NO. 93-370 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

ROBERT DEE CLOSE, 

Defendant and Appellant. 

SEP 15 49% 

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: 

Gregory A. Jackson, Jackson & Rice, Helena, Montana 

William F. Hooks, Appellate Defender, Helena, 

Montana 

For Respondent: 

Honorable Joseph P. Mazurek, Attorney General; 

Joseph E. Thaggard and Barbara C. Harris, Assistant 

Attorneys General, Helena, Montana 

Christopher Miller, County Attorney, Deer Lodge, 

Montana 

Filed: 

Submitted on Briefs: June 24, 1994 

Decided: September 15, 1994 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Robert Dee Close was convicted in a jury trial in the District 

Court for the Third Judicial District, Powell County, of burglary, 

five counts of deliberate homicide, and sexual intercourse without 

consent by accountability. He appeals. We affirm. 

The issues are: 

1. Did the District Court err in refusing to instruct the 

jury on the defense of necessity? 

2. Did the court err in allowing admission of the autopsy 

photographs of the five homicide victims? 

3. Did the court err in denying Close's motion to dismiss on 

the ground that the State failed to preserve evidence? 

Close concedes in his reply brief that a fourth issue raised 

in his opening brief was not properly presenred for appeal. 

Therefore, we shall not address that issue. 

On September 22, 1991, inmates in the maximum security unit at 

the Montana State Prison took control of the building. When 

correctional officers regained control four hours later, five 

protective custody inmates housed in cellblock D had been killed. 

The facts of the riot are set forth in greater detail in our 

opinion in State v. Gollehon (1993), 262 Mont. 293, 864 P.2d 1257. 

Robert Close was an inmate on cellblock C of the maximum 

security unit at the time of the riot. The information filed 

against him charged him with burglary, five counts of deliberate 

homicide, and sexual intercourse without consent by accountability. 

As to the burglary charge, the information alleged that Close 
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. 

Each of the five separate deliberate homicide counts stated that 

with the purpose of promoting or facilitating the offense 

of burglary, [Close] aided, abetted or attempted to aid 

other inmates in the maximum security unit in the 

planning or commission of the offense of burglary and in 

the course of said burglary, [Close] or other persons 

legally accountable for said burglary, caused the death 

of [one of the five victims]. 

The count of sexual intercourse without consentchargedthat Close, 

with the purpose of promoting or facilitating the 

commission of the offense of Sexual Intercourse Without 

Consent, aided, abetted or attempted to aid Brian Spray 

in the planning or commission of the offense of Sexual 

Intercourse Without Consent against Inmate Doe. 

The jury found Close guilty of all charges filed against him. He 

appeals. 

ISSUE 1 

Did the District Court err in refusing to instruct the jury on 

the defense of necessity? 

In his defense to the State's evidence at trial concerning his 

activities during the prison riot, Close testified that the only 

reason he entered cellblock D, where the five homicides occurred, 

was because an inmate housed on that cellblock asked him to come 

there. Close testified that he only entered D block in response to 

a message conveying the request of that inmate, Dan Willson: that 

he assured Willson he would do what he could to protect him from 

the other rioting inmates; and that he then returned to his own 

cellblock. He claims that he went to cellblock D of necessity, to 

prevent the imminent threat of death or serious bodily injury to 
Willson. Close offered two jury instructions concerning the 

defense of necessity, butthe District Court refused both of them. 

Close argues that the defense of necessity is a separate 

common law defense from the defense of compulsion now codified at 

5 45-2-212, MCA. However, at the settling of jury instructions, 

Close's counsel acknowledged that "the statement of the law in 

regard to compulsion and necessity is said to be the same." In 

State v. Ottwell (1989), 240 Mont. 376, 784 P.2d 402, this Court 

recognized that § 45-2-212, MCA, abandons the distinction between 

the related defenses of necessity, duress, and compulsion and 

represents a glstatutory amalgamation." "It brings together all of 

the related defenses, by whatever name called, under a single 

codification." Ottwell, 784 P.2d at 404. 

In City of Helena v. Lewis (l993), 260 Mont. 421, 860 P.2d 

698, this Court restated the scope of the defense of necessity or 

compulsion under the statute: "[Section 45-2-212, MCA] does not 

excuse criminal conduct unless the verson assertinq the defense 

reasonably believes that death or serious bodily injury will be 

inflicted uvon him if he does not perform the criminal act." 

Lewis, 860 P.2d at 701 (emphasis in original). 

Closets claim that he was entitled to jury instructions on the 

necessity defense is based on an alleged threat of death or serious 

bodily injury to another person, Willson. Under our holding in 

Lewis, the necessity defense is limited to situations in which the 

defendant reasonably believes there is a threat against the 

defendant himself. The necessity defense has no application here. 
If the jury had believed Closets defense, it could have 

properly found that the burglary charge had not been proven because 

of failure of the State to establish the element of intent beyond 

a reasonable doubt. We hold that the District Court did not err in 

refusing Closets offered instructions on the defense of necessity. 

