IN THE SUPREME COURT OF THE STATE OF MONTANA

No. DA 10-0260

STATE OF MONTANA,

Plaintiff and Appellee,

v.

MILES CASSIDY KINGMAN,

Defendant and Appellant.

BRIEF OF APPELLEE

On Appeal from the Montana Eighteenth Judicial District Court,

Gallatin County, The Honorable Holly Brown, Presiding

APPEARANCES:

STEVE BULLOCK

Montana Attorney General

JONATHAN M. KRAUSS

Assistant Attorney General

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

MARTY LAMBERT

Gallatin County Attorney

TODD WHIPPLE

Deputy County Attorney

1709 W. College, Ste. 200

Bozeman, MT 59715

ATTORNEYS FOR PLAINTIFF

AND APPELLEE

JOSLYN HUNT

Chief Appellate Defender

SHILOH HERNANDEZ

Assistant Appellate Defender

139 North Last Chance Gulch

P.O. Box 200145

Helena, MT 59620-0145

ATTORNEY FOR DEFENDANT

AND APPELLANT

January 28 2011

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................. iii

STATEMENT OF THE ISSUES ......................................................................... 1

STATEMENT OF THE CASE ............................................................................ 1

STATEMENT OF THE FACTS .......................................................................... 3

SUMMARY OF THE ARGUMENT ................................................................. 17

ARGUMENT ...................................................................................................... 18

I. THE DISTRICT COURT PROPERLY, AND WITHIN ITS

DISCRETION, DENIED KINGMAN‟S MOTION FOR

CHANGE OF VENUE FOR PRETRIAL PUBLICITY. ......................... 18

A. Standard of Review ........................................................................ 18

B. Kingman Has Not Made the Requisite Showings That the

Pretrial Publicity in this Case was Inflammatory in Nature

and Actually Inflamed the Prejudice of the Community ............... 21 1. The Publicity Regarding Kingman‟s Case Was Not

Inflammatory........................................................................ 22

2. The Publicity Regarding Kingman‟s Case Did Not

Actually Inflame the Prejudice of the Community .............. 24

II. THE PROSECUTOR‟S ARGUMENT AT SENTENCING WAS

NOT PLAIN ERROR IN VIOLATION OF KINGMAN‟S

MONTANA CONSTITUTIONAL RIGHT TO DIGNITY .................... 30

A. Standard of Review and Applicable Law ...................................... 30

B. Kingman Raises His Objection to the Alleged Violation of

His Right to Dignity for the First Time on Appeal and Has,

Therefore, Waived It ...................................................................... 30

ii

TABLE OF CONTENTS

(Cont.)

C. Kingman Has Not Alleged Plain Error on Appeal and Has

Not Established the Threshold Showing Necessary for this

Court to Exercise Plain Error Review ............................................ 33

CONCLUSION ................................................................................................... 40

CERTIFICATE OF SERVICE ........................................................................... 41

CERTIFICATE OF COMPLIANCE .................................................................. 42

iii

TABLE OF AUTHORITIES

CASES

Armstrong v. State,

1999 MT 261, 296 Mont. 361, 989 P.2d 364 ................................................ 39

In re B.I. and N.G.,

2009 MT 350, 353 Mont. 183, 218 P.3d 1235 ........................................ 31, 33

In re C.H.,

210 Mont. 184, 683 P.2d 931 (1984) ............................................................. 39

Darden v. Wainwright,

477 U.S. 168 (1986)....................................................................................... 37

Irvin v. Dowd,

366 U.S. 717 (1961)........................................................................... 21, 26, 29

Jones v. State,

937 P.2d 55 (Nev. 1997) ................................................................................ 38

Maine v. Superior Court of Mendocino County,

438 P.2d 372 (Cal. 1968) ............................................................................... 28

In re Mental Health of K.G.F.,

2001 MT 140, 306 Mont. 1, 29 P.3d 485 ...................................................... 39

Snetsinger v. Montana Univ. Sys.,

2004 MT 390, 325 Mont. 148, 104 P.3d 445 ............................................... 39

State ex rel. Coburn v. Bennett,

202 Mont. 20, 655 P.2d 502 (1982) ............................................. 19, 20, 24, 25

iv

TABLE OF AUTHORITIES

(Cont.)

State v. Arlington,

265 Mont. 127, 875 P.2d 307 (1994) ............................................................. 37

State v. Bar-Jonah,

2004 MT 344, 324 Mont. 278, 102 P.3d 1229 ........................................ 26, 29

State v. Benson,

1999 MT 324, 297 Mont. 321, 992 P.2d 831 ................................................ 31

State v. Buck,

2006 MT 81, 331 Mont. 517, 134 P.3d 53 .................................................... 35

State v. Charlie,

2010 MT 195, 357 Mont. 355, 239 P.3d 934 ................................................ 30

State v. Davis,

2000 MT 199, 300 Mont. 458, 5 P.3d 547 .................................................... 32

State v. Devlin,

2009 MT 18, 349 Mont. 67, 201 P.3d 791 .............................................passim

State v. Ferguson,

2005 MT 343, 330 Mont. 103, 126 P.3d 463 ................................................ 35

State v. Finley,

276 Mont. 126, 915 P.2d 208 (1996) ............................................................. 34

State v. Fuhrmann,

278 Mont. 396, 925 P.2d 1162 (1996) ..................................................... 26, 29

State v. Gallagher,

2001 MT 39, 304 Mont. 215, 19 P.3d 817 .................................................... 34

v

TABLE OF AUTHORITIES

(Cont.)

