State v. Cox

• Decision Date: 09 August 1994
• Docket Number: No. 93-114,93-114
• Citation: 879 P.2d 662,266 Mont. 110,51 St.Rep. 680
• Parties: STATE of Montana, Plaintiff and Respondent, v. Gary Allen COX, Defendant and Appellant.
• Court: Montana Supreme Court

Page 662

879 P.2d 662

266 Mont. 110

STATE of Montana, Plaintiff and Respondent, v. Gary Allen COX, Defendant and Appellant.

No. 93-114.

Supreme Court of Montana.

Submitted on Briefs June 24, 1994.

Decided Aug. 9, 1994.

J. Mayo Ashley, William F. Hooks, Appellate Defender's Office, Helena, for appellant.

Joseph P. Mazurek, Atty. Gen., John P. Connor, Jr., Pamela P. Collins, Asst. Attys. Gen., Helena, Christopher Miller, Powell County Atty., Deer Lodge, for respondent.

HARRISON, Justice.

Appellant Gary Alan Cox (Cox) appeals the Third Judicial District Court, Powell County, jury verdict convicting him of two counts of kidnapping, pursuant to § 45-5-302, MCA; burglary, pursuant to § 45-6-204, MCA; and five counts of deliberate homicide pursuant to § 45-5-102(1)(b), MCA, the felony murder rule. We affirm.

The following issues are presented on appeal:

1. Did the District Court abuse its discretion when it denied Cox's motion for an expert on prison conditions to assist with his compulsion defense?

2. Did the District Court err when it concluded that Cox was not denied due process when unmarked prison clothing was not preserved after the riot?

3. Did the District Court abuse its discretion when it denied Cox's motion to dismiss his felony murder charges?

4. Did the District Court abuse its discretion when it admitted into evidence autopsy photographs of the five protective custody victims?

A prison riot occurred at Montana State Prison on the morning of September 22, 1991. The riot began in the Maximum Security Unit (Unit) of the prison just after the morning exercise period when a sergeant and four floor officers were returning three inmates from exercise Yard Area number 5 to their cells. The Unit is a separate building which housed sixty-eight inmates, including Cox, at the time of the riot. The Unit consisted of six housing blocks referred to by the letters A through F. Each Block consisted of sixteen cells. Exercise Yard Area number 5 was part of the interior open-air exercise area located within the confines of the Unit. At both ends of the Unit there were control cages guarded by officers who controlled "sally port" doors from the inside of these cages. (The sally port doors are designed for added security so that each door opens independently, allowing the first door to close before the second one opens onto a Block.)

On the morning of the riot, the officer guarding the west or "main" control cage opened the sally port doors to allow the three inmates back from the exercise area onto C Block. The west control cage guard testified that as he was opening the C Block doors, he noticed that eight or nine inmates, including Cox, were running through the door from the exercise yard and entering the Unit. The inmates had gained access to this area due to the fact that the chain link fence surrounding Yard 5, one of six interior open-air exercise areas, had been "worked" by some of the inmates over a period of time in order to weaken it and eventually allow them access through it. In addition, the first sally port door which led from Yard 5 into the building had not been immediately closed before the second inside door opened onto C Block.

According to some members of the prison community, the riot was not a spontaneous decision. The fact that the chain link fence had been "worked" indicates that at least some of the inmates were alert to possible opportunities to take action--although specific plans may not have been formulated. Although Cox testified that he had not helped to "work" the fence prior to the day of the riot, he did admit to participating in a plan to "cause a little ruckus, tear some stuff up and draw attention to the conditions in Maximum Security." He also admitted to prying open the fence on the day of the riot.

As the first inmates gained entrance into the Unit, one of the inmates propped open the electronic door, leading from the corridor to the inner door of the Unit, with a sand bucket used for cigarette butts. This enabled more inmates to enter the building. Some of the inmates attempted to enter the control cages. The two guards at these control cages, fearing for their lives, eventually exited through the escape hatches on the roof. The inmates continued their attempts to gain access to the control cages which contained the keys to the other cells. Although the control cages were protected by plexiglass shields, some of the inmates burned holes through the plexiglass of the east cage door and retrieved the cell keys inside. Later, inmates also gained access to the west cage. Eventually they were able to open all of the cell and Block doors to release the other inmates.

