No. 84-543 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

STATE OF MONTANA, Plaintiff and Respondent,

-vsCOURTNEY BROOKE ATLAS, Defendant and Appellant.

APPEAL FROM: DistrictCourtof theFirstJudicialDistrict, Inand forthe Countyof Lewis & Clark, TheHonorable GordonBennett, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Jackson Law Firm; GregoryJackson argued, Helena, Montana

For Respondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana JamesM. Scheier argued, Asst. Atty. General, Helena MikeMcGrath, CountyAttorney, Helena, Montana

Submitted: October 9, 1986 Decided: November 18, 1986

Filed:

### ja3~ 18

### 1986

i. ClerkMr. Chief Justice J. A. Turnage delivered the Opinion of the Court.Defendant Atlas appeals from a jury conviction of deliberate homicide and arson in the First Judicial District Court, Lewis and Clark County. On August 10, 1985,Atlas was designated a dangerous offender and sentenced to 120 years imprisonment with no parole. We affirm. Defendant Atlas raises six issues for our review: 1. Did substantial evidence support the verdicts of guilty? 2. Does the destruction of potentially exculpatory evidence by the State require reversal ofAtlas' conviction? 3. Did the DistrictCourt err when it allowed testimony of a crematorium operator about the effects of cremation

on the human body? 4. Did the District Court err when it allowed videotaped testimonyby Atlas1 former lover aboutAtlas' extramarital affair? 5. Did the District Court err when it sustained the State's objection to Atlas1 cross-examination of the coroner about motive and bias? 6. Did the District Court err when it refused Atlas1 InstructionNo. 10,which stated that an unexplained fire is presumed to be accidental? Defendant Atlas was 41 years old and resided in the Helena valley with hiswife,Donna,and their son, Brian, and daughter,Michelle. Defendant filed forbankruptcy in early 1983. Atlas was the beneficiary of casualty homeowners' insurance and Donna's life insurance, totaling approximately $250,000.At 5:18 a.m. on Sunday,July 17, 1983, firefightersand sheriff's officers responded to a fire at the Atlas residence. Thehouse burned to theground. At 7:45 a.m. on July 17, firefighters discovered the charred remains of Donna Atlas in the living room. Two days prior to the fire, Donna and Michelle had traveled to Donna's parents' ranch near Wisdom, Montana. Donna planned to stay through the weekend and leave Michelle for the remainderof the summer. DefendantAtlas remained in Helena. Brian was at a Lions' Camp near Elliston,Montana. Donna planned to pick up Brian on her return trip to Helena

on Sunday,July 17. However, Donna received a phone call fromdefendant on Saturday afternoon, July 16. Donna appeared upset after the call. She immediately returned to Helena, alone and one day early. Herburned body was found sixteen hours later. Defendant contends that the evidence against him is circumstantial and not sufficient to support a conviction. We will discuss the evidence in detail in the course of this opinion. However,we note that defendant's statements about the events of Saturday night and Sunday morning are riddled with contradictions. Saturday evening, while Donna waited outside in Atlas' truck, defendant told an acquaintance that he had justpicked Donna up at the hospital and that she had terminal cancer. Donna did not have cancer. Defendant told investigators that Donna had a sore back, yet also testified that Donnahelped him slide a large couch through anupstairs opening, then helped him carry it around the house and into the downstairs. Defendant told investigators that Donna started a fire in the basement stove because the night was cool, yet testified that he shifted bedrooms because thenight was so hot. Defendant changed his story several times aboutwhich bedroom he used on Saturday night. Upon noticing the fire, defendant testified that he crawled through thick, choking smoke. However, no witness

saw any ash on him, heard him cough from the smoke's effect,

or smelled any smoke on defendant's clothing. The jury did not accept several of defendant's explanations: why he did not break the locked sliding glass door to the living room and help Donna;why he did not unlock the sliding glass door with the spare key kept next to the door; or why he did not enter through a second door, located on the same floor and on the same side of thehouse. Throughout the investigation and trial, defendant Atlas' statements varied inmajor detailsand conflictedwith other witness' testimony. These variances and defendant's explanations were fullypresented to the jury for its consideration as the fact-findingbody.

IssueNo. 1 Did substantial evidence support the verdicts of guilty? The substantial evidence test is whether a reasonable person would accept the conclusion,when viewed in the light most favorable to the prevailing party. State v. Wilson

(Mont. 1981), 631P.2d 1273, 1278, 38 St.Rep. 1040, 1047. The evidence in defendant's trial was primarily circumstantial, there being no witnesses to the homicidal-act or the arson. If circumstances are capable of two interpretations, the trier of factdetermines which is the most reasonable. A careful review of the trial transcript convinces us that the evidence fully supports the defendant's convictionof deliberate homicide. The State's two pathologists and defendant's pathologist testified to the severe thermal damage to Donna'sbody,which was found on theburned remains of the stuffed couch. The State's pathologist testified that such damage is unusual without the use of accelerants. He indicated an accelerant may have been applied to the body because 90 percent of the body was completely charred. Both parties' experts agreed that Donna's airway had no soot or thermal damage. Furthermore, Donna's blood and tissue had less than 10 percent carbon monoxide. The State's pathologists concluded that the lack of soot in the windpipe and minimal carbon monoxide indicated that Donna was dead before the fire began. The thiocyanate level in Donna's tissuewas compatible with the pathologists' conclusions, because her body was exposed to the heat, the falling debris, and the firefighters' water. In addition, she was found lying face up with limbs spread,while most firevictims are found face down in a fetal position. The State's pathologists also testified that the pulmonary edema in Donna's lungs could have resulted from strangulationand that her throatmay have been cut out. Defendant's fire expert based much of his opinion on interviews with the defendant. The expert did not personally examine any tissue, did not interview any firefighters, and did not consult any fire investigators. Yet, he concluded that Donnawas alive during the fire. The jurymay appropriately attach lessweight to his testimony. In summary, the evidence of deliberate homicide is substantial and supports defendant's conviction. "This [substantialevidence] test is met if a reasonablemind would accept the evidence as supporting the conclusionreached.

# ..If the evidence conflicts, it is within the province of the trier of fact to determine which shall prevail." State v. Oman (Mont. 1985), 707 P.2d 1117, 1120, 42 St.Rep. 1565, 1568. On the issue of arson, the deputy state fire marshal secured the area where Donna'sbody was found,which was also the area of origin of the fire. For several days, he hand-sifted through the debris. The state firemarshal also inspected the fire scene. Both fire marshals eliminated the heating pad under Donna, the wood stove in the living room, any electrical short,and acts of God as causes of the fire. They concluded that arson caused the fire. The fire marshals based their arson conclusion on several facts. The intenseheat far exceeded the temperature of a normal house fire, as indicated by the destruction of Donna's limbs and facialbones. The complete consumption of the carpet indicated that the floor temperature in the living

room reached at least 790°F., while a typical house fire has floor temperatures below 250°F. The one-hour fire wall between floors burned through in much less than one hour. The burn patterns along the baseboards and the even burn in the living room indicated the use of an accelerant. Defendant's own expert admitted that the "alligator patterns" on the charred wood were compatible with the use of flammable liquids. In summary, the evidence supports the defendant's conviction for arson. "The United States Supreme Court and this Court have both stated that a conviction cannot be overturnedwhen the evidence,viewed in the light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime beyond areasonable doubt." State v. Doney (Mont. 19811, 636 P.2d 1377, 1383, 38 St.Rep. 1707, 1713. Although circumstantial, the evidence is abundant and fully supports the defendant's convictionsofboth deliberate homicide and arson.

IssueNo. 2 Does the destruction of potentially exculpatory evidence by the State require reversal of defendant's conviction? Defendant contends that the materials in the living

room were shoveled three or four times and then dumped outside the building. He asserts that the materials directly under thebody were discardedwithout laboratory testing,and that the couch, the carpet, and the mopboards were not secured. Defendant further contends that the condition of the scene prevented his expert from examining the evidence and thus robbed defendant of his right to present a complete defense. However, Deputy Fire Marshal Houston carefully preserved any burned material with evidentiary value, while removing non-evidentiary material from the fire site. The firemarshal hand-sifted the evidentiary debris with a garden trowel. Thebaseboard remnants were preserved in an evidence locker,alongwith the electricalwiring. The carpet-backing foundbeneath Donna'sbody tested free of accelerantsandwas carefully set to the side. The front-end loader,which was used to clean up the fire scene, never entered the living

room area and never disrupted the evidentiarymaterial. The State showed great care and diligence in preserving all relevant evidence. The debris removed by the loader wasirrelevant and nonexculpatory. Furthermore, all the evidentiary material was available at all times for inspection by defendant's fire expert. We note that the fire expertbased his opinionprimarily on interviews with defendant, and prior to examining anyphysical evidence. Defendantclaims that thepiled debriswas exculpatory, yet offers no factual basis for its potential exculpatory

use. "In order to amoui~tto denial of due process, negligently suppressed evidence must be vital to the defense of the accused.

# ..To obtain a new trial, the accusedmust show more than suppression;hemust show the evidencewasmaterial and of some substantialuse to him.

### " State v. Craig (1976)

## , 169 Mont. 150, 153, 545 P.2d 649, 651. Defendant Atlas has shown neither negligent destruction nor vital material use. On the contrary,the State has showndiligent preservation of all relevant evidence. We find nomerit in this issue raised by defendant.

IssueNo. 3 Did the DistrictCourt errwhen it allowed testimony of

a crematorium operator about the effects of cremation on the humanbody? Before trial,defendantmoved for an 

### - in limineprohibition of the operator's testimony on the grounds of inflammatory prejudice and incompetence. He asserted that prejudicial testimony is admissible only if it accurately depicts conditions as they existed, and if it is useful to explain the evidence. Defendant further contended that the operatorhad no personal knowledge of Donna's remains. At trial, defendant argued that the thermal damage to Donna's body was more closely related to house fires than tocrematoriums. Defendant produced two pa.thologists, who testified that they had seen thermal damage similar to Donna's in other house fires. Defendant concluded that the slight relevance of the operator's testimony was outweighed by its gruesomeprejudice. The trial court questioned the State about the relevance of the operator's testimony. The State responded that the probative value of the testimony was supported by the operator's estimates of the time and high temperature necessary for the near-cremation of Donna'sbody. This testimony corroborated the fire marshal's estimates of the time and high temperature of the Atlas fire, thereby indicating accelerants and arson. The operator's testimony also supported the testimony of State's pathologists on the intense heat necessary to char Donna's bones. The operator's testimony was brief and clinical. Furthermore, the operator's testimonyon cremationwas a far less prejudicial alternative than the photographsof Donna's limb-lesscorpse. The question ofwhether theprobative value of evidence is outweighed by potential prejudice must be determined in the trial court's discretion. A DistrictCourt's weighing of potential prejudice against probative value will be upheld where there is no abuse of discretion. State 

### v. Pease, Jr.

(Mont. 1.986),724 P.2d 153, 161, 43 St.Rep. 1417, 1427. "We will not demand that a trial be sanitized to the point that im.portant 

## , probative evidence must be excluded.

### " State 17. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380. In summary,we find no abuse of discretion in the trial court's allowing the operator's testimony.IssueNo. 4 Did the District Court err when it allowed videotaped testimony by defendant's former lover about defendant's extramarital affair? In his opening statement, defense counsel portrayed Courtney Atlas as a loving husband frozenby grief. "At that time [of the fire] Mr. Atlas was basically so totally grief stricken that he was just unfunctionable and he wandered around crying andwhatnot andwaiting for the firedepartment and police to come as he watched everything he owned and the woman he loved burn in the fire." Prior to the videotaped testimony, defense counsel cross-examined several witnesses about Atlas' affection toward Donna. He asked one of Donna's co-workers: "Okay. So as far as seeing that there was a lack of emotional display in thepresence of otherpeople,you couldn't saywhether it was Courtney's disposition or Donna's disposition, could you?" He later asked another co-worker: "So as far as seeing any, you know, rea.1close affection flowing back and forth between Courtney and Mrs. Atlas, that wouldn't have been unusual forDonna,would it,not tohave been kissing or hugging inpublic?" Thevideotaped testimonywasmade by defendant's former lover, Diana Olson. On appeal, defendant contends that Olson's testimony was character evidence which had not been d.rawninto issueby defendant during trial,andwas therefore inadmissible under Rule 404(a), Mont.R.Evid. The State, however, used Olson's videotaped testimony as probative evidence to refute defendant's opening assertions and crossexaminations. Thus,defendant himself opened the door on the relevancyofAtlas as a lovinghusband.Furthermore,during thevideotaped cross-examinationof Olson, defense counsel attempted to minimize the impact of the affair onAtlas' marriage: Q. And during the time that there was involvement between the two of you, there has never been any commitment by Courtney that he was going to leave Donna-- A. No. Q. 

## -- for that relationship. A. No. After Olson's testimony,defense counsel continued his theme of defendant as a loving husband. On direct examination ofdefendant,he asked: Q. How would you describe your relationshipwith Donna then over theyears? A. I think as an average pretty good, because of our similar interests. I would call it a good

## --we, Ithink,had ups and downs like anybody, butwe had a pretty good, pretty good relationship



# ... 9. And did you love Donna? A. Yes,very much. Throughout defendant'sportrayal ofhimself as a loving husband, and the State's rebuttal of that portrayal, the trial court properly assessed relevancy. "The District Court hasbroad discretion to determine whether or not the evidence is relevant. Without a showing that the District Court has abused its discretion, this Court will not overturn the DistrictCourt's determination of relevancy." Statev. Oman,

The testimony about defendant's relationship with Olson

was also relevant to defendant's homicidal motive. We have previously held that the testimony of a defendant

### 's ex-lover

was admissiblewhen, "evidenceofdefendant's past intimacieswas highly relevant to the defendant's claim that he killed [his wife] in theheat ofpassion upon learning of her affair



# ... " State v. Doll (Mont. 1985), 692 P.2d 473, 478, 42 St.Rep. 40, 47. Defendant Atlas further contends that the videotaped testimony concerned an affair which was too remote in time. Defendant asserted that the affair's physical relationship had ended seven months prior to the fire. However, the remoteness in time goes to weight a.ndnot to admissibility. Even the remotenesswas questionable, because Olson testified that, although the physical relationship had ended seven months earlier,defendant continued to visit her house "just

as friend to friend.

### " In summary, Olson's testimony was relevant to rebuttal and motive. We find that the trial court did not abuse its discretion in allowing the videotaped testimony about defendant's extra-maritalaffair.

IssueNo. 5 Did the District Court err when it sustained the State s objection to defendant's cross-examination of the coroner about motive and bias? On State's direct examination, the coroner testified: "It is the worst, worst body that I have ever viewed. " On cross-examination,Atlas1 counsel asked: "Youdon't like Mr. Atlas?" The coroner responded: "Definitelynot." The State immediately objected. Defendant contends thathe was improperly cut short of his impeaching inquiry into the coroner's credibilityand hostile feelings. The court did not abuse its discretion by sustaining the State's objection. Defendant's cross-examination aboutthe coroner's bias went beyond the scope of the State's direct examination. The cross-examinationwas also irrelevant because it had no bearing on the condition of Donna's body. Furthermore, the sustained objection did not prevent defendant from pursuing a related line of inquiry. "The I-atitudeof cross-examination is in the discretion of the trial court, and this Court will not interfere unless it is manifest that the trial court abused its discretion." State

v. Gallaher & Coleman (1978), 177 Mont. 150, 159, 580 P.2d 930, 935. Also, if defendant thought that the objection cut him short,defendant could have called the coroner during his case-in-chief. Defendant Atlas suffered no prejudice as a result of the court's ruling, because the coroner answered before the State could interpose an objection. If,arguendo, the sustained objection was in error, it did not impair a substantial rightbecause the jury heard the answer. In either case, defendant failed to make any timely offer of proof about his cross-examination, in accordance with Rule 103(a)

## ,Mont.R.Evid. He raised the issue for the first time on appeal. As we have previousl-yheld: "This Court will not review a matter raised for the first time on appeal." Statev. Transgrud (1982), 200 Mont. 303, 308, 651 P.2d 37, 40.

IssueNo. 6 Did the District Court err when it refused defendant's InstructionNo. 10,which stated that an unexplained fire is presumed to be accidental?DefendantAtlas' proposed InstructionNo. 10 read: "You

are instructed that, ordinarily, itwill be presumed that an unexplained fire was caused by an accident or natural causes or,at least,that it was not of criminal origin." Defendant cited C.J.S. and Arn.Jur.2dr which collectively implied that an unexplained fire ispresumed to be accidental. Defendant claimed that the burden is on the State to overcome such a presumption, and that he was entitled to a specific instruction on thatpoint. The instructionwas properly refused because it incorrectly states the law. The i-nstruction language is an out-of-context summation of a larger discussion of arson in 6A C.J.S. $$§38 and 39. The full discussion reveals that the statementonly applies when no suspicious facts accompany the fire. At the Atlas fire, investigators found a plastic jug containing gasoline, several aerosol cans with holes punched in the bottoms, massive thermal destruction, and burn patterns indicating arson. Any presumption of a non-criminal fire is rebuttable by such evidence of criminal design. State v. Collins (Or. Ct. App. 1973), 511 P.2d 440, 442. Therefore, the instructionwasproperly denied. In conclusion, we note the exemplary conduct of the trial judge during a long and complicated trial. In addition, all trial counsel held to the highest standards of zealous advocacy. The issues raised by defendant, taken singly or as a whole, are not substantial enough to overturn defendant's conviction. The juryverdicts are affirmed.We concur:Mr. Justice John C. Sheehy,concurring in the result:

The court committed two errors in this cause, the unduly limited restriction on the cross-examination of the coroner, and two, the admission of testimony about an extra-marital affair. The latter is the most serious. There is no rational basis to assume without question that a man indulging in extra-marital sex does not really love his wife. The prejudicial effect of such testimony outweighed any probative effect the evidencehad,and shouldhave been excluded. The remaining evidence against the defendant is so weighty that I would regard these two errors as not significant. Therefore, Iconcur in the result.