NO. 93-066

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

STATE OF MONTANA,

Plaintiff and

v.

WILLIAM JAY GOLLEHON,

Defendant and

Respondent,

Appellant.

APPEAL FROM: District

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Court of the Third Judicial District,

In ana for the County of Powell,

The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Byron Boggs, Attorney at Law, Missoula,

Montana: William F. Hooks, Appellate

Defender, Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

John P. Connor, Jr., Assistant Attorney

General, Helena, Montana

1

' Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.

Defendant William Jay Gollehon was charged in the District

Court for the Third Judicial District in Powell County with two

counts of kidnapping by accountability, one count of burglary, and

five counts of deliberate homicide. Following a seven-day jury

trial in Bozeman, Montana, Gollehon was convicted of all charges

and was subsequently sentenced by the District Court. Gollehon

appeals from his convictions. We affirm the judgment of the

District Court.

The following issues are presented on appeal:

1 . Did the District Court err when it denied defendant's

motion to dismiss the charge of burglary?

2 . Did the District Court err when it denied defendant's

motion to dismiss the five counts of deliberate homicide?

3 . Did the District Court abuse its discretion when it

admitted into evidence autopsy photographs of the victims?

4 . Did the District Court err when it denied defendant's

motion for mistrial on the basis of juror misconduct?

5 . Did the State's destruction of certain physical evidence

deny defendant his constitutional right to due process of law?

On the morning of September 22, 1991, William Jay Gollehon and

eight other Montana State Prison inmates gained access to, and took

control of, the maximum security unit of the prison. When officers

regained control of the building four hours later, five protective

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custody inmates had died as a result of the riot that Gollehon and

others participated in.

The maximum security building is divided into two separate

areas. "A Block," "B Block," and "C Block" are located on the west

side of the building. "D Block," "E Block," and "F Block" are

located on the east side. Control cages are located on each side

of the building. The west control cage regulates the power to A,

B, and C Blocks, and the east control cage regulates the power to

D, E, and F Blocks. Centered between the two units of the building

are six separate exercise yards. At the time of the riot, there

were ten protective custody inmates housed on D Block, and a total

of 68 inmates in the maximum security building. Gollehon was one

of the maximum security inmates housed on C Block.

During the morning of September 22, 1991, thirteen inmates,

including Gollehon, were in the exercise yards. While officers

were returning some of the inmates from the exercise yards to their

cells, Gollehon and eight other inmates broke through the wire

fences separating the exercise areas and eventually gained access

to the section of the maximum security building leading to A, B,

and C Blocks. Once inside the building, the inmates were able to

reach both control cages and ultimately were able to open the doors

to all of the blocks in the maximum security unit.

While the inmates had control of the building, five officers

took refuge by locking themselves in a shower facility in C Block.

The inmates threatened to burn the officers out of the shower if

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they did not release keys to other sections of the building. The

officers complied, and then heard the inmates say they were going

to go to D Block and "get'l the protective custody inmates. The

officers remained in the shower until they were released by other

officers after the riot.

Two protective custody inmates who were working outside their

cells took refuge by barricading themselves in the laundry room.

The rioting inmates, including Gollehon, tried unsuccessfully to

break down the door and to smoke them out of the laundry room by

starting a fire. At one point, not expecting to survive the

attack, one of the inmates wrote the names of the inmates who were

trying to get at them on the side of the dryer. Gollehon's name

was included. Unable to get at the inmates in the laundry room,

the rioting inmates entered D Block, opened the cells, and

proceeded to kill five of the protective custody inmates.

On February 3, 1992, Gollehon was charged in an eight count

information with two counts of kidnapping by accountability in

violation of 55 45-2-302 and 45-5-302, MCAi one count of burglary

in violation of 5 45-6-204, MCA; and five counts of deliberate

homicide in violation of § 45-5-102(1)(b), MCA.

Gollehon filed motions to dismiss the burglary and homicide

charges on the grounds that the burglary statute was not applicable

to the facts of the case and that the homicide counts, based on the

felony murder theory, would, therefore, necessarily fall. This

motion was denied.

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He also filed a motion to produce various items of physical

evidence, including the clothing that he was wearing at the time of

the alleged offenses and the clothing of the other inmates of the

maximum security unit. That motion was denied for the reason that

the State had destroyed the clothing and much of the personal

property of the inmates after the riot.

Gollehon was convicted of all charges following a jury trial.

He was sentenced to 10 years imprisonment on each count of

kidnapping, and 20 years on the count of burglary, all of which

were to run consecutively. He was sentenced to five concurrent

terms of life imprisonment on the deliberate homicide convictions,

to run consecutively with the sentences imposed for kidnapping and

burglary, and the sentences already being served for prior

offenses. From this judgment, Gollehon appeals.

