                             NO.        93-067

           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     1994


STATE OF MONTANA,
          Plaintiff and Respondent,


DOUGLAS DUANE TURNER,
          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 Office,
                Helena, Montana
          For Respondent:
                Hon. Joseph P. Mazurek, Attorney General,
                Elizabeth S. Baker and John P. Connor, Jr.,
                Assistant Attorneys General, Helena, Montana
                Christopher G. Miller, Powell County Attorney,
                Deer Lodge, Montana


                                                    Submitted:    April 28, 1994
       MAY 2 4 1994                                    Decided:   May 24, 1994

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                                          Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Defendant/appellant, Douglas Duane Turner, appeals from a jury
verdict in the Third Judicial District Court,                     Powell   County,

convicting him of kidnapping by accountability, a felony, and five

counts    of    deliberate    homicide       under   Montana's     felony-murder

doctrine.      Appellant is an inmate at the Montana State Prison where

he was present during the riot on September 22, 1991, in which five

inmates were killed.

     We affirm.
     Appellant raises three issues on appeal:
     1.        Did the District Court err when it failed to dismiss the

felony-murder deliberate homicide convictions after the jury

returned an inconclusive verdict on the burglary charge because the

State failed to establish the underlying felony or prove a causal

connection?

     2.        Did the District Court err when it failed to grant

appellant's motion to dismiss on the ground that the State failed

to preserve evidence?

     3.        Did the District Court err when it permitted the State to

exhibit autopsy photographs of the five deceased inmates?

     On September 22, 1991,          the Montana State Prison housed 68

inmates in the maximum security unit.            Ten of these inmates were in

"protective custody" (PC) in D Block.            The inmates had been placed
in PC because their safety was in jeopardy from the other inmates

at the prison.       Within   the   maximum    security   unit,    non-protective

custody inmates were allowed access only to that part of the


                                         2
building where they were housed,        unless escorted through other
areas in cuffs by corrections officers.          PC inmates had more
privileges and less restrained access within the unit.
        The maximum security unit of the Montana State Prison is a
rectangular building divided into six living blocks and two central
control cages.    Each block has two levels, with eight cells on each
level.     The west side of the building contains the main control
cage and Blocks A, B, and C.           The east side of the building
contains the satellite control cage and Blocks D, E, and F.        The
two control      stations   in the maximum security unit       contain
electronic consoles which control all of the unit's gates and
cell-block doors.     The consoles contain keys that are used to shut
off the power to the consoles.    The main control cage is located in
the center of the west half of the maximum security unit, and
controls operations for Blocks A, B, and C, and other portions of
the building.     The satellite control cage controls operations for
Blocks D, E, and F, and is located in the center of the east half
of the unit, across the exercise yards from the west side of the
unit.    The cages are enclosed in glass.
        On September 22, 1991, as was routine, thirteen maximum
security inmates were escorted by five correctional officers to the
exercise yard of the maximum security unit.       The exercise yard is
located in the center of the unit, and includes six 20' x 30' cages
enclosed with chain-link fencing.       Only three inmates are allowed
to exercise in one cage at a time.




                                   3
        On the morning of September 22, 1991, some inmates removed

some chain links from the fencing of the exercise cage without
notice by the correctional officers.      Removal of the chain links

created a hole in the fencing of the exercise cage.               The

correctional officers came to the yard to escort the inmates back

to their cells.    They began with Yard Area Five because one of the

inmates in that cage told the officers he needed to use the

bathroom.    The five officers working the floor of the unit that day

escorted three inmates from Yard Area Five to C Block, where the

inmates resided.

        At that time,   nine of the ten inmates remaining in the

exercise yard came through the openings in the exercise cage

fencing,     and into the west side of the maximum security unit

building which housed the main control cage.    When the correctional

officer working the main control cage noticed the inmates rushing

in, he radioed to the command post that there was a riot.     Several
of the escaping inmates beat on the cage doors and windows with a

telephone and a fire extinguisher.      The inmates were yelling as

they went.     The inmates shattered the window on the outside of the

cage.    At that point the officer feared for his life and scaled the

ladder out of the cage and escaped onto the roof where he locked

the hatch from the roof.    The officer operating the satellite cage

controls began to close the chain-link gate which separates the

east and west portions of the building.

