NO. 93-368 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

STATE OF MONTANA, Plaintiff and Respondent,

-vsTERRY 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,AssltAttorney General, Helena, Montana Christopher Miller, Powell County Attorney, Deer Lodge,Montana

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## 041994 Submitted on Briefs: August 18, 1994

### Justice John Conway Harrison delivered the Opinion of the Court.

Terry Allen Langford (Langford)appeals froma 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

recusehimself? 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 securityunit of theprison. Theseprisonerswere able to release the other maximum security prisoners. When officers regained control of the building approximately five hours later, they discovered that fiveprotective custody inmateshad been killed in the riot, and others severelybeaten. The maximum security unit of the Montana State Prison 

### is divided into sixblocks with two central control cages. "A 

### Block," 

### "B Block," and "C Block" are located on the west side of the

### building along with themain control cagewhich controlsoperations 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 cagewhich controlsoperations 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, therewere 68 

### inmates in themaximum securityunit. 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 exerciseyards. 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 enteredyard 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 thewest side of thebuilding. 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 inmateswere killed in the riot,and otherswere 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 hiddenweapons. Geach testifiedthatLangford neither strippednor went to the ground when commanded to do so. ~ccording to 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 informationwith

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. Followinga jury trial,Langfordwas convicted ofburglary and

one count of deliberatehomicide. He was sentenced to 20years in prison on the count of burglary and life imprisonment on the count of deliberatehomicide. The sentences were 

### to run concurrently to each other and consecutively to the sentencesLangford was alreadyserving. I Did the District Court violate Langfordlsright to represent himself? At a pre-trial hearing held November 12, 1992, Langford informed the court that hewished 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 theU:nitedStatesConstitution andArticle 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 interpretedArticle 11, Section 24 of the Montana Constitution to provide the right of the defendant to proceed pro se. Statev. Colt (1992), 255Mont. 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). TheNinth Circuit Court of Appeals utilizes theadditional requirement that the request to represent oneself must beunequivocal. 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 defendantwas in fact knowingly and intelligently foregoing the benefits of counsel. We disagree. Farettadoesnotmandate anyparticular sortof questioningor inquiry, so long as the trial court satisfies itself that the defendant is "aware of the dangers and disadvantages of selfrepresentation, so that 

# . . . \heknows what he is doing and his choice 

### is made with eyes open.'I1 Faretta, 422 U.S. at 835. Similarly,we stated 

### in Colt thatwe 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 tocounsel. 

### Colt, 843P.2d at 751. We 

### also statedthat: [i]t is the district court judges who consider, assimilate, and absorb the 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 substantialcredible [evidence]existsto support the decision of the District Court 

# . .

# . it will not be disturbed on appeal. Colt 843 

### P.2d at 752; citing State v. Plouffe (1982)

### , 198 Mont. -1

While there 

### is no question that the trial courtmust, on the record, ensure that the defendant 

### isvoluntarily 

### and intelligentlyexercising his freewill 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, theNinth Circuit stated that:Therequirement thata request forself-representationbe unequivocal also serves an institutional purpose: It prevents a defendant from taking advantage of themutual exclusivity of the rights to counsel and selfrepresentation. A defendant who vacillates at trial betweenwishing tobe representedby 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 thedefendant could claimhe 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 tomake an explicit choice. Ifhe equivocates, he is presumed to have requested the assistance of counsel. Adams v. Carroll (9thCir. 1989)

## , 875F.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 competentand 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 intelligentdecision ornot, I'm sure. But as faras 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, itbecomes 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 themotion which expressed Langford's dissatisfaction and his desire to retain an attorneywho would, inhis mind,better represent him. In the letter Langford doesnot express the desire 

### to represent himself. On June 22, 1992, Mr. Murphy withdrew his motion towithdraw as counsel stating that after a lengthy meeting with Langford,Langford had requested to retainhim. OnOctober 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 representedby replacement counsel ata pre-trialhearing scheduled for October 15, 1992. 

### Nowhere in thismotion doesLangford request to representhimself. In fact, themotion states in part: 10. The Defendant does not feel that he can remotely representhimself at such a hearing. 11. 