State v. Gollehon,

274 Mont. 116, 906 P.2d 697 (1995) ............................................................. 21

State v. Haagenson,

2010 MT 95, 356 Mont. 177, 232 P.3d 367 .................................................. 32

State v. Hagen,

283 Mont. 156, 939 P.2d 994 (1997) ............................................................. 35

State v. Herrick,

2004 MT 323, 324 Mont. 76, 101 P.3d 755 .................................................. 39

State v. Hill,

2000 MT 308, 302 Mont. 415, 14 P.3d 1237 .......................................... 24, 25

State v. Jackson,

2009 MT 427, 354 Mont. 63, 221 P.3d 1213 ................................................ 34

State v. Link,

194 Mont. 556, 640 P.2d 366 (1981) ......................................................passim

State v. Longfellow,

2008 MT 343, 346 Mont. 286, 194 P.3d 694 ................................................ 35

State v. Merrill,

428 N.W.2d 361 (Minn. 1988) ...................................................................... 38

State v. Moore,

268 Mont. 20, 885 P.2d 457 (1994) ................................................... 21, 26, 29

State v. Olson,

156 Mont. 339, 480 P.2d 822 (1971) ....................................................... 19-20

State v. Paoni,

2006 MT 26, 331 Mont. 86, 128 P.3d 1040 .................................................. 31

vi

TABLE OF AUTHORITIES

(Cont.)

State v. Rosling,

2008 MT 62, 342 Mont. 1, 180 P.3d 1102 ........................................ 30, 35, 36

State v. Stringer,

271 Mont. 367, 897 P.2d 1063 (1995) ........................................................... 32

State v. Torgerson,

2008 MT 303, 345 Mont. 532, 192 P.3d 695 ................................................ 35

State v. Wakefield,

190 N.J. 397, 921 A.2d 954 (N.J. 2007) ........................................................ 37

State v. West,

2008 MT 338, 346 Mont. 244, 194 P.3d 683 .................................... 31, 33, 34

Walker v. State,

2003 MT 134, 316 Mont. 103, 68 P.3d 872 .................................................. 39

OTHER AUTHORITIES

Montana Code Annotated

§ 46-13-203(1) ............................................................................................... 21

§ 46-18-101 .................................................................................................... 36

§ 46-20-104(2) ......................................................................................... 31, 32

Montana Rules of Appellate Procedure

Rule 12(1) ...................................................................................................... 35

STATEMENT OF THE ISSUES

1. Did the district court properly, and within its discretion, deny

Kingman‟s motion for change of venue based on pretrial publicity?

2. Was the prosecutor‟s argument to the sentencing judge, which

included characterization of Kingman‟s criminal acts as “inhuman” and his

behavior in custody like that of a “caged animal,” plain error in violation of the

Montana constitutional right to dignity, requiring reversal of Kingman‟s

concededly legal sentence and resentencing by a new judge?

STATEMENT OF THE CASE

The State charged Appellant Miles Cassidy Kingman (Kingman) with felony

attempted deliberate homicide. (D.C. Docs. 1, 2, 3.) The State alleged that

Kingman, with the purpose of causing the death of Paul Overby, punched Overby

repeatedly in the head outside the Scoop Bar in Bozeman in the early morning

hours of September 17, 2008, nearly killing Overby and breaking almost every

bone in Overby‟s face. (D.C. Docs. 1, 3.)

Kingman waived speedy trial and the district court set trial for

November 2009. (D.C. Docs. 39, 40.) Nine months after his arrest, Kingman

moved for a change of venue based on news coverage of the case in local print and

broadcast media, and the State filed a response. (D.C. Docs. 92, 95, 98.) The

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district court approved the drawing of a jury panel of 150 jurors and approved a

jury questionaire including questions about potential jurors‟ knowledge of the

case, if any, obtained from the news coverage and the resulting effect, if any, on

their ability to serve as jurors. (D.C. Docs. 137 -144; see e.g., D.C. Doc. 141,

Ex. A at 8 (questions 36 & 37).)

After receiving the completed jury questionaires, the district court held a

hearing on the motion for change of venue. (D.C. Doc. 176; 9/21/09 Tr. at 1-32.)

On the parties‟ stipulation, the district court admitted the previously filed exhibits

and the completed jury questionaires as the only evidence for consideration of the

motion.1 (9/21/09 Tr. at 5.) The district court heard argument from counsel at the

hearing and, later, the parties filed proposed findings, conclusions, and orders.

(9/21/09 Tr. at 5-29; D.C. Docs. 221, 222.) The district court denied the motion

for change of venue. (D.C. Doc. 238.)

After a three-day trial the jury found Kingman not guilty of attempted

deliberate homicide and guilty of the lesser-included offense of felony aggravated

assault. (D.C. Doc. 296; Tr. at 520-21.) The district court sentenced Kingman to

1 See D.C. Doc. 145.1 (SEALED jury questionaires in large box filed 11/5/10).

Kingman generally makes reference to the district court‟s factual findings about the jury

questionaires and the tallied juror responses set forth therein, rather than direct reference

to the filed questionaires. (Br. of Appellant at 8, 34-35, 39 (citing D.C. Doc. 238,

Appellant‟s App. A), but see Br. of Appellant at 5 n.3.)

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the maximum prison term of 20 years in Montana State Prison; parole eligibility

conditioned on successful completion of drug and alcohol treatment, anger

management, criminal thinking errors, and cognitive principles and restructuring

programs; payment of restitution in the amount of $183,115.43; registration as a

violent offender; and credit for 559 days time served in jail. (D.C. Docs. 331, 332;

Sent. Tr. at 97.) The district court set forth its reasons for the sentence at length on

the record and in writing attached to the Sentencing Order. (D.C. Doc. 332; Sent.

Tr. at 77-78, 86-96.)