        Appellant was the first inmate to enter the east side of the

building.     He picked up a bucket and placed it in the path of the


                                   4
closing      gate, which propped it open.         The   correctional   officer

controlling the satellite cage called the control center for help.
Then appellant ran to the east cage and smashed the cage windows

with     a    chair.      This   officer   also    feared   a   face-to-face

confrontation with the inmates and escaped through the roof hatch,

leaving behind the console keys.

        Meanwhile,     the five officers who had escorted the three

inmates to C Block became locked in C Block, and took refuge inside

a 3' x 5'      shower room and locked the door with a padlock.             The

officers remained in the shower for the duration of the riot--about

three hours.
        The D Block inmates who were in PC were freed from their cells

by the inmates controlling the door latches at the satellite cage.

The PC inmates began breaking up broom handles for weapons to

protect themselves in the event the rioters got the Block doors

opened.      They built a barricade on one staircase leading from the
lower to the upper level of D Block.        However, the rioters entered
D Block through the upper           level and took the PC inmates by

surprise.      All the PC inmates were beaten by the rioters and five

of them were killed.

        Testimony at trial placed appellant on D Block during the

riot.     He was seen by one of the beaten PC inmates walking around

with William Gollehon checking to see if the PC inmates were dead,

and approaching the cell of one of the PC inmates who was killed.

Another PC inmate testified that appellant and Gollehon attempted

to hang another PC inmate from the railing of the upper level of


                                       5
D Block.    They were unsuccessful in that attempt and eventually
pushed him off the upper level to the floor 18 feet below, which
resulted in his death.
     Appellant also was identified as one of the rioters who
attacked two other PC inmates,        and threw one over the D Block
railing.    This inmate also died as a result of his injuries.
Numerous other witnesses placed appellant in D Block going through
the fire doors and attacking other PC inmates.
     Appellant testified and admitted to involvement in the riot,
including the planning of the riot, the escape from the yard,
placing the bucket in the doorway between the east and west sides
of the building,    and beating on the east control cage windows.
However,   he denied ever going onto D Block during the riot and
denied any     involvement in   causing    injury to other inmates.
Appellant called witnesses who also were inmates charged with
offenses as a result of the riot,         and who testified only that
appellant was not on D Block during the riot.
     The riot was quelled by the prison's Disturbance Control Team,
which entered the building at approximately 2:00 that afternoon.
     On February 3, 1992, appellant was charged by information in
the Third Judicial District Court with Count I, kidnapping by
accountability,    in violation of §§ 45-5-302 and 45-2-302, MCA;
Count II, burglary, in violation of § 45-6-204, MCA; and Counts III
through VII,   deliberate homicide, five counts, in violation of
§ 45+-102(1)(b), MCA (the felony-murder rule).




                                  6
     The jury trial commenced on July 17,            1992.      During   jury
deliberation,       the jury presented the District Court with the
following inquiry regarding the burglary charge:
     Can a person be innocent of burglary yet accountable to
     said burglary, therefore guilty of deliberate homicide by
     means of Instructions 24 through 28, part l?
The court answered and stated to counsel for the record:
     In that regard, Instruction 24 through 28 read, in
     pertinent part, "That to convict the Defendant of the
     charge of deliberate homicide set forth in Count,-- of
     each particular Count of the Information, the State must
     prove the following elements:     #l, that the Defendant
     committed or is legally accountable for the commission of
     burglary."   The Court has previously told the Jury that
     under Count 2, the Defendant has not been charged with
     accountability for burglary.    The question then arises
     whether or not the Defendant can be convicted of
     deliberate homicide given the instructions as read into
     the record at this time. The Court proposes to answer
     the question of the Jury with a simple yes.
     At the end of the deliberations, the jury advised the court
that it was unable to reach a unanimous verdict on the burglary
charge.     Thereafter, appellant moved the court for a mistrial as to
the burglary charge and the five counts of deliberate homicide on
the grounds that the conviction of the underlying burglary was
necessary     for    conviction    of   deliberate   homicide    under   the
felony-murder       statute,   5   45-5-102(1)(b), MCA, and State v.
Weinberger (1983), 206 Mont. 110, 671 P.2d 567. On July 28, 1992,
the court ordered the parties to file simultaneous briefs regarding
defendant's motion to dismiss. On August 10, 1992, appellant also
filed a motion to set aside the verdict, again on the grounds that
the conviction of the underlying burglary was necessary for
conviction of deliberate homicide under the felony-murder statute