ISSUE 2 

Did the court err in allowing admission of the autopsy 

photographs of the five homicide victims? 

This Court recently ruled that the same autopsy photographs 

which are at issue in this case were admissible in the trial of 

another person facing charges out of the September 22, 1991 riot at 

Montana State Prison. In Gollehon, 864 P.2d at 1263, we set forth 

the standard that, when considering whether photographs should be 

admitted as evidence at trial, the court must determine whether 

their probative value is substantially outweighed by the danger of 

unfair prejudice, citing Rule 403, M.R.Evid., and State v. Henry 

(1990), 241 Mont. 524, 788 P.2d 316. We noted that the autopsy 

photographs were offered in that case, as they were in the present 

case, to prove the means by which the victims were killed and to 

corroborate the testimony of the inmates who described what they 

heard or saw in cellblock D during the riot. We pointed out that 

although the photographs were graphic depictions of the assaults 

committed against the victims, they were only exhibited during the 

State Medical Examiner's testimony and the jury was not allowed to 

take them into deliberations. That was also true in the present 

case. We concluded: 
After considering the evidence in question, we are aware 

that the photographs depict the brutality and viciousness 

of the crimes committed. However, we do not believe that 

they would have aroused the jurorst passions any more 

than other evidence of Gollehonts conduct. As we stated 

in State v. Doll (1985), 214 Mont. 390, 400, 692 p.2d 

473, 478, It[w]e will not demand that a trial be sanitized 

to the point that important and probative evidence must 

be excluded.t1 We, therefore, hold that the District 

Court did not abuse its discretion when it admitted the 

autopsy photographs into evidence. 

Gollehon, 864 P.2d at 1263. 

In this case, a juror fainted while the autopsy photographs 

were being displayed. The defense moved for a mistrial. Close 

argues that this distinguishes this case from Gollehon. We 

conclude that, while it may add a different twist, it does not 

require a different result under the circumstances here presented. 

After the juror fainted, she was assisted from the jury box by 

two of the State's witnesses, without verbal communication. The 

court immediately asked the other jurors to return to the jury 

room. When the juror was revived, she was taken into the judge's 

chambers, where she told the judge and counsel for both parties 

that she had fainted without forewarning, probably because of the 

autopsy photos. Although she was willing to continue on the case, 

the court removed her from the jury and an alternate was substituted. When trial resumed the following morning, the court instructed 

the jury as follows: 

During the course of this trial, there has been reason 

for the Court to replace one of the jurors with an 

alternate. That procedure, or the reason therefor, 

should not play any part in your deliberations regarding 

this case. If any of you feel that you cannot fairly and 

impartially take part in deliberations because of the 

replacement of the juror, or the reason therefor, please 
let the Court know at the next available break in the 

trial. 

The defendant did not object to this instruction, and no juror 

contacted the court in response to it. 

This Court has affirmed the use of alternate jurors to avoid 

a mistrial where no prejudice has been shown to a defendant from 

juror conduct. State v. Pease (l986), 222 Mont. 455, 724 P.2d 153; 

State v. Baugh (1977), 174 Mont. 456, 571 P.2d 779. Here, Close 

has not shown prejudice to his case as a result of the juror's 

fainting while viewing the autopsy photographs. The juror who 

fainted and was assisted by the State's witnesses was removed from 

the case. The involvement of the other jurors in this event was & 

minimus. The court offered, but none of them found necessary, the 

opportunity to disqualify themselves because of it. 

We hold that the District Court acted within its discretion 

in admitting the autopsy photographs into evidence. 

ISSUE 3 

Did the court err in denying Close's motion to dismiss on the 

ground that the State failed to preserve evidence? 

Close argues that the State violated his due process rights by 

failing to preserve exculpatory evidence--his clothing which was 

turned in immediately after the riot. He contends that the absence 

of bloodstain on that clothing would support his defense. 

In Gollehon, 864 P.2d at 1264-65, we held that the destruction 

of the prisoners' clothing after the September 1991 prison riot did 

not constitute a deliberate suppression of valuable exculpatory 

evidence, and that, therefore, no deprivation of the right to due 

7 
process occurred. Close argues that the incorrect standard was 

employed in Gollehon, and that the standard for preserving 

evidence, rather than the standard for gathering evidence, should 

have been used. He argues that even a neslisent suppression of 

evidence is a denial of due process if the defense shows that the 

evidence was material, of substantial use, and exculpatory in that 

"it '[wlould have tended to clear the accused of guilt, to vitiate 

a conviction,'" citing State, City of Bozeman v. Heth 

Mont. 268, 272, 750 P.2d 103, 105. 