Kingman appealed. (D.C. Docs. 340, 342.)

STATEMENT OF THE FACTS

Facts of the Crime

Kingman and Ryan Dibert went out drinking in a number of Bozeman

bars--the Rocking R, Mixers, the Cats Paw, and then the Scoop. (Tr. at 429-30.)

When they left the Scoop Bar after 1 a.m., they were drunk and Dibert started

messing with a Moped that was parked in the alley behind the bar. (Id. at 431.)

Paul Overby, who had also been drinking that night, was returning to the Scoop

Bar and came upon Kingman and Dibert with the scooter, which Overby knew

belonged to his friend. (Id. at 216.) Overby approached Kingman and Dibert, and

yelled at them to leave the scooter alone. (Id. at 222-23, 431-32.) Overby

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confronted Kingman and Dibert and witnesses observed the three men yelling,

gesturing, and posturing. (Id. at 245, 285-86, 287-89, 292, 432-33.) A security

camera from the Scoop Bar captured images of Dibert and Kingman with the

scooter, Overby confronting them, and the three moving off-camera. (State‟s Ex.

10 (Camera 3 at 1:14 to 1:19), Tr. at 263, 267-68.) A security camera from the

Molly Brown Bar captured additional, but more distant and less clear, images of

the three men, pushing and shoving and then fighting. (State‟s Ex. 21 at 1:19 a.m.,

Tr. at 320-22.)

Despite Kingman‟s professed fear of Overby--Kingman said Overby “made

threats and was calling us names”--witnesses said Kingman first struck Overby as

Overby was turning away from Dibert and Kingman. (Tr. at 224, 246, 434-35.)

Kingman hit Overby from behind or the side, then punched him--“just one punch

that took him to the ground”--and Overby went limp. (Id. at 224, 246.) Kingman

continued to punch Overby in the face while he was on the ground, without any

resistance from Overby. (Id. at 224-25, 435.)

Brice Termes and Matt Nunberg witnessed the scuffle and the beating, and

yelled at Kingman to stop. (Tr. at 225, 226, 244-48, 435.) Kingman punched

Overby in the face very quickly “many, many, many, times over and over and over

again”--15, 20, 25 or 30 times. (Id. at 225, 247.) Overby did not fight back or

respond in any way to Kingman‟s punches. (Id. at 247, 451.) Kingman felt he had

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no choice but to beat Overby to the point of unconsciousness. (Id. at 435, 452.)

When Kingman stopped punching, witnesses said Dibert kicked Overby multiple

times in the body. (Id. at 226-27, 247-48.)

Kingman and Dibert fled, leaving Overby motionless in the alley. (Tr.

at 226, 248.) Termes and Nunberg went over to see if Overby needed help. (Id.

at 227.) They did not expect it to be as bad as it was--they couldn‟t really discern

Overby‟s face, it was like he had “just a cavity in the middle of his head.” (Id.

at 227, 248, 257.) Overby‟s breathing was not normal, more like wheezing, and he

coughed up something Termes had never seen “come out of a human being. It was

just pieces.” (Id. at 227-28.)

Nunberg called 9-1-1. (Tr. at 168, 228, 249.) Bozeman Police

Officer Joe Swanson was in the area and responded to the scene within minutes.

(Id. at 168-69, 171-72.) Overby‟s face was unrecognizable, it was covered in

blood, eyes swollen shut, and there was a large amount of blood and lacerated flesh

in his mouth. (Id. at 172, 174.) A gruesome photograph depicting the appearance

and condition of Overby‟s face after the beating was admitted at trial. (State‟s Ex.

5, Tr. at 196, 228, 311.)

Initially Overby was breathing, but then he stopped and Officer Swanson

was unable to find a pulse. (Tr. at 174, 197-98, 229-30.) Officer Swanson

commenced chest compressions and Overby started to breathe again, but with

6

difficulty, gasping and gurgling. (Id. at 198-99.) An ambulance arrived and

medical personnel took over the care of Overby. (Id. at 199.)

Overby was transported to the emergency room at Bozeman Deaconess

Hospital. (Tr. at 396.) Overby‟s injuries were severe, extensive, and life

threatening. (Id. at 399.) It took two anesthesiologists over an hour to intubate

Overby so that he could breathe. (Id. at 398.) Overby had massive facial fractures

to the vast majority of the bones in his face, bleeding into his mouth, airway

obstructions including teeth, blood, and vomit, and an open fracture to his brain

resulting in air inside his cranium. (Id. at 397-99.) The Bozeman emergency room

physician was surprised Overby had survived to make it into the emergency room,

and he was amazed Overby was getting any oxygen, because he was “breathing

through a pool of blood.” (Id. at 399, 403.)

Overby was flown to Billings due to the complexity of his injuries and the

need for a neurosurgeon consult, which was not available in Bozeman. (Tr.

at 400.) The Bozeman emergency room physician was surprised Overby survived

to be flown to Billings. (Id. at 399.) Overby spent a month in the hospital for

reconstructive surgeries and another month in rehab, and he had restrictions on his

activities for about a year, the “time frame it took everything to heal back

together.” (Id. at 382-84, 391, 393.)

7

When Kingman and Dibert left the scene of the beating, Kingman called his

friend Katelin Bieber for a ride--he told her he had been in a bar fight and needed a

ride out of town. (Tr. at 294-95, 319.) Kingman had a nasty cut on one of his

fingers, wrapped up with a blood soaked towel, and there was blood on his shirt

and his pants. (Id. at 297, 415, 419-20; see State‟s Ex. 36, Tr. at 409.) It appeared

to Bieber that Kingman was a “little bit hyped up and a little bit paranoid,” and she

said that the blood and the paranoia made the whole situation shocking and “a little

bit creepy.” (Tr. at 298-99.) Bieber took Kingman and Dibert to the Belgrade

home of Kingman‟s friends Zane and Josette Geer. (Id. at 298, 414, 418.)