                                        7
and Weinberaer.      Appellant argued that unless the burglary count
was charged by accountability, the jury could not return guilty
verdicts on the five felony-murder counts because it did not reach
a unanimous decision on the underlying charge.              The State replied
that it was not necessary that the jury find that appellant
actually committed the burglary by being present on D Block with
the intent to riot.         Instead, the State argued that in order to
find appellant guilty of the homicides under the felony-murder
rule,    it only had to provide evidence sufficient for the jury to
find that appellant aided or facilitated the commission of the
offense of burglary.
        On September 15, 1992, the District Court denied appellant's
motion to set aside the verdict.           The court found that the jury had
been instructed properly on accountability, and that failure by the
jury to return a verdict on the burglary charge did not require
dismissal of the five convictions of deliberate homicide.
        On October 8,       1992,   the District     Court proceeded with
sentencing without objection.         Also on October 8, 1992, the State
moved the District Court to dismiss the burglary count with
prejudice.      On October 13, 1992, the court temporarily dismissed
the burglary charge, without prejudice.            On October 14, 1992, the
court entered its judgment and sentenced appellant to a term of ten
years in the Montana State Prison for the kidnapping conviction,
and to a term of life imprisonment on each of the five counts of
deliberate      homicide,     for a    total of      five    terms   of   life
imprisonment.      The five life terms imposed for the charges of


                                       8
deliberate homicide are to run concurrently, but run consecutively

to the term imposed for the kidnapping conviction, and the sentence
previously imposed for which appellant was already incarcerated.

       On September 24, 1992, appellant petitioned this Court for a

writ of supervisory control to review an order of the District

Court authorizing retrial on the burglary count which could violate

the double jeopardy protection of the Constitution and 5 46-11-503,

MCA.    Turner v. District Court of the Third Judicial Dist. (1992),

NO.    92-460, Montana Supreme Court.   This Court denied the writ on

November 2, 1992, because by the time of sentencing, the State had

moved to dismiss the burglary charge with prejudice, and because it
did not intend to retry that charge,        appellant was no longer

subject to the possibility of double jeopardy.

       After appellant's application for writ of supervisory control

had been denied by this Court, on November 10, 1992, the District

Court granted the State's motion of October 8, 1992, to dismiss the
burglary charge with prejudice.

       On November 12, 1992, appellant filed a notice of appeal with

this Court.     On February 8, 1993, the District Court ordered the

appellate defender as substitute counsel of record on appeal.

                                ISSUE 1

       Did the District Court err when it failed to dismiss the

felony-murder deliberate homicide convictions after the jury

returned an inconclusive verdict on the burglary charge because the

State failed to establish the underlying felony or prove a causal

connection?


                                   9
     Appellant     argues    that    the   deliberate       homicide     charges    were

based on an uncharged predicate felony, burglary by accountability,

which was not tried or submitted to the jury.                      He    asserts    that

because those charges were based instead on burglary, the State had

to prove that either he or any person legally accountable for the
burglary killed another person during the course of the burglary.

He asserts that the jury's failure to return a verdict on the

burglary charge established that the State failed to sustain its

burden of proof.      Further, he asserts that the blank verdict form

constitutes an acquittal of the burglary charge, and thus mandates

reversal of the deliberate homicide convictions.