### The Defendant is a [sic] isolated-out-of-sight-out

### of-mind-inmate [sic]who could not possiblymake any type of legal arguement [sic] or argue any legal points that the State or Judge or Councel [sic] will undoubtedlybring up. 12. The Defendant is unaware of at least 2/3rds of his rightsand needs someonetorepresenthim at thishearing who will protect those rights. 13. A person, in this case the Defendant, going up against such opposing forcesand being uneducated in the law cannot [sic]make any typeof knowing or intelligent decisionsorwaivers thathewill be forced todo 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, 1992pre-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 defendantwho equivocateshas 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 theDistrict Court errby 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 ofOfficerGeach 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 "evidencehaving any tendencytomake 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, theburglary was charged based on the allegation that Langford had "knowingly entered or remained unlawfully in an occupied structure, the D Block area of themaximum securityunit,with thepurpose 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 threatpresents 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 incidentwas relevant as it tended to make 

### a fact of consequencemore or less probable.

### Next, Langford argues that evidence of the shooting incident shouldnot have been allowed as 

### it was character evidence of other bad acts. Generally, evidence of other crimes,wrongs or acts is inadmissible toprove 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 thevictim and waswaving a gun around. Haqe, 

### 853 P.2d at 1256. This Court upheld the admission of 

### that evidence because itwas relevantto thedefendant's state ofmind and actionsat 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 evidencegoes to Langford's state of mind at the time that the riot

was taking place. The evidence of the shooting incident was admissibleas itwas closely related to theunderlying offenses and

### explanatory of them. Finally, Langford argues that the evidence of the shooting incidentwasundulyprejudicial. Relevant evidencemay be excluded if its probativevalue is substantially outweighedby thedanger 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 courtwill not be disturbedunless there isa manifest abuse of discretion. Statev. 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 isprobative. We hold that the DistrictCourt did not abuse its discretion in admitting the evidence.

Did theDistrict Court errwhen JudgeMizner 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 sentencedLangford 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 tomove fora substitute judge isdeemed waived if no such motion ismade before a judge has been assigned to the

### cause fortendays afteran informationhasbeen 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 filedmore 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. Langfordmoved the court tohave JudgeMizner removehimself on November 12, 1992. 

### Langford concedes that his motion was not timely filedunder theabove-listed statutes. He contends that the timeliness of his motion is not fatal in this case because this Court hasheld thatwhere a trial judge is tobe the trier of fact andparticipates inpre-trial negotiationswhich subsequentlyfail, the trial judge should,upon request, stepdown. Shieldsv. 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 exparte. Shields, 716 

### P.2d at 217-18. Inthat situation,

we held that the judge should have recused himself because of his extensive involvementinpre-trial negotiations. Shields, 716 

### P.2d at 219. Here, there is no indication of such involvement in pretrial negotiations on thepart of the court; nor was the court thetrier of fact. Thus, our ruling in shields 

### is inapplicable. Inaddition, Langfordurgesus to adopt theposition, takenby the 

### ~rizona Supreme Court in 

### State 

### v. Vickers (Ariz. 1984)

### , 675 P.2d 710. The Vickers 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 courtdid not errby 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? ~uringthe trial, 

### the State introduced several 

### autopsy photographs of thehomicidevictims. Dr. 

### Gary Dale,

### a pathologist, used thephotographs during his testimony to explain the causes of death. Langford contends that

### thephotographs' probativevalue

### 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 undueprejudice,wenoted that itwasmost importantthatthecourt had not allowed the photographs into the jury room. Statev. Cox

(Mont. 1994)

## , -P.3d 

### , , 51 St-Rep.680, 685. We hold that the District Court used sound discretion in allowing theprobative 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 inadmitting thephotographs into evidence. The judgment of the District Court is affirmed.Justice Karla M. Gray, specially concurring.

I concur in the Courtlsopinion 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 establishany prejudice. Thus, it ismy view that admission of the shooting incident evidence was harmless error by the District Court, not reversible by this Court.CERTIFICATE

### OFSERVICE prepaid,



### COURTtothe