Kingman started changing out of his bloody clothes as soon as they got there.

(Id. at 299, 301.) Bieber left the Geers‟ and reported Kingman to the police,

because she was suspicious and did not believe that Kingman was being truthful

about what had happened. (Id. at 299-300, 314.)

On the night of the assault, Kingman left a voicemail message for Zane Geer

that Geer turned over to police. (Tr. at 325-29, 437.) Kingman testified he called

Geer because they were both fans of ultimate fighting (UFC boxing) and he was

excited, pumped up on adrenaline, and wanted to relay that excitement and brag

about the fight. (Id. at 437-38, 452.) On that voicemail message Kingman said to

his friend:

8

Zane its Miles. Call me back dude. I beat this guy to death. I, there‟s

blood all over the house. In fact both of my legs have splatters of

blood on them. And my right hand, its split so fucking gnarly bad like

thank god I‟m drunk cause it would hurt horrible. I can‟t even wash it

out it hurts so bad. But oh, my god dude. Wait til you see my shoes

and my pants. I kicked the fuck outta this guy dude. I just stood over

him like fucking Chuck Ladell getting knocked out. Just one, two,

one, one, one, two. Just splatters over both my pants. I‟m never

washing them again dude. Yeah. Two knockouts in one night. I, oh,

my god dude. This guy‟s got brain damage. Oh, my god. I hit him so

fucking hard. Wait till you see my shoes, my pants and my shirt dude.

I got splatter to the face. It‟s like my face has fucking got blood

spatters from this mother fucker from hitting him so fucking hard on

the ground. Just, oh. Why aren‟t you answering the phone? And my

right fist is pretty fucking broke dude. I‟m pretty sure. I can‟t work.

I, I‟ll work tomorrow, but right fist is broke. It hurts horrible. But

it‟s, it‟s bleeding bad. Anyway, we‟re gonna send you pictures dude.

My hand. Oh, my god, I kicked this mother fucker to death dude. I

felt, oh, my god I wish you were there dude. Oh, ask Ryan dude. I

just fucking it sounded like I was like Rocky punching wet meat on

this mother. Everybody, 100 people around stop hitting him, he‟s

gone. I was just crack, crack, crack. Oh, this mother fucker. Oh.

I‟ve nev, oh god it feels so good. So good. Call me back when you

get this. Beep, beep, beep. I don‟t care how late. It‟s so good, beep,

beep, beep. Oh, I‟m gonna call you back right now. Bye. Oh.

(State‟s Ex. 18; see also D.C. Doc. 1 at 9-10.) After Kingman was in custody, he

asked the physician attending to his injured hand whether he would “be able to

punch again.” (State‟s Ex. 36, Tr. at 409-10.)

Pretrial Publicity

Local news media--including KBZK television station and the Bozeman

Daily Chronicle (the Chronicle) newspaper--reported on the September 17, 2008

9

incident and subsequent attempted deliberate homicide charge. (D.C. Doc. 92

(Exs. A, B).) The district court considered copies of articles published by the

Chronicle on the following dates: 9/18/08, 9/20/08, 9/24/08, 10/2/08, 10/4/08,

10/22/08, 12/7/08, 1/24/09 and 5/28/09. (D.C. Doc. 92 (Ex. B).) The parties

agreed that the Chronicle had a daily circulation of 17,500, or approximately half

of the households in Gallatin County. (See D.C. Docs. 92 (Ex. D), 238 at 9.)

The district court also considered copies of KBZK news broadcasts which

aired on the approximate dates of 9/17/08, 9/20/08, 9/23/08, 10/2/08, 10/3/08,

10/21/08, 12/3/08, 2/18/09 and 5/27/09. (D.C. Doc. 92 (Ex. A).) It was

undisputed that KBZK, in combination with its sister station in Butte, Montana,

reached approximately 100,000 viewers. However, the district court found that it

was impossible, based on the information provided, to estimate how many

households or individuals eligible to serve as jurors in Gallatin County were

exposed to KBZK news reports daily. (D.C. Doc. 238 at 9.)

Six of the Chronicle articles and six of the KBZK reports were printed or

aired in the first 36 days following the incident at issue, and the incident occurred

over one year prior to the date of the district court‟s Order denying change of

venue. (D.C. Doc. 238 at 10.) The remaining articles and news broadcasts were

printed or aired in late 2008 and early 2009, with the most recent Chronicle article

being dated 5/28/09 and the most recent KBZK broadcast dated 5/27/09. (Id.) The

10

district court found, therefore, that the majority of the news publicity in this case

occurred in the first month or so following the incident, with only sporadic

reporting thereafter. (Id.)

The district court made the following findings regarding the news reports at

issue. The nine articles printed in the Chronicle, and the nine news broadcasts

aired by KBZK, contained factual accounts of the background of the case and

various courtroom proceedings occurring since Kingman‟s arrest. (D.C. Doc. 238

at 9.) The information appeared largely to have been gleaned from court

documents and courtroom proceedings which were open to the public. (Id.) The

general tenor of the reports was not of an inflammatory nature and did not indicate

an intent to try to prejudice the public against Kingman. (Id.) Neither the printed

articles nor the broadcast reports contained undue editorializing regarding the

reported facts. (Id.) While the reports did speak of the brutality of the injuries

inflicted on Overby, this information was easily obtained from court records and

witness statements, and was not reported in an inflammatory manner with an intent

to incite the public‟s passion or prejudice or otherwise sway public opinion against

Kingman. (Id. at 9-10.)