     Finally, appellant argues that for three reasons, the evidence

did not sufficiently              establish     that   he    committed      attempted

burglary.     First, appellant's act of propping open the door to gain
access to the east side of the building did not constitute unlawful

entry or remaining in an occupied structure (D Block), pursuant to

the burglary statute.        Second, appellant was not the only inmate to

help prop open the door.            Third, appellant submits that the State

failed   to   establish     the    requisite    causal      connection    between    his

alleged felonious act and the deaths.

     The felony-murder statute provides:

     (1)      A person commits the offense of deliberate homicide
     if:

           ibj 'he attempts to commit, commits, or is legally
     accountable for the attempt or commission of robbery,
     sexual intercourse without consent, arson, burglary,
     kidnapping, aggravated    kidnapping, felonious escape,
     felony assault, aggravated assault, or any other forcible
     felony and in the course of the forcible felony or flight


                                           10
     thereafter, he or any person legally accountable for the
     crime causes the death of another human being.
Section 45-5-102(1)(b), MCA.
     Under the court's instruction pursuant to this statute and the

wording    in the information,      the jury could have found that

appellant either committed burglary or was legally accountable for

its commission.     The charging document mirrored the language of the

felony-murder     statute.    Each deliberate homicide count read as

follows:
     On or about the 22nd day of September, 1991, at Montana
     State Prison, Powell County, State of Montana, the above-
     named defendant, with the purpose of promoting or
     facilitating the offense of burglary, aided, abetted or
     attemnted 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, the
     defendant or other persons legally accountable for said
     burglary, caused the death of . . . . [Emphasis added].

Appellant does not argue that the burglary and deliberate homicide

verdicts are inconsistent.      Instead, he asserts there was a failure

to convict on the predicate felony which now requires reversal of

the deliberate homicide convictions.

     We have held that an underlying felony in a deliberate

homicide pursuant to         § 45-5-102(1)(b), MCA, is not a      lesser-

included offense, but is a distinct offense.       State v. Kills on Top

(1990), 243 Mont. 56, 92, 793 P.2d 1273, 1297. Appellant's charges

of burglary and felony-murder are distinct offenses and not

inconsistent.

     Although we said in Weinbercrer     that "half of the felony murder

rule is a felony," it does not follow from this statement that

there must be a conviction for that felony.         See   Weinberaer, 671

                                    11
P.2d at 580.    In Weinberser, Adam Weinberger was charged with two

counts of deliberate homicide.    In Count I, Adam was charged with
aiding and abetting his father, Arrow Weinberger, in causing a

death,    pursuant to 55 45-5-102(1)(a) (deliberate homicide) and

45-2-302(3), MCA (1978) (when accountability exists). In Count II,

Adam was charged with felony-murder, pursuant to   §§ 45-5-102(1)(b)

(felony-murder rule), 45-4-103 (attempt), and        45-5-202(1)(c)

(aggravated assault), MCA (1978).     Adam's father shot and killed

the victim while Adam attempted the crime of aggravated assault

against the victim.   Because of the manner in which Adam Weinberger
was charged and the jury was instructed, the jury was required to

acquit him of one of the two charges.    Implicit in the Weinberser

jury's acquittal of Adam of the aiding and abetting charge was a

finding that he and his father had not agreed to kill the victim.
We found that the evidence supported the jury's finding, and after

we examined the other charge--the underlying felony of attempted

aggravated assault--we concluded that the evidence did not support

the felony-murder conviction either.

     In Weinberaer, we clarified that the basis for our decision

was the State's failure to prove that the defendant was engaged in

an attempt to commit a felony.    Weinberser,   671 P.2d at 580. We

noted that a completed attempt or completed felony was not required

in order for the felony-murder rule to apply. Weinberger, 671 P.2d

at 580.    A conviction under the felony-murder rule requires that

the evidence support a finding as to each element of deliberate

homicide including the underlying offense, not that there be a


                                 12
conviction for a completed felony.                      This    principle    is    consistent

with our decision in Weinberaer.                      There the State failed to prove

the underlying offense.

