrs
motion for recusal.
IV
Did the District Court abuse its discretion when it admitted
into evidence autopsy photographs of the five inmate victims?
~uring the trial, the State introduced several autopsy
photographs of the homicide victims. Dr. Gary Dale, a pathologist,
used the photographs during his testimony to explain the causes of
death. Langford contends that the photographs' probative value was
* 2 L
that it had not allowed them access to the photographs during
deliberations because it felt that if they had viewed them in the
jury room, the photos would have been unduly prejudicial.
Langford's arguments have no merit.
In another case rising out of the same prison riot, when
discussing the trial court's ruling regarding autopsy photos and
undue prejudice, we noted that it was most important that the court
had not allowed the photographs into the jury room. State v. Cox
(Mont. 1994) , - P.3d , , 51 St-Rep. 680, 685. We hold that
the District Court used sound discretion in allowing the probative
photographs into evidence, and then determining that there was a
greater chance of prejudice had the photographs gone to the jury
room. We will not disturb the District Court's ruling, as there
was not a manifest abuse of discretion in admitting the photographs
into evidence.
The judgment of the District Court is affirmed.
Justice Karla M. Gray, specially concurring.
I concur in the Courtls opinion except as to issue 2. I
specially concur with regard to that issue, agreeing with the
result reached by the Court but not with all that is said in
reaching that result.
Specifically, I am unconvinced that the shooting incident
which occurred when officers were in the process of retaking the
maximum security unit was relevant to any "fact that is of
consequence to the determination of the action" under Rule 401,
M.R.Evid. Nor am I convinced that the shooting incident, which
occurred after the offenses with which Langford was charged had
been committed, falls within the corpus delicti of those offenses.
Nonetheless, in the context of the overall evidence of
Langford's acts in participating in the riot, I conclude that
admission of the evidence was error concerning which Langford did
not establish any prejudice. Thus, it is my view that admission of
the shooting incident evidence was harmless error by the District
Court, not reversible by this Court.
CERTIFICATE OF SERVICE
prepaid, to the
COURT