Did the District Court err when it denied defendant's motion

to dismiss the charge of burglary?

The burglary charge was based on the allegation that Gollehon

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." Section

45-2-101(40), MCA, defines occupied structure as follows:

"Occupied structure" means any building, vehicle, or

other place suitable for human occupancy or night lodging

of persons or for carrying on business, whether or not a

person is actually present. Each unit of a buildinq

consistinq of two or more units senaratelv secured or

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occuvied is a sevarate occupied structure. [Emphasis

added].

Gollehon contends that the court should have dismissed the

burglary charge on the basis that the definition of occupied

structure is inapplicable to his unauthorized entry into D Block.

He asserts that the maximum security unit is one single building,

and that no sections of the building constitute a separate occupied

structure apart from the remainder of the unit. As a matter of

law, he contends that he could not be charged with burglary for

entering D Block during the September 1991 riot.

When reviewing a trial court's interpretation of the law, the

standard of review employed by this Court is whether the court

correctly interpreted the law. Steer, Inc. v. Deparmtent of Revenue ( 1990) ,

245 Mont. 470, 803 P.2d 601. In this instance, the court concluded

that the burglary statute was applicable because the definition of

"occupied structure" encompassed the D Block of the maximum

security unit. After considering the express language of the

statute in question, and the circumstances of this case, we

conclude that the court correctly interpreted the statute and did

not err when it denied Gollehon's motion to dismiss the burglary

charge.

The language used in C, 45-Z-101(40), MCA, defining occupied

structure is plain and unambiguous. It clearly states that each

unit of a building which consists of two or more separately secured

units is a separate occupied structure. The maximum security unit

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is a building consisting of several "blocks" which are physically

distinct and are separately secured. Moreover, each block consists

of separately secured cells which are intended for human occupancy.

The plain language of the statute clearly contemplates that a

burglary can occur within parts of a building when one unlawfully

enters or remains within a separately secured unit within that

building. The unauthorized entry by Gollehon and the other rioting

inmates into D Block of the maximum security unit fits squarely

within the burglary statute. When statutory language is plain,

unambiguous, direct, and certain, a court cannot apply any other

means of interpretation. whitev. white (1981), 195 Mont. 470, 636

P.2d 844.

Gollehon claims that this interpretation of the statute is

contrary to the provisions of § 45-1-102(1)(c), MCA, which requires

that the definition of an offense provides "fair warning of the

nature of the conduct declared to constitute an offense." He notes

that the Powell County District Court records reveal that no

prisoner has ever been charged with burglary for unauthorized entry

into another area of the prison, but here, without fair warning

that he could be charged in this manner, he stands convicted of

five counts of homicide by virtue of the State's unprecedented

application of the burglary statute. He contends that the burglary

statute does not state that it specifically applies to prisons and

that if the Legislature intended it to apply to the State Prison it
could have expressly so stated. Without such a statement, he

asserts the inference must be drawn that such an application of the

statute was not intended.

Montana's burglary statute does not enumerate specific

structures or types of buildings to which it applies. Rather, the

statute refers to an "occupied structure" which, in turn, is

generally defined. Because the statute is general in nature, it is

inconsistent to suggest that a structure satisfying the definition

of an occupied structure cannot be the site of a burglary unless it

is specifically enumerated. Even though no prisoners have

previously been charged with burglary for conduct occurring within

the prison, the language of the statute is clear and provides fair

notice to all persons of conduct which constitutes the criminal

offense of burglary.

Gollehon also argues that the prison handbook, which describes

internal institutional rules, does not warn inmates that an

inmate's presence in an unauthorized area of the prison could

result in a charge of burglary in district court. The prison's

orientation handbook does not serve as an exclusive list of

offenses for which an inmate can be charged in court. The prison

handbook warns inmates to follow all "city, county, state, and

federal laws," and the internal disciplinary procedures established

by the prison do not exempt inmates from compliance with the laws

of the State of Montana.

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Gollehon urges this Court to reject the application of the

burglary statute to this situation due to the unique circumstances

which exist in a prison. Because prisoners are required to be in

certain authorized areas only and are not allowed the same

liberties that the general population enjoys, he contends that

different concepts must be employed when an inmate ventures into

unauthorized areas of the prison.

The law provides that a person is liable for burglary only

when he or she unlawfully enters an occupied structure with the

purnose to commit an offense therein. Section 45-6-204(l), MCA.