     Accountability          for       the      deliberate       homicides     means       that

appellant played an active role in facilitating the commission of

the burglary.        See State v. Fish (1980), 190 Mont. 461, 471, 621

P.2d 1072,       1078.           In the case on appeal,                the        jury   heard

overwhelming     proof      of    appellant's          participation   in    the    plan    and

design of the underlying felony and intent to riot.                            In addition,

the jury heard overwhelming substantial credible evidence so as to

make appellant chargeable for the incident of the homicides by

accountability        and        for    several of            the homicides         directly.

Appellant admitted to blocking the entrance gate to the east side

of the building which facilitated at least some other inmates in

committing the homicides in D Block.                        Even though the jury did not

find appellant guilty of knowingly committing the burglary, it is
consistent that appellant could still be found guilty of attempting

to aid others in the commission of a burglary which resulted in

death of other human beings.                          In light of such overwhelming

evidence   of    appellant's           guilt,    we will not overturn the jury's

conviction      of   deliberate         homicide       by    accountability.       The   State

introduced proof beyond a reasonable doubt that appellant promoted

or facilitated the offense of burglary by aiding and abetting or

attempting to aid and abet other inmates in maximum security in the

planning or commission of the burglary.




                                                 13
       We also disagree that the jury's inconclusive verdict on the

burglary charge established that the State failed to sustain its
burden of proof, and therefore, mandates reversal of the homicide

convictions.
       Appellant argues that under Weingeraer    a blank verdict form is

a   not-guilty   verdict.   We    disagree.     The jury in Weinberaer

returned an inconclusive verdict as to Count I,              finding    Adam

neither guilty nor not guilty of aiding and abetting Arrow in the
death.     This Court regarded the inconclusive verdict as one of not

guilty, as it was so treated by the parties and was not disputed.
Weinberser,    671 P.2d at 568.   Also,   Weinberaer   is   distinguishable

from this case because Weinberger's       two charges were pled in the

nature of alternative charges, where the conviction of one charge

required the acquittal of the other.

       The meaning of the jury's blank verdict in this case has no

impact on the ultimate issue because we know why the jury intended

to leave the verdict form blank on the burglary charge.                After

deliberations, the jury communicated to the court that it left the

jury verdict form blank on the burglary charge because it was

unable to reach a unanimous verdict.       The record shows that during

jury     deliberations, the jury asked the court:       "Can a person be

innocent of burglary yet accountable to said burglary, therefore

guilty of deliberate homicide . . . ?'I The court responded in the

affirmative.     We cannot speculate on how or why the jury failed to

reach a verdict on the burglary charge.         We decline to define the




                                    14
meaning of a blank verdict form in any given case or state a

general rule.
        Finally, appellant asserts that the State did not sufficiently

prove that he committed burglary.                  He asserts that his initial act

which facilitated the entry onto D Block by others could not

establish entry or            remaining in           an occupied structure.           We

disagree.        In a companion case from the September 22, 1991, prison

riot,    we held that D Block is an occupied structure.                         State v.
Gollehon (Mont. 1993),            864 P.2d 1257, 1262, 50 St. Rep. 1564, 1567.

We said that D Block is an independent area of the maximum security

unit which is separately secured and that Gollehon's                    entrance into

that structure for the purpose of committing an offense therein

constituted a burglary.                Appellant's    actions   of   escaping    through
the chain-link fencing and propping open the door to gain access to

D Block made him accountable for the unlawful entry into D Block by
other inmates.          Proof that he unlawfully entered or remained in

D Block was not necessary to find him so accountable.                     Appellant's
assertion that the State failed to provide proof that he was

accountable for burglary because he was not the only inmate to help

prop open the door is without merit.

