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: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jackson Law Firm; Gregory Jackson argued, Helena, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

James M. Scheier argued, Asst. Atty. General, Helena 

Mike McGrath, County Attorney, Helena, Montana 

Submitted: October 9, 1986 

Decided: November 18, 1986 

Filed: ja3~ 18 1986 

i. Clerk 
Mr. 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 of Atlas' conviction? 

3. Did the District Court 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 testimony by Atlas1 former lover about Atlas' 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 

Instruction No. 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 his wife, Donna, and their son, Brian, and 

daughter, Michelle. Defendant filed for bankruptcy 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, firefighters and 

sheriff's officers responded to a fire at the Atlas residence. The house burned to the ground. 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 remainder of the summer. Defendant Atlas 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 from defendant on 

Saturday afternoon, July 16. Donna appeared upset after the 

call. She immediately returned to Helena, alone and one day 

early. Her burned 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 just picked 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 Donna helped him slide a large couch through an upstairs 

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 the 
night was so hot. Defendant changed his story several times 

about which 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 the house. 

Throughout the investigation and trial, defendant 

Atlas' statements varied in major details and conflicted with 

other witness' testimony. These variances and defendant's 

explanations were fully presented to the jury for its consideration as the fact-finding body. 

Issue No. 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), 631 P.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 fact determines which is the most reasonable. 

A careful review of the trial transcript convinces us 

that the evidence fully supports the defendant's conviction 
of deliberate homicide. The State's two pathologists and 

defendant's pathologist testified to the severe thermal 

damage to Donna's body, which was found on the burned 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 tissue was 

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 fire victims 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 strangulation and that her throat may 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 Donna was alive during the fire. The jury may appropriately attach less weight to his testimony. 

In summary, the evidence of deliberate homicide is 

substantial and supports defendant's conviction. "This 

[substantial evidence] test is met if a reasonable mind would 

accept the evidence as supporting the conclusion reached. . . 
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's body was found, which was also 

the area of origin of the fire. For several days, he 

hand-sifted through the debris. The state fire marshal 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 intense heat far exceeded the temperature 

of a normal house fire, as indicated by the destruction of 

Donna's limbs and facial bones. 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 

overturned when 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 a 
reasonable 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 convictions of both deliberate 

homicide and arson. 

Issue No. 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 the body were discarded without 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 

fire marshal hand-sifted the evidentiary debris with a garden 

trowel. The baseboard remnants were preserved in an evidence 

locker, along with the electrical wiring. The carpet-backing 

found beneath Donna's body tested free of accelerants and was 

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 evidentiary material. The 

State showed great care and diligence in preserving all 

relevant evidence. The debris removed by the loader was 
irrelevant and nonexculpatory. Furthermore, all the evidentiary material was available at all times for inspection by 

defendant's fire expert. We note that the fire expert based 

his opinion primarily on interviews with defendant, and prior 

to examining any physical evidence. 

Defendant claims that the piled debris was exculpatory, 

yet offers no factual basis for its potential exculpatory 

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

the accused. . . To obtain a new trial, the accused must show 

more than suppression; he must show the evidence was material 

and of some substantial use 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 shown diligent preservation of 

all relevant evidence. We find no merit in this issue raised 

by defendant. 

Issue No. 3 

Did the District Court err when it allowed testimony of 

a crematorium operator about the effects of cremation on the 

human body? 

Before trial, defendant moved for an - in limine prohibition 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 

operator had 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 to 
crematoriums. 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 gruesome prejudice. 

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's body. 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 

testimony on cremation was a far less prejudicial alternative 

than the photographs of Donna's limb-less corpse. 

The question of whether the probative value of evidence 

is outweighed by potential prejudice must be determined in 

the trial court's discretion. A District Court'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. 
Issue No. 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 frozen by 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 and whatnot and waiting for the fire department 

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 the presence of other people, you couldn't say whether 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.1 close affection flowing back and 

forth between Courtney and Mrs. Atlas, that wouldn't have 

been unusual for Donna, would it, not to have been kissing or 

hugging in public?" 

The videotaped testimony was made by defendant's former 

lover, Diana Olson. On appeal, defendant contends that 

Olson's testimony was character evidence which had not been 

d.rawn into issue by defendant during trial, and was 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 

relevancy of Atlas as a loving husband. 
Furthermore, during the videotaped cross-examination of 

Olson, defense counsel attempted to minimize the impact of 

the affair on Atlas' 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 of defendant, he asked: 

Q. How would you describe your relationship with Donna then over the years? 

A. I think as an average pretty good, 

because of our similar interests. I 

would call it a good -- we, I think, had 

ups and downs like anybody, but we had a 

pretty good, pretty good relationship ... 

9. And did you love Donna? 

A. Yes, very much. 

Throughout defendant's portrayal of himself as a loving 

husband, and the State's rebuttal of that portrayal, the 

trial court properly assessed relevancy. "The District Court 

has broad 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 

District Court's determination of relevancy." State v. 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 admissible when, "evidence of defendant's past intimacies 
was highly relevant to the defendant's claim that he killed 

[his wife] in the heat of passion 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.nd not to admissibility. 

Even the remoteness was 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-marital affair. 

Issue No. 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: "You don't like Mr. 

Atlas?" The coroner responded: "Definitely not." The State 

immediately objected. Defendant contends that he was improperly cut short of his impeaching inquiry into the coroner's 

credibility and hostile feelings. 

The court did not abuse its discretion by sustaining 

the State's objection. Defendant's cross-examination about 
the coroner's bias went beyond the scope of the State's 

direct examination. The cross-examination was 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-atitude of 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 right because 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-y held: "This 

Court will not review a matter raised for the first time on 

appeal." State v. Transgrud (1982), 200 Mont. 303, 308, 651 

P.2d 37, 40. 

Issue No. 6 

Did the District Court err when it refused defendant's 

Instruction No. 10, which stated that an unexplained fire is 

presumed to be accidental? 
Defendant Atlas' proposed Instruction No. 10 read: "You 

are instructed that, ordinarily, it will 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 is presumed 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 that point. 

The instruction was 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 

statement only 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 instruction was properly 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 jury verdicts 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 evidence had, and should have been excluded. 

The remaining evidence against the defendant is so 

weighty that I would regard these two errors as not 

significant. Therefore, I concur in the result.