The fact that an inmate may be in an unauthorized area of the

prison does not, by itself, constitute a burglary. However, if he

or she enters that area for the purpose of committing an offense,

an inmate should be as liable as anyone else for the consequences

of that act. Although this Court has not previously addressed

burglary in the context of a correctional facility, our decision is

consistent with the holding in People v.prinsre (N.Y. App. Div. 1983),

465 N.Y.S.2d 742, in which a New York court addressed a similar

situation. After considering language in the burglary statute

defining "building" as a structure consisting of "two or more units

separately secured or occupied," that court held that a nurse's

station within a prison was a "building" for purposes of the

burglary statute. The factor deemed decisive was that the nurse's

station was an independent unit within the prison building with its

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own secure entrance. Ptingle, 465 N.Y.S.2d. at 743. Here, D Block

is similarly an independent area of the maximum security unit which

is separately secured. Because Gollehon entered that area for the

purpose of committing an offense, we conclude that he is

appropriately chargeable with burglary.

We hold that the District Court correctly concluded that

Gollehon could be charged with burglary for his unauthorized entry

into D Block during the September 1991 riot.

II.

Did the District Court err when it denied defendant's motion

to dismiss the five counts of deliberate homicide?

As a result of the deaths which occurred during the riot,

Gollehon was charged with five counts of deliberate homicide

pursuant to 5 45-5-102(1)(b), MCA, which is Montana's

"felony-murder rule." That statute provides, in relevant part,

that a person commits the offense of deliberate homicide if, during

the course of the commission of burglary, "he or any person legally

accountable for the crime causes the death of another human being."

Gollehon contends that the court should have dismissed the

homicide charges because he was improperly charged with burglary,

and therefore, there was no underlying felony upon which to base

the homicide charges. Since we have held that the burglary charge

was proper, we conclude that this argument is without merit.

10
The District Court did not err when it denied the motion to

dismiss the deliberate homicide charges.

III.

Did the District Court abuse its discretion when it admitted

into evidence autopsy photographs of the victims?

During the trial, the State introduced 20 color photographs

taken by the medical examiner during the autopsies of the five

victims. Gollehon contends that the court abused its discretion

when it admitted these graphic photographs into evidence because

their prejudicial effect far outweighed any probative value. It is

his contention that the photographs had little probative value

because there was no dispute that the homicides had occurred, nor

was there a dispute about the identity of the victims, the position

of their bodies, or the nature or location of the injuries or

causes of death.

The standard of review of evidentiary rulings is whether the

district court abused its discretion. .%atev.ctit (1992), 253 Mont.

442, 833 P.2d 1052. The court has broad discretion to determine

whether or not evidence is relevant and admissible, and absent a

showing of an abuse of discretion, the trial court's determination

will not be overturned. crist, 833 P.2d at 1054.

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

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prejudice. Rule 403, M.R.Evid.; .%te!J.Heny (1990), 241 Mont. 524,

788 P.2d 316. Here, the State contends that the photographs were

offered to prove the means by which the victims were killed and to

corroborate the testimony of other inmates who described what they

heard or saw occurring in D Block. Although the photographs were

very graphic depictions of the assaults committed against the

victims, the State notes that they were only exhibited during the

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

take these photographs into deliberations.

In this instance, the court concluded that the probative value

of the photographs was not outweighed by the danger of unfair

prejudice. 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 jurors' passions any more than other evidence of

Gollehon's conduct. As we stated in 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." We, therefore, hold that the District Court did not

abuse its discretion when it admitted the autopsy photographs into

evidence.

IV.

Did the District Court err when it denied defendant's motion

for mistrial on the basis of juror misconduct?

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In the course of the trial of this matter, a brief

conversation occurred among one, or possibly two, jurors and a

correctional officer who was providing security at the courthouse

and who had testified earlier in the trial. After the presiding

judge was notified of the conversation, Gollehon moved for a

mistrial due to juror misconduct. The officer was questioned in

chambers and he testified that the conversation concerned the

Montana State University football team. He stated that the

conversation occurred when two persons were waiting outside the

courtroom near his security post, and that he did not realize they

were members of the jury. Based on this testimony, Gollehon's

motion was denied.

On appeal, Gollehon contends that the court improperly denied

this motion, and that it erred by not examining the jurors in

addition to the security guard. He asserts that the discussion

among the jurors and a witness constituted juror misconduct which

gives rise to a presumption of prejudice to Gollehon. The burden

is then on the State to rebut this presumption, and testimony of

the juror(s) is the appropriate method to determine if prejudice

resulted. Here, because the State did not examine the jurors, he

contends there was no evidence to rebut the presumption of

prejudice and the court improperly denied his motion.

The standard of review for reversing a lower court's denial of

a motion for mistrial requires clear and convincing evidence that

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the trial court's ruling was erroneous. State v. Gambrel (1990), 246

Mont. 84, 803 P.2d 1071; state%salOiY (1988), 235 Mont. 276, 766 P.2d

1306. Because the trial court is in the best position to observe

the jurors and determine the potential for prejudice when

allegations of jury misconduct are raised, the court has

significant latitude when ruling on these matters, and its

determination is given considerable weight by this Court. State v.