During the riot, the ten inmates on D Block of the Unit were particularly fearful because of their special status within the prison system. These inmates had been designated "protective custody" status due to the prison administration's determination that they were in need of protection from other inmates for either providing information to the prison administration on other inmates, or because the types of crimes they had committed characterized them as being at risk within the prison hierarchy. These inmates were designated "close security" classification which entailed more freedom than "maximum security" classification. Because these inmates were cooperative within the prison system and did not have to be handcuffed or restrained outside of their cells, they were assigned special supervised tasks such as cleaning the Unit and doing the laundry. They were allowed more material privileges and possessions than the Maximum Security inmates, for example, they were permitted to have canned sodas and were allowed to wear khaki pants and shirts as distinguished from the Maximum Security inmates who were forced to wear orange jumpsuits.

According to the prison warden, protective custody inmates were housed in the same building as the Maximum Security inmates because the building was equipped with security devices, and, other than that building, there was no other viable option. The warden testified that in most state prison systems there are separate facilities for these inmates, but that the Montana prison system lacked sufficient funding to accommodate such a facility.

During the course of the riot, as the inmates were overtaking C Block, five stranded floor officers took refuge in lower C Block's shower area which consisted of a three-by-five foot cubicle. In order to further secure themselves inside this one-person shower area, they stuffed a water-soaked mattress in front of themselves and locked the door with the shower padlock. The mattress had become soaked by the automatic sprinkler system due to fires started by the inmates. Eventually, all of the cell mates on C Block were freed. The five officers had no other option than to remain in this tiny shower throughout the course of the riot in order to protect themselves.

While the five officers were taking refuge in the shower area, two protective custody inmates, also fearing for their lives, barricaded themselves in the west laundry room for protection from the rioting maximum security inmates. The two protective custody inmates did not expect to survive the riot. While barricaded inside the laundry room, one of them wrote a list, on the clothes dryer, of five names of maximum security inmates. These were the names of the inmates who were, allegedly, threats to the lives of the two protective custody inmates. Cox's name was on that list.

As the riot continued, the prison administration attempted to decipher the situation and develop a plan of action. The warden, ultimately responsible for the decision about when to enter the Unit, alerted the Disturbance Control Team, which consisted of specially trained correctional officers. At approximately 2:00 p.m., they entered the Unit through the escape hatches on the roof since the doors to the Unit were barricaded. They came out into the west end of the Unit, and regained control of the Unit one Block at a time, beginning with C Block. After retaking Blocks C, B, and A, the captain encountered a protective custody inmate who informed him that his friends in D Block were being murdered. The captain and another officer searched D Block and found the bodies of five protective custody inmates. They also found another inmate who was still alive but whose throat had been slit. After securing D Block, the captain posted an officer at D Block to prevent tampering or destruction of evidence at the crime scene, and alerted the Criminal Investigation Bureau of the Department of Justice about the victims in D Block.

Because of the destruction done to the Unit, the inmates were moved to another area of the prison for several weeks. That afternoon, agents from the Criminal Investigation Bureau went through the Unit and collected evidence, and then notified the State Crime Lab in Missoula which, in turn, sent investigators. Autopsies were performed on the five deceased inmates, and it was determined that the causes of death were either multiple blunt force traumas to the head, ligature strangulations, incise wounds to the necks, or combinations thereof.

The riot lasted approximately four hours. Other than the two officers who escaped onto the roof, the five officers locked in the one-person shower in C Block, were the only correctional officers in the Unit who witnessed the events of those four hours. Several maximum security inmates, including Cox, were eventually charged and convicted for their roles in the riot of September 22, 1991.

I

Did the District Court abuse its discretion when it denied Cox's motion for an expert on prison conditions to assist with his compulsion defense?

Trial courts have broad discretion to determine the relevancy of evidence. We will not overturn this determination unless the District Court abused its discretion. State v. Hall (1990), 244 Mont. 161, 169, 797 P.2d 183, 188.

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