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, Asslt Attorney General, 

Helena, Montana 

Christopher Miller, Powell County Attorney, 

Deer Lodge, Montana 

.? ~.i ., . !.!. , ',': ... ,.#

OGT 04 1994 Submitted on Briefs: August 18, 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. ~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 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 selfrepresentation, 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 to counsel. Colt, 843 P.2d at 751. We also stated that: 

[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 substantial credible [evidence] exists to support 

the decision of the District Court . . . it will not be 

disturbed on appeal. 

-1 Colt 843 P. 2d at 752; citing State v. Plouffe (1982) , 198 Mont. 

While there is no question that the trial court 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 selfrepresentation. 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-outof-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 pretrial 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 ~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 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, 

COURT 

to the