        Finally,      appellant's contention that the State failed to

establish the requisite causal                    connection between his alleged

felonious act and the deaths is without merit.                       Appellant    argues

that    *'more    than a mere presence              at the scene of a crime is

necessary        to   establish    criminal       responsibility."     (quoting Fish,
621 P.2d at 1078).                In   addition,     he asserts that Montana law


                                             15
requires the presence of a causal connection between the felonious
act and the death.    State ex rel. Murphy v. McKinnon (1976), 171
Mont. 120, 127, 556 P.2d 906, 910.
     Montana law defines a causal relationship as the cause of a
result if without the conduct the result would not have happened.
Section 45-2-201, MCA.      The record shows that appellant was more
than merely present at the scene of the crime.     He facilitated the
burglary when he propped open the entrance gate to the east side of
the building.   In addition, Montana's felony-murder statute itself
supplies the causal connection element by requiring that the death
occur "in the course of the forcible felony or flight thereafter."
Section   45-5-102(1)(b),   MCA.   The evidence was that the deaths
occurred in the course of the burglary--a felony that appellant
facilitated when he secured the inmates' access to D Block by
propping open the east entrance gate.      The State established the
requisite causal connection between appellant's felonious act and
the deaths.
     Regardless of the inadequate explanation for the jury's blank
verdict on the burglary charge, the     record   contains   overwhelming
substantial credible evidence to support the jury's verdict of
guilty for the homicide charges.        The question is not whether
appellant was convicted of the burglary charge, but whether the
deliberate homicide convictions were       supported by substantial
credible evidence as to each element of that offense.        The record
shows such evidence was provided the jury.




                                   16
      We hold that the District Court did not err when it failed to
dismiss the felony-murder deliberate homicide convictions after the

jury returned an inconclusive verdict on the burglary charge.

                                     ISSUE 2

      Did the District Court err when it failed to grant appellant's

motion to dismiss on the ground that the State failed to preserve

evidence?
      Appellant argues that he was denied due process when he was

prejudiced by the State's failure to preserve his coverall clothing
and tennis shoes worn during the riot.            Appellant claims that the

evidence was material and exculpatory, and would have tended to

clear him of guilt and vitiate his convictions.             Appellant   asserts

that in a riot situation where the actors are unknown, the clothing

and personal effects upon which blood spatters and other matter

would be found, would tend to help establish who participated and

who did not.      Appellant argues that the State's failure to preserve

this evidence was negligent and warrants dismissal of the homicide

charges.

      Once prison officials secured the maximum security unit after

the riot, inmates in the unit were stripped of their clothing, and
the   clothing    was   eventually   discarded.     Removal of the inmates'

clothing is standard tactical procedure in order for officers to do

a thorough and quick inspection for weapons which could be hidden

on an inmate's person, and to ensure the safety of the officers and

the other inmates.           At the time the control team began this

procedure,       it   was   not   aware   that   inmates   had   been   killed.
Investigators initially made some effort to examine some of the
clothing        for   identification,      but   abandoned     the     effort    upon
realizing the impossibility of the task.                  Testimony    reveals    that
the     inmates'      orange   coveralls were      strewn about the maximum

security        building,   and inmates had changed clothing frequently
during the disturbance.

        This issue and the facts and circumstances presented here are

identical to those presented in Gollehon.                  In Gollehon, we held

that      the     destruction     of    the    inmates'     clothing      from    the
September 22, 1991, riot did not provide a basis for reversing the
defendant's        convictions.     Our holding in this case is the same.

        In Gollehon, we said that a defendant must show a deliberate

or intentional suppression of exculpatory and constitutionally

material evidence in order to claim a per se violation of due

process.        Gollehon, 864 P.2d at 1264-65 (citing State             v. Sadowski

(1991),     247 Mont. 63, 79, 805 P.2d 537, 547; and State v. Halter

(1989) r    238 Mont. 408, 412, 777 P.2d 1313, 1316).                  In order to

vitiate     a    conviction,    "negligently     suppressed    evidence    must    be

material        and of substantial use,          vital to the defense,             and

exculpatory."         Sadowski, 805 P.2d at 547.