All of the news reports reviewed by the district court referenced Kingman

and this criminal proceeding in terms such as “allegations,” “accusations,” and

“charges.” (D.C. Doc. 238 at 10.) The parties agreed that statements by the

11

prosecutor or law enforcement officials, as reported in the media, were few and

typically limited to statements made by those persons during court proceedings,

rather than extrajudicially. (Id.)

In addition to the above news media publicity regarding this case, various

fundraising activities occurred in the Gallatin County area on behalf of Overby,

including the placement of donation jars in various local businesses and an event

held in Big Sky, Montana, referred to as the “Pillage in the Village,” which was

reported in a local monthly publication called the Bozone. (See D.C. Doc. 92 (Ex.

E).) The district court found no evidence to support a determination that any

community fundraising efforts were either a result of inappropriate news reporting

or were themselves a medium by which the public‟s passions against Kingman

were inflamed or resulted in an apparent adverse community reaction to Kingman.

(D.C. Doc. 238 at 11.)

The district court considered undisputed census information for Gallatin

County from the United States Census Bureau for the years 2005-2007. (D.C.

Doc. 92 (Ex. C).) Pursuant to the census data, the population of Gallatin County

was estimated at 84,199. In that same time period, the population of Gallatin

County over the age of 18 years was 66,052. The U.S. Census Bureau further

estimated for that time period that there were 31,890 occupied housing units in

Gallatin County. The estimated number of individuals living in Gallatin County

12

who would have been eligible to serve as jurors at the time of the 2005-2007

census was 63,000.

It was undisputed that the 150 individuals drawn for the jury panel were a

representative sample of potential jurors in Gallatin County. Each of those

150 potential jurors was sent a supplemental Jury Questionnaire developed by the

parties which contained several questions directly related to Kingman‟s Motion to

change venue. (D.C. Docs. 137-144, 145.1; see, e.g., D.C. Doc. 141, Ex. A at 8

(questions 36, 37).) Although 17 of the 150 potential jurors were initially excused

from the panel, the district court considered all of the completed questionnaires in

its analysis. (D.C. Doc. 238 at 5.)

Question 36 on the Jury Questionnaire asked “Have you seen, read or heard

anything about this case?” (D.C. Doc. 141 (Ex. A at 8).) Subsequent subsections

of Question 36 then asked the potential jurors to indicate the content of what they

had seen, read or heard about the case; how often they had seen, read or heard

about the case; and from what sources they obtained any such information.

According to the district court‟s undisputed calculations, 96 potential jurors

responded “yes” to this question, 47 jurors responded “no,” 3 jurors left the

question blank, and 4 jurors indicated they were unsure whether they knew of the

case. (D.C. Doc. 238 at 5.)

13

Question 37 on the Jury Questionnaire asked “As a result of what you

have seen, heard, read or discussed about this case, have you formed an opinion

that would affect your ability to serve as a juror?” (D.C. Doc. 141 (Ex. A at 8).)

The district court found that 27 potential jurors responded “yes” to this question,

108 jurors responded “no,” and 15 jurors left the question blank. (D.C. Doc. 238

at 5, 14-15.)

The district court took judicial notice of the fact that, since September 17,

2008, three deliberate homicide cases and two negligent vehicular homicide cases

were filed by the State in Gallatin County and were the subject of various news

reports by the local media. (9/21/09 Tr. at 20-21.)

Prosecution Argument at Sentencing

At sentencing, the State argued for imposition of the the maximum prison

sentence for aggravated assault, 20 years, together with restrictions on Kingman‟s

parole eligibility. (Sent. Tr. at 58-67.) The State based its argument first on the

facts of the crime proved at trial--the severe injuries to Overby; the savage nature

of the beating; and Kingman‟s “own animalistic voice,” expressing his joy and

satisfaction from beating Overby. (Id. at 58-59.) But the prosecutor also

thoroughly analyzed the sentencing and correctional policies of the State of

Montana--the need for punishment of the offender; the protection of the public

14

from a violent and repeat offender; the restitution, reparation, and restoration of the

victim; and the offender‟s self-improvement, rehabilitation, and reintegration back

into the community. (Id. at 59-65.) The State also explained the need for a parole

restriction. (Id. at 65.)

Only after going through all those reasons for the recommended sentence

and restriction did the prosecutor make the following statement:

The basis for this recommendation is very simple, and it‟s based upon

a very simple concept. Some animals need to be caged. Some

creatures are so dangerous that society can‟t risk them being amongst

us. What Mr. Kingman did in September of 2008 is inhuman. No one

does that. He does not need to be treated with any sort of respect or

admiration. When he‟s over at the Detention Center acting up,

pounding on walls, breaking sprinkler heads, he‟s acting as the state

has just characterized him--as a caged animal. And that‟s where he

needs to be.

(Sent. Tr. at 65-66.) Kingman did not object to that statement. Uninterrupted,

the prosecutor went on with his argument to the district court. (Id. at 66-67.)

Defense counsel made his argument to the district judge, seizing upon and

emphasizing the above characterization of Kingman, and countering it with his

own argument that Kingman was a human being, not an animal, and that,

“People in this country are afforded at least some measure of human dignity.”

(Sent. Tr. at 67-69, 72.)

15

The district court found as follows in regard to the State‟s recommended

sentence:

The State has requested defendant be given the maximum sentence for

the crime due to the aggravated circumstances of this case. Chief

Deputy County Attorney Whipple has argued that the case has to be

considered under its own facts and circumstances, that this defendant

is a dangerous individual, who has spent a number of years in and out

of prison in California; who has a history of anger issues and severe

drug and alcohol abuse and committed this crime while extremely

intoxicated, that he has continued to act out in anger even while

participating in counseling and receiving medication for his mental

health issues. The State feels that it is imperative that he not have an

opportunity to hurt anyone else. The State therefore requests the

defendant be sentenced to the Montana State Prison for 20 years with

restriction regarding the defendant‟s eligibility for parole under

Section [46]-18-202(2).

(Sent. Tr. at 92-93.)

The district court rejected the defense argument for mitigating factors, based

on the circumstances of the offense and the offender:

The Court has considered the circumstances of this assault. The Court

was present for all of the testimony during the tria1. The Court is

aware of the jury findings and the fact that we are now here on an

aggravated assault. Even considering all of the testimony and the

information contained in the Pre-sentence Investigation Report, the

Court finds that there is really no mitigation to the heinous nature of

what Mr. Kingman did to Paul Overby in the alley behind the Scoop

Bar on September 17, 2008. This was not a crime of passion. It was

not accidental nor was it something that just happened during the

commission of another crime. The defendant‟s actions were

deliberate. He did not walk away when he could have. He totally lost

control of himself, and he continued to beat Mr. Overby after he was

down on the ground. As repeated in court, without the intervention of

Officer Swanson, Paul Overby would have died that night.

16

After this occurred, we all have heard that Mr. Kingman reveled in the

adrenaline after the attack and gloated to his friends in a telephone

message when he described what happened. He was not horrified by

what he had done or how he had responded. Instead, he was thrilled

with the effect of what he did and how he continued to beat Paul

Overby like “Rocky punching wet meat.” He called to get a ride after

the beating and said “If you don‟t get me to where I‟m going, I‟ll go

to prison for life.” When he was taken to the hospital for treatment of

the laceration on his fingers, he asked the doctors if he would be able

to punch again.

The defendant cannot currently function in the community. He is a

danger to any community in which he stays with his anger

uncontrolled and his alcohol and drug abuse unchecked. The Court

does not believe that any of the factors identified by the defendant

mitigate or reduce his culpability in any way for this offense. The

circumstances of this crime are outrageous; they‟re aggravated; they

are intolerable. They cannot be mitigated or explained by the

defendant‟s social history or excused by his use or abuse of alcohol

and drugs. The Correctional Policy to provide opportunities for

rehabilitation and re-integration into the community has to be

balanced against the safety of the public. This defendant knew what

he was doing. He knew that it was wrong. He still didn‟t stop. He

didn‟t stop beating Paul Overby until bystanders yelled at him to stop.

He is a dangerous and violent offender. He has a significant criminal

history involving violence, anger, and mixed with drug and alcohol

abuse.

All of these factors have been confirmed by the psychological

evaluations both in 2001, and again in 2009. He is a serious repeat

felony offender that requires long-term incarceration to protect this

victim and to protect the people of the State of Montana. He has had

opportunities for probation. He has failed and repeatedly violated the

terms and conditions of his previous probations. He has not

successfully completed the time that he was on probation, nor during

the time that he has been incarcerated here. He has not been able to

control his anger. He continues to strike out at others without normal

controls, and he has exacerbated his anger and control issues with the

use of drugs and alcohol.

17

In order to protect the public safety as well as to provide for

rehabilitation under these circurelances, the Court finds that chemical

dependency treatment, anger management, and criminal thinking

programs have to be required and that they cannot be provided outside

of the prison in this case. In order to insure that [these programs] will

be completed, the defendant will be restricted from parole until

the . . . programs at the prison have been successfully completed.

(Sent. Tr. at 94-96.)

SUMMARY OF THE ARGUMENT

The district court did not abuse its discretion when it denied Kingman‟s

motion for change of venue. First, the pretrial publicity in this case was not

inflammatory. No evidence in the record showed that the news reports at issue

stirred up the strong and pervasive community passions in any way to justify a

change of venue. Second, no evidence in the record supported a finding that actual

community prejudice existed as a result of that publicity.

This Court should affirm Kingman‟s concededly legal sentence for the

maximum prison term for the aggravated assault he was convicted of, without

regard to the prosecutor‟s argument at sentencing characterizing Kingman‟s

criminal acts as “inhuman” and his behavior in custody like that of a “caged

animal.” Kingman failed to preserve the issue raised on appeal by specific,

contemporaneous objection to the prosecutor‟s arguments to the district court at

sentencing--and failed to allege or establish plain error on appeal. Further,

18

Kingman conceded that the district court committed no error in sentencing him,

and he has made no plausible allegation on appeal that his sentence was illegal due

to the prosecutor‟s remarks.

ARGUMENT

I. THE DISTRICT COURT PROPERLY, AND WITHIN ITS

DISCRETION, DENIED KINGMAN’S MOTION FOR CHANGE OF

VENUE FOR PRETRIAL PUBLICITY.

A. Standard of Review

This Court reviews a trial court‟s ruling on a motion for change of venue for

abuse of discretion. State v. Devlin, 2009 MT 18, ¶ 15, 349 Mont. 67, 201 P.3d

791 (the district court abuses its discretion if it acts arbitrarily without the

employment of conscientious judgment or exceeds the bounds of reason, resulting

in substantial injustice). The burden to demonstrate an abuse of discretion is on the

party seeking reversal of an unfavorable ruling. Devlin, ¶ 15.

Kingman argues on appeal for abandonment, in this case, of the

longstanding abuse of discretion standard in change of venue cases, despite having

expressly recognized the district court‟s discretion during the proceeding below.

(9/21/09 Tr. at 15 (“Well, of course, the Court has discretion.”).) As this Court has

explained its review in these cases, “[W]e are allowing a district judge to exercise

his discretion in determining that the actual prejudice is sufficiently pervasive to

19

warrant a change of venue.” State v. Link, 194 Mont. 556, 560, 640 P.2d 366, 368

(1981). The basis for exercising de novo review in this case is Kingman‟s reliance

on federal “presumed prejudice” analysis. (Br. of Appellant at 10-20.) Kingman

asserts, “As Kingman‟s motion to change venue alleged presumed prejudice,

de novo review applies to his federal claim.” (Id. at 11.)

First, Kingman made no “federal claim” in his motion to change venue in

the district court and has raised these federal issues for the first time on appeal.

Second, Kingman‟s motion never “alleged presumed prejudice:”

Mr. Kingman asserts that he is entitled to a change of venue in this

matter due to the inflammatory nature of the publicity, the repeated

statements in the media which presume the guilt of Mr. Kingman, and

the resulting prejudice in the community such that it is reasonable to

believe he will not receive a fair and impartial trial.

(D.C. Doc. 92 at 9.) While this Court has recognized that change of venue may be

required without the benefit of voir dire if the circumstances of the case indicate

“inherent prejudice,” the ultimate test remains whether there are “reasonable

grounds to believe that the prejudice alleged actually exists.” State ex rel.

Coburn v. Bennett, 202 Mont. 20, 30-33, 655 P.2d 502, 507-08 (1982) (holding the

exhibits and affidavits submitted in support of the motion supplied “reasonable

grounds to believe that the prejudice alleged by relator actually exists”).

In change of venue cases, however, prejudice will not be presumed nor a

verdict set aside unless substantial prejudice is shown by the record. State v.

20

Olson, 156 Mont. 339, 343, 480 P.2d 822 (1971). In Coburn, this Court did not

“presume” prejudice, as Kingman seems to assert. Rather, the Court made a

finding of actual prejudice based on the widespread and substantial evidence of

prejudice presented before voir dire and obviating the need for voir dire. Coburn,

202 Mont. at 30-31 (angry citizens marched on the courthouse; there were public

meetings; there was vandalism; threats were made against defendant; and news

reports, including extrajudicial statements of the sheriff and prosecutors, inflamed

an already angry populace). Such “inherent prejudice,” however, did not change

the actual prejudice test or the standard of review. Coburn, 202 Mont. at 29, 30.

Third, in the district court Kingman relied on State v. Devlin as

representative of “the current state of the law controlling the change of place of

trial.” (D.C. Docs. 92 at 9, 222 at 7-8.) Thus, in keeping with Devlin as

controlling law, the established standard of review in these cases, and Kingman‟s

arguments for change of venue in the district court, the test for change of venue

includes a showing of “actual” prejudice and the standard of review is abuse of

discretion. This Court should review denial of Kingman‟s motion for change of

venue for abuse of discretion and reject Kingman‟s federal “presumed prejudice”

arguments and analysis raised for the first time on appeal.

21

B. Kingman Has Not Made the Requisite Showings That the

Pretrial Publicity in this Case was Inflammatory in Nature

and Actually Inflamed the Prejudice of the Community.

In exercising its discretion, the court is bound to uphold the defendant‟s

constitutional right to a trial by an impartial jury. Devlin, ¶ 15; see State v. Moore,

268 Mont. 20, 51, 885 P.2d 457, 477 (1994) (failure to provide an impartial

tribunal is a violation of due process), overruled in part on other grounds, State v.

Gollehon, 274 Mont. 116, 121-22, 906 P.2d 697, 700-01 (1995); Irvin v. Dowd,

366 U.S. 717, 722 (1961) (the accused is guaranteed a fair trial by a panel of

impartial, “indifferent” jurors).

In recognition of the right to trial by an impartial jury, Montana law provides

that either party may “move for a change of place of trial on the ground that there

exists in the county in which the charge is pending such prejudice that a fair trial

cannot be had in the county.” Mont. Code Ann. § 46-13-203(1). A criminal

defendant is entitled to a change of trial venue when it appears there are reasonable

grounds to believe that the alleged prejudice actually exists and that, by reason of

the prejudice, there is a reasonable apprehension that the accused cannot receive a

fair and impartial trial. Devlin, ¶ 16. This standard requires a fact-specific inquiry

by the court and, necessarily, fact-specific proof by the moving party. Devlin,

¶¶ 16, 30.

22

Motions for change of venue based on adverse publicity must demonstrate

both: (1) that the news reports were inflammatory; and (2) that the news reports

actually inflamed the prejudice of the community to an extent that a reasonable

possibility exists that the defendant may not receive a fair trial. Devlin, ¶ 17. The

first element of this test focuses on the nature of the publicity itself, while the

second focuses on its effect. Devlin, ¶ 17.

1. The Publicity Regarding Kingman’s Case Was Not

Inflammatory.

The Court in Devlin clarified that “inflammatory” publicity is publicity

which, by its nature, has the tendency to stir up in the community pervasive and

strong passions of anger, hatred, indignation, revulsion, and upset such that there

are reasonable grounds to believe that jurors chosen from this community could

not determine the defendant‟s guilt or innocence in a fair and unbiased manner and

based solely upon the evidence admitted at trial. Devlin, ¶ 24. Whether the media

reports contain “editorializing,” whether they were “calculated” to achieve a

sinister purpose, or whether they merely report “factual” information are all

relevant factors, but the focus must be on the publicity‟s likely effect on the jury

pool. Devlin, ¶ 24. The Court explained that this determination must be made

based on “extant circumstances” which include, but are not limited to: the size of

the jury pool; the nature of the offense charged; the type and content of the media

reports; the readership of the publication; the relative size of the radio or television

23

audience; the time lapse between the publicity and the trial; whether the reports

appear to take a position on the defendant‟s guilt; whether the reports contain

extrajudicial statements by prosecutors or law enforcement personnel that are

prejudicial to the defendant; and whether there is any ostensible adverse

community reaction to the publicity. Devlin, ¶ 24.

In this case, the district court addressed each of these “extant circumstances”

in turn and, considering them in combination, concluded that the pretrial publicity

was not of such a nature as to be “inflammatory” and, thereby, prejudicial to

Kingman. (D.C. Doc. 238 at 8-11.) The pretrial publicity by its nature did not

have “the tendency to stir up in the community pervasive and strong passions of

anger, hatred, indignation, revulsion, and upset.” (D.C. Doc. 238 at 11-12 (citing

Devlin, ¶ 24).) The district court explained, specifically to the factors at issue:

Gallatin County may be a relatively small community and it is true

that the local news media reaches a large percentage of that

community which is eligible for jury duty. However, in that same

small community, three deliberate homicide cases and two negligent

vehicular homicide cases have been filed by the State since September

of 2008 and reported upon in local news media. Furthermore, the bulk

of the pretrial publicity in this case occurred within the first six weeks

of the underlying incident and has been sporadic, at best, in the

several months directly prior to trial. The pretrial publicity which has

been disseminated through the media generally has been limited to

relating the factual background of the case and the pretrial court

proceedings, and has not contained inappropriate “editorializing”

indicating an intent to try to prejudice the public against Kingman.

(D.C. Doc. 238 at 12.)

24

Based on the undisputed facts and extant circumstances reviewed by the

district court, these findings and conclusions do not exceed the bounds of reason or

demonstrate arbitrary action lacking conscientious judgment. Kingman has,

therefore, not shown that the district court abused its discretion in determining that

the publicity in this case was not inflammatory. The failure of either element of

the test for change of venue requires this Court to affirm the district court‟s denial

of Kingman‟s motion.

2. The Publicity Regarding Kingman’s Case Did Not

Actually Inflame the Prejudice of the Community.

While the nature of the publicity here was not inflammatory, neither did it

have the effect of actually inflaming the prejudice of the community. First,

Kingman has not shown “inherent prejudice” warranting the change of venue prior

to voir dire, as in Coburn. A motion for change of venue may be granted prior to

voir dire upon a showing of inherent prejudice. State v. Hill, 2000 MT 308, ¶ 55,

302 Mont. 415, 14 P.3d 1237, 1247 (citing Coburn, 202 Mont. 20, 655 P.2d 502).

As in Hill, the facts here do not indicate the existence of such widespread and

substantial “inherent prejudice” to warrant a change of venue prior to voir dire. In

Coburn, the record revealed that angry citizens marched upon the courthouse, held

numerous public meetings, and perpetrated acts of vandalism in anticipation of

trial. In addition, county officials made extra-judicial and prejudicial statements to

the newspaper which enraged the community. Coburn, 202 Mont. at 30-31,

25

655 P.2d at 507. Just like in Hill, there is no similar evidence in the instant case

and, consequently, there is no similar inherent prejudice as in Coburn. Hill, ¶ 55.

Hence, applying the second element of the test for change of venue for

adverse publicity, Kingman was required to demonstrate that the publicity actually

inflamed the prejudice of the community to such an extent that a reasonable

possibility existed he would not receive a fair and impartial trial. Devlin, ¶ 30.

“[S]omething beyond bare allegation is required to prove that the community is

actually infected with prejudice.” Devlin, ¶ 30 (quoting Link, 194 Mont. at 560,

640 P.2d at 368).

To make this showing “requires evidence indicating that the prospective

jurors could not set aside what they have heard or read in the media and decide the

defendant‟s guilt impartially and based solely on the evidence admitted at trial.”

Devlin, ¶ 32. This Court has approved the use of affidavits stating facts in support

of alleged prejudice, or surveys of the opinions of prospective jurors regarding the

defendant‟s guilt; newspaper articles, as well as demographic information and

circulation figures; and voir dire, as the primary method of demonstrating that

potential jurors have been so affected by pretrial publicity that they would be

unable to render a fair and impartial verdict. Devlin, ¶ 30 (citations omitted).

However, this Court has warned that “exposure to pretrial press coverage--

even coverage that is slanted or inflammatory--does not in itself establish that the

26

jury pool is so inflamed and prejudiced that any juror drawn from the pool would

be unable to render a fair and impartial verdict based on the evidence presented in

court.” Devlin, ¶ 31 (citing Link, 194 Mont. at 559, 640 P.2d at 367 (prejudice per

se does not arise from publication alone)). Likewise, “jurors‟ knowledge of the

case and publicity, without more, is insufficient to warrant a change of venue since

it cannot be equated with prejudice.” Devlin, ¶ 32 (citing State v. Fuhrmann,

278 Mont. 396, 409, 925 P.2d 1162, 1170 (1996)); see also Irvin, 366 U.S.

at 722-23; Moore, 268 Mont. at 54-55, 885 P.2d at 479); State v. Bar-Jonah,

2004 MT 344, ¶ 88, 324 Mont. 278, 102 P.3d 1229 (the mere existence of any

preconceived notion as to the guilt or innocence of an accused is insufficient,

rather “sufficient impartiality is established if the juror can lay aside his opinion

and render a verdict based on the evidence presented”).

The district court concluded that Kingman failed to present evidence

sufficient to establish that the prospective jurors in this case could not set aside

whatever they had heard or read in the media and decide his guilt impartially and

based solely on the evidence admitted at trial. (D.C. Doc. 238 at 16.) Thus,

Kingman has not shown there was a “reasonable possibility” that he may not

receive a fair trial due to prejudicial