                            NO.     93-370
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994



STATE OF MONTANA,
          Plaintiff and Respondent,
    v.
ROBERT DEE CLOSE,                                        SEP 15 49%
          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:
               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



                                  Submitted on Briefs:     June 24, 1994
                                              Decided:     September 15, 1994
Filed:
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).
     Closetsclaim 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 Closetsoffered 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 Gollehontsconduct. 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 substitut-
ed. 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 (l988), 230
Mont. 268, 272, 750 P.2d 103, 105.
     Close has not shown that the clothing he turned in 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
~usticeJames 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, compulsion, duress, or I t c W c e of twa/ evilstt
defense.
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 [ ( 1 9 8 6 ) , 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, t the
          o




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