Eagen (1978), 178 Mont. 67, 582 P.2d 1195.

Citing this Court's holding in Eagen where we stated that jury

misconduct tending to injure the defendant creates a rebuttable

presumption of prejudice, Gollehon contends that a presumption of

prejudice remains in this case because the State failed to examine

the jurors and relied only on the testimony of the security guard.

However, we have recently made clear that the burden of rebutting

a presumption of prejudice shifts to the State "only after there

has been a threshold showing of misconduct which injures or prejudices

the defendant." Statev.McNatt (1993), 257 Mont. 468, 472, 849 P.2d

1050, 1052-53. In this instance, we find no initial showing that

the conversation resulted in prejudice against Gollehon. The

conversation was a brief, casual interchange right outside the

courtroom doors, and these circumstances do not suggest a degree of

impropriety which would have warranted examining those jurors or

declaring a mistrial. The District Court was in the best position

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to evaluate the incident, and in the absence of a showing of

prejudice, we will defer to the court's determination that the

alleged jury misconduct did not entitle Gollehon to a mistrial. We

conclude that the court's denial of the motion for mistrial was not

clearly erroneous.

V.

Did the State's destruction of certain physical evidence deny

defendant his constitutional right to due process of law?

When prison officials regained control of the maximum security

unit on September 22, 1991, all of the inmates who had participated

in the riot were required to strip and immediately leave the

building. Prior to trial, Gollehon's counsel requested that

certain items of physical evidence, including the clothing worn by

the maximum security inmates, be produced for inspection. The

State responded to this discovery request by stating that the

inmates' clothing had been destroyed after the riot. The State

noted that, contrary to defense counsel's understanding, clothing

issued to maximum security inmates had no identifying marks which

would allow it to be traced to any particular inmate.

On appeal, Gollehon asserts that he was denied a fair trial

because the State failed to produce what could have been powerful

exculpatory evidence for his defense. It is his contention that

the absence of blood on his clothing would have established that he

had not engaged in the struggles with the inmates who were killed

15
and that the State's destruction of this evidence resulted in

substantial prejudice to him.

The State first argues that Gollehon failed to properly raise

this issue at the trial court level because no motion to dismiss

was made. Therefore, the State asserts that this issue is waived

on appeal. After considering the circumstances of this case,

however, and the fact that rulings in regard to the production of

this evidence were made during the trials of the other rioting

inmates, we conclude that Gollehon's motion in limine sufficiently

preserved the issue for consideration by this Court.

However, after reviewing the record, we do not find that the

destruction of the inmates' clothing provides a basis for reversing

Gollehon's conviction. This Court has made clear that a criminal

defendant has a right to obtain exculpatory evidence, but his right

is personal and does not require that police officers take

initiative or even assist in procuring evidence on behalf of a

defendant. Statev.Sadowski (1991), 247 Mont. 63, 79, 805 P.2d 537,

546. Although the denial of one's right to obtain exculpatory

evidence is a violation of due process, a defendant must show a

deliberate or intentional suppression of exculpatory evidence in

order to claim a per se violation of due process. Sadowski , 805 P.2d

at 547. Furthermore, there must be a showing that the evidence in

question meets the test for constitutional materiality as adopted

in Statev.Halter (1989), 238 Mont. 408, 777 P.2d 1313:

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Whatever the duty the Constitution imposes on the State

to preserve evidence, that duty must be limited to those

that might be expected to play a significant role in the

suspect's defense. To meet this standard of constitutional materiality . . . evidence must both possess an

exculpatory value that was apparent before the evidence

was destroyed, and be of such a nature that the defendant

would be unable to obtain comparable evidence by other

reasonably available means.

Halter, 777 P.2d at 1316 (quoting Califomiav. Trombetta (1984), 467 U.S.

479, 488-89, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422).

In this instance, there is no showing that the clothing was

destroyed with the knowledge of its potential exculpatory value or

with the intent of deliberately suppressing valuable evidence. It

is clear that the objective of ordering the inmates to strip was to

get the unit under control and to restrain the rioting inmates from

further violence. Even if Gollehon had been able to establish the

absence of blood on his clothing, this would not necessarily have

vitiated his accountability for the deaths of the inmates during

the riot according to the statute with which he was charged.

We conclude that the destruction of the clothing does not

constitute a deliberate suppression of valuable exculpatory

evidence and Gollehon was, therefore, not constitutionally deprived

of his right to due process.

The judgment of the District Court is affirmed.

J tice

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We concur:

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