                            NO.    93-413
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994


STATE OF MONTANA,
          Plaintiff and Respondent,
    v.
ROBERT TERRANCE WILD,
          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:
               William F. Hooks, Appellate Defender Officer,
               Helena, Montana
               John C. Schulte, Missoula, Montana
          For Respondent:
               Honorable Joseph P. Mazurek, Attorney General;
               John P. Connor, Jr., Special Prosector;
               Elizabeth Griffing, Assistant Attorney General;
               Helena, Montana
               Chris Miller, Powell County Attorney, Deer
               Lodge, Montana


                              Submitted on Briefs:   June 30, 1994
                                            Decided: September 15, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     Robert Wild was convicted of burglary, two counts of kidnap-
ping, and five counts of deliberate homicide in a jury trial in the
District Court for the Third Judicial District, Powell County. He
appeals.    We affirm.
     The issues are:
     1.     Did the District Court err in denying Wild's motion to
suppress the statement he made to Agent McKay?
     2.     Did the court err in informing the potential jurors at
voir dire that the death penalty would not be imposed in this case?
     3.     Did the court err in denying the motion to dismiss the
felony murder homicide charges on grounds that the State failed to
prove the necessary causal connection between the burglary and the
subsequent deaths?
     4.    Did the court err in denying Wild's motion to dismiss on
grounds that the State failed to preserve evidence?
     5.     Did the court err in admitting into evidence autopsy
photographs of the five deceased inmates?
     On September 22, 1991, nine inmates in the maximum security
unit at the Montana State Prison cut their way through wire fences
in the exercise yard and stormed the guardsf control cages in the
building.    Robert Wild was one of those inmates.   Eventually, the
inmates gained access to and control of the entire maximum security
unit, including cellblock D, where inmates in protective custody
(PC) were housed for their own safety from other inmates.
                                  2
     By the time corrections officers regained control of the
building four hours later, five PC inmates had been beaten,
stabbed, and asphyxiated to death. Two more PC inmates survived by
barricading themselves inside a laundry room.        Five unarmed
correctional officers took refuge during the riot inside a three-
foot by five-foot shower room.   They were not physically injured.
     The information filed against Wild charged him with aiding,
abetting, or attempting to aid other inmates in kidnapping the
correctional officers by restraining them with threats of physical
force in the cellblock C shower room. The second count of kidnap-
ping alleged that Wild aided, abetted, or attempted to aid other
inmates in kidnapping the two PC inmates by restraining them in the
laundry room with threats of physical force.   The burglary charge
alleged that Wild knowingly entered or remained unlawfully in an
occupied structure, cellblock D of the maximum security unit, with
the purpose to commit an offense therein, namely riot.    The five
counts of deliberate homicide alleged that during the burglary,
Wild or other persons legally accountable for the burglary caused
the death of each of the five PC inmates who were killed.
     Wild was found guilty of all of the above crimes after a five-
day jury trial.   He now appeals on five grounds.
                              Issue 1
     Did the District Court err in denying Wild's motion to
suppress the statement he made to Agent McKay?
     An analysis of the voluntariness of a confession is a factual
question which must take into account the totality of the circum-
stances. State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196,
1208.     Our standard of review is whether the District Court's
findings are clearly erroneous.    State v. Bower (1992), 254 Mont.
1, 7, 833 P.2d 1106, 1110.

        Immediately after correctional officers regained control of
the maximum security unit at the prison, state investigator Ward
McKay began conducting individual interviews with the surviving
prisoners who had been housed in that unit and the correctional
officers on duty just before the riot.    McKay spoke with Wild on
September 24, 1991.
        In his statement to McKay, Wild admitted being in on the
planning of the September 22 incident for quite some time before-
hand.     He said, "I know I'm going to be charged with something."
McKaylsnotes indicate that Wild said he watched the phones and the
front gate during the riot and that he did some damage to offices,
but that he did not go onto       cellblock D.   (No less than six
inmates contradicted this statement at trial, testifying that they
observed Wild on cellblock D during the riot.)   In his statement to
McKay, Wild said that he "didn't give a fuck what was going on in
D block," and that the "fucking child molesters deserved to die."