        We still are convinced that the inmates' clothing was not

constitutionally        material.      There was no showing that the clothing

was destroyed with the knowledge of its potential exculpatory value

or that the evidence was of such a nature that appellant would be

unable to obtain comparable evidence.               & Gollehon, 864 P.2d at

1265.      We still are convinced also that the prison officials'


                                          18
objective    when "ordering the inmates to strip was to get the unit

under control and to restrain the rioting inmates from further

violence."     See Gollehon,    864 P.2d at 1265.         Finally,      appellant

failed to show that even if he had been able to establish the
absence of blood on his clothing or that any blood was his own, he

failed to establish that the evidence would have vitiated his

accountability for the deaths of the inmates during the riot.
     We hold that the District Court did not err when it denied

appellant's motion to dismiss on the ground that the State failed

to preserve his clothing.
                                   ISSUE 3

     Did the District Court err when it permitted the State to

exhibit autopsy photographs of the five deceased inmates?
     Appellant asks that we reconsider this issue, identical to one

raised in Gollehon, and reverse our holding.          Appellant argues that
certain      autopsy   photographs     admitted       into        evidence     were
inflammatory, which unduly and unfairly prejudiced him because the

prejudice    outweighed   the   probative    value.    He asserts that the

autopsy photographs were neither relevant and probative to the

kidnapping    charge, nor   substantially     necessary      or   instructive     on

any material fact or condition in issue.         Finally, appellant argues

that the evidence was cumulative because the State already had

presented photographic evidence of the victims' identities, and of

the damage and destruction in the building lobby,                  guard     control

cages, hallways, catwalks, and offices.




                                     19
       As in Gollehon, the State introduced 20 autopsy photographs

during the medical examiner's testimony, which depicted the five
slain inmates.      In Gollehon, we held that although the photographs

depicted   the    brutality    and   viciousness      of   the   crimes    committed,
they were admissible.          Gollehon,        864 P.2d at 1263.        They did not

arouse the jurors' passions any more than other evidence of the

defendant's      conduct.     Gollehon, 864 P.2d at 1263.           We also stated

that we would "not demand that a trial be sanitized to the point

that important and probative evidence must be excluded." Gollehon,

864 P.2d at 1263.      Recently, we affirmed this standard in State v.

Mergenthaler (Mont. 1993), 868 P.2d 560, 564, 51 St. Rep. 13, 16.

       The trial court properly admitted autopsy photographs during

the medical examiner's testimony.               As in Gollehon, the photographs

were    displayed       during       the    medical        examiner's       testimony

approximately 10 to 15 feet from the jury box.                     The    photographs

were not individually handed to the jury in any fashion, and at the
conclusion of the testimony were sealed and did not go to the jury

room during deliberations.

       Appellant was not prejudiced by admission of the photographs.

The photographs' probative value outweighed any prejudice because
they fairly and accurately represented relevant evidence, even

though they depicted brutality and viciousness.                  The evidence was

used to corroborate much of the inmates * testimony concerning the

actions of appellant and others during the riot, the credibility of

which was hotly disputed at trial.




                                           20
     The   photographs    were   not   cumulative   because   they   were

necessarily instructive for purposes of explaining the medical

examiner's testimony with respect to the autopsies performed.         The

photographs simplified the examiner's task of attempting to explain

the victims' injuries to the jury.       Finally, the photographs had

probative value because a jury is entitled to know the nature and

extent of the injuries.    State v. Henry (1990),    241Mont. 524, 531,

788 P.2d 316, 320.

     We hold that the District Court did not err when it permitted
the State to exhibit autopsy photographs of the five deceased
inmates.

     In our reading of the entire record of this case, from the

filing of the information against appellant to the final judgment

of the court, it is clear that appellant had a fair trial.

     We affirm.




We concur:
Justice James C. Nelson did not participate in this decision.




                               22
                                           May 24, 1994

                                  CERTIFICATE OF SERVICE

I hereby certify that ti 1e following certified order was sent by United States mail, prepaid, to the
following named:


William F. Hooks
Appellate Defender
Capitol Station, PO Box 200145
Helena, MT 59620-0145

Hon. Joseph P. Mazurek, Attorney General
Elizabeth S. Baker, Assistant
John Conner, Special Prosecutor
215 N. Sanders, Justice Building
Hetena, MT 59620

Lnrmop”e.r MUKX
County Attorney
Powell County Courth
Deer Lodge, MT 59X-

                                                      ED SMITH
                                                      CLERK OF THE SUPREME COURT


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