Close has not shown that the clothing he turned in 

(l988), 230 

at the end 

of the riot was the clothing he wore throughout the riot. Further, 

an absence of bloodstain on the clothing would not establish that 

he did not enter cellblock D for the purpose of participating in 

the riot. He has not, therefore, shown that the clothing he turned 

in after the riot would be of substantial use and would have tended 

to clear him from guilt. We hold that the District Court did not 

err in denying Close's motion to dismiss for failure to preserve 

evidence. 

Affirmed. 

<Lup. 

Chief Justice 
We concur: 

Justices 
~ustice James C. Nelson concurs. 

I concur in the Court's opinion. I agree that in City of 

Helena v. Lewis (l993), 260 Mont. 421, 860 P.2d 698, we 

unequivocally held that, by reason of language of 3 45-2-212, MCA, 

the defense of necessity is not available where the person 

asserting the defense acts in the reasonable belief that death or 

serious bodily injury will be inflicted on someone other than 

himself or herself. See also City of Missoula v. Asbury (1994), 

Mont . -, 873 P.2d 936, in accord. 

I suggest, however, that the restrictive language in our 

statutory law and our interpretations of that law leave the 

criminal defendant without a legitimate and important affirmative 

defense that was traditionally recognized at common law and which 

may very well be his or her only defense under the facts of a given 

case. While a defendant can always argue that he or she did not 

have the requisite mental state to commit the crime charged, that 

defense, in my experience, is rarely persuasive and certainly does 

not impact the jury with the same significance or force as does a 

recognized affirmative defense. 

Whether § 45-2-212, MCA, was written to be restrictive by 

accident or by design, I respectfully submit that the statute 

should be amended to include a legitimate third-party necessity, / 

justification, 

defense. 

compulsion, duress, or ItcWce of twa/ evilstt 
Justice Terry N. Trieweiler specially concurring. 

I concur with Issues 2 and 3 of the majority opinion. 

I specially concur with the result of Issue 1 of the 

majority's opinion, but disagree with the majority's reason for 

arriving at that result. 

Specifically, I disagree that the common law defense of 

necessity is subsumed in and eliminated by the statutory defense of 

compulsion set forth at 5 45-2-212, MCA. To the extent that Cityof 

Helenav.Lewis (1993), 260 Mont. 421, 860 P.2d 698, holds otherwise, 

I would reverse that decision. 

In State v. Otlwell (l989), 240 Mont. 376, 784 P.2d 402, we 

recognized the common law defense of necessity and characterized it 

as follows: 

The necessity defense has also been characterized by 

situations in which the defendant faced a choice between 

two evils. In this type of case, defendants argued that 

they were justified in breaking the law to prevent a 

greater harm than the law was intended to cure. Thus, in 

one case, the defendants claimed necessity as a defense 

to charges of smuggling Laetrile into the United States 

to treat cancer patients. UnitedStatesv. Richardson (9th Cir. 

1978), 588 F.2d 1235, 1239, cert. den. 440 U.S. 947, 99 

S.Ct. 1426, 59 L.Ed.2d 636. In another, a defendant who 

felt a moral obligation to frustrate United States 

military efforts in Southeast Asia claimed necessity as 

a defense to charges of burning Selective Service System 

records. United States v. Simpson (9th Cir. 1972) , 460 F. 2d 

515, 517-18. 

While Oftwell did not pertain to a situation where a law was 

broken to prevent harm to a third person, this Court did hold that 

the codification of the defense of compulsion did not preclude 
retention of the defense of necessity under other circumstances. 

We retained the defense of necessity as it pertains to prisoners 

charged with escape. We held as follows: 

We conclude that the compulsion statute and - 

necessity doctrine of [State v.] Strandberg [ (1986) , 223 Mont . 132, 724 P.2d 710,] do not provide mutually exclusive 

defenses; they are complimentary. Strandberg is merely an 

application of the compulsion statute tailored to the 

circumstances of prison escapes. When dealing with 

prison escapes, therefore, Strandberg provides the 

appropriate analysis. 

Ottwell, 784 p.2d at 405. 

Likewise, I conclude that the compulsion statute and the 

common law doctrine of necessity, as it pertains to the defense of 

third persons, are not mutually exclusive and would retain that 

common law doctrine. For that reason, I disagree with the 

majority's conclusion under Issue 1. 

However, in spite of my conclusion that the common law 

doctrine of necessity is a viable affirmative defense in Montana, 

I also conclude that the defense was inapplicable to the facts in 

this case. 

The defense of necessity applies where someone violates the 

law to avoid the threat of harm to another. In this case, 

defendant was charged with burglary for knowingly entering and 

remaining in Cellblock D for the purpose of engaging in a riot. 

However, defendant denied that he entered Cellblock D for the 

purpose of engaging in a riot. His contention is that he entered 

Cellblock D only for the purpose of protecting an inmate who 

resided there. Therefore, by his own testimony, he did not violate 
the law to avoid the threat of harm to another, and the defense of 

necessity was not applicable in this case. For these reasons, I 

would affirm the District Court's refusal to give defendant's 

proposed instructions on the defense of necessity. 
prepaid, to the 

COURT