He also admitted to threatening the guards in the shower that he
would "burn them out" if they did not give him the keys to the
exercise yard.
                                  4
     Wild moved to suppress evidence concerning his statement to
McKay on grounds that the statement was involuntary because of the
coercive nature of the situation.      He submitted an affidavit in
which he professed that, at the time he was interviewed, he had not
slept or eaten in forty-eight hours.    In his affidavit, he stated
that he was given no choice but to talk to the investigator and
that he had no clothes but was just covered with a blanket.     He
related that he was frightened because he was being separated from
the other inmates and he was afraid of being beaten by the guards.
He also stated that, when he refused to speak to the investigator,
he was threatened with the death penalty.
     Wild did not testify in person at the hearing on the motion to
suppress, relying solely on his affidavit. The State presentedthe
testimony of Agent McKay and prison investigator Thomas Balaz, who
was present when Wild was interviewed.
     Agent McKay testified that, at the beginning of the interview,
he immediately advised Wild in detail of his rights and told him
that he was not under arrest and that he could ask to go back to
his cell immediately.   McKay testified that Wild said, "I know I
can have an attorney present and I may want one, but I'll tell you
when I do."     McKay asked Wild what he could remember about
September 22, 1991. Wild made a rambling narrative statement, with
McKay asking few questions, but just listening and taking notes.
Wild seemed excited and seemed to want to tell McKay certain
things.   Eventually, Wild said, "I know I'm going to be charged
                                 5
with something, so I better have a lawyer.''   McKay testified that
he then terminated the interview.
     Agent McKay further testified that at the time he interviewed
Wild, McKay had been eating the same food served to the inmates
since the riot. He testified that they had been fed cold food such
as rolls, fruit, juice, milk, sandwiches, and chips.     He stated
that Wild was wrapped in a blanket at the interview and that he
could not see what, if anything, Wild was wearing under the
blanket.
     Thomas Balaz verified much of what Agent McKay said.       He
testified that Wild seemed excited but not frightened during the
interview. He also testified that Agent McKay's demeanor was calm
and quiet during the interview.
     The court denied the motion to suppress, stating:
          It appears from the evidence presented that the
     statement--the defendant's statement was voluntarily
     given.   The defendant was thoroughly advised of his
     rights and chose to speak to authorities, and when he
     determined to terminate the interview, the interrogation
     was stopped.
          It appears that the defendant has not offered any
     contrary evidence.    The Court tends to discount the
     affidavit of the defendant when he is available to
     testify and has chosen not to do so, and did not subject
     himself to cross-examination on the issue.
We agree with the District Court.   The affidavit of Wild, absent
the opportunity for cross-examination, is not entitled to as much
weight as the live testimony of McKay and Balaz.
     [Tlhe affidavit has to be accepted for what it actually
     is--a self-serving document drawn by [the defendant's]
     attorney.   The general rule is that affidavits "are
     commonly regarded as weak evidence, to be received with
     caution,Irand that "they are not conclusive of the facts
     stated therein even though not contradicted by counter-
     affidavits." 32A C.J.S. Evidence § 1032 at 706.
Audit Services v. Kraus Constr., Inc. (1980), 189 Mont. 94, 103,
615 P.2d 183, 188.
     Wild also points to an entry in the handwritten notes made by
McKay during the interview:   "Reg. [sic] Attny.   -   eventually." He
asserts that this proves that his statement was involuntary.
However, Agent McKay explained this notation in his testimony to
the court.   He stated he initially believed Wild was beginning to
request an attorney at the outset of the interview, and began to
write that down.     It then became clear to him that Wild was not
requesting an attorney at that time.    McKay testified that when
Wild eventually did assert his right to an attorney, the interview
was terminated.
     The totality of the circumstances as demonstrated in the
evidence before the District Court reveals that Wild was informed
of his rights and voluntarily waived them and that he was capable
of understanding the meaning and consequences of his statements.
The evidence further establishes that Wild made a narrative state-
ment to McKay which was not extracted by detailed questioning.
     We hold that the District Court did not err in denying Wild's
motion to suppress the statement he made to Agent McKay.
                              Issue 2
     Did the court err in informing the potential jurors at voir
dire that the death penalty would not be imposed in this case?
     Each of the five deliberate homicide charges against Wild
carried a potential punishment of death. However, before voir dire
began, the presiding judge informed the jury panel:
     I would also advise you that this is not a capital case
     and the State is not seeking to have a death penalty
     imposed.
Wild argues that this violated the rule against informing a jury of
the possible range of sentences available, citing State v. Herrera
(1982), 197 Mont. 462, 643 P.2d 588.
     In State v. Dawson (Ariz. App. 1989), 783 P.2d 1221, the
Arizona Court of Appeals acknowledgedthat it is generally improper
to inform a jury about the potential punishment a defendant faces
upon conviction.   Dawson, 783 P.2d at 1222.   However, and noting
that other courts have drawn the same conclusion, the Arizona court
found no error, I1fundamentalor otherwise,Itin informing the jury
that a defendant does not face the risk of a death sentence if
convicted.    The court recognized that a jury panel might include
members disposed against capital punishment.    It approved of the
trial court's efforts to relieve the risk that jurors so disposed
might be distracted in considering issues of guilt by the concern
that, in the event of a guilty verdict, the death penalty might
result.      The appellate court agreed with the trial court's
assessment that by advising the jury up front that the State is not
                                 8
requesting the death penalty as punishment, a broader-based jury
may be retained.
     We agree with and adopt the reasoning of the Arizona court.
Here, the District Court did not advise the jury panel what the
potential range of sentences was; it simply told the panel this was
not a death penalty case.   Further, Wild has not established that
he was prejudiced by the judge's statement.        We hold that the
District Court did not err by informing potential jurors the death
penalty would not be imposed in this case.
                               Issue 3
     Did the court err in denying the motion to dismiss the felony
murder homicide charges on grounds that the State failed to prove
the necessary causal connection between the burglary and the
subsequent deaths?
     Wild maintains in his opening brief that the State failed to
adequately prove a causal connection between the plan to enter
cellblock D for the purpose of rioting and the deaths of the five
inmates who were killed.    He does not refer to, nor did the Court
locate, any motion addressed to this subject at trial.
     Wild's trial counsel made a general motion to dismiss at the
close of the State's case for failure of the prosecution to prove
its case beyond a reasonable doubt.      However, that motion was not
sufficient to apprise the District Court of the theory now raised
or to allow the District Court an opportunity to rule upon this
issue.   Absent contemporaneous objection, this issue has not been
                                  9
properly preserved for appeal and we will not consider it further.
See State v. Losson (1993), 262 Mont. 342, 351, 865 P.2d 255, 260.
                             Issue 4
     Did the court err in denying Wild's motion to dismiss on
grounds that the State failed to preserve evidence?
     This issue addresses the failure of the State to preserve the
clothing shed by the inmates when they were ordered to strip for a
security search at the end of the riot.   The issue was decided in
State v. Gollehon (1993), 262 Mont. 293, 304-05, 864 P.2d 1257,
1264-65; and was further addressed in State v. Close (Mont. 1994),
(Cause No. 93-370, Decided September 15, 1994).   Wild concedes the
issue is raised here only to preserve it for further proceedings.
     We reaffirm our conclusions in Gollehon and Close.    We hold
that the District Court did not err in denying the motion to
dismiss.
                             Issue 5
     Did the court err in admitting into evidence autopsy photo-
graphs of the five deceased inmates?
     This Court ruled that the photographs at issue were admissible
in Gollehon, 864 P.2d at 1263.       This case is different, Wild
maintains, because the medical examiner stated in response to
cross-examination that he could present his testimony without the
autopsy photos.
     However, the medical examiner also testified in this case that
the photos were necessarily instructive and essential in enabling
                                10
the jury to understand the nature of the injuries and that the
photos simplified his task of explaining to the jury the injuries
the victims had suffered.   The photos were carefully selected as
the best representations of the injuries sustained by the victims.
     The autopsy photographs served, additionally, to corroborate
testimony by inmates whose credibility was hotly contested at
trial. Various inmates testified as witnesses for the State about
different kinds of assaults which occurred upon the victims.    We
hold that the District Court did not abuse its discretion in
balancing the probative value of the autopsy photographs against
their prejudicial value, and in admitting them into evidence.
     Affirmed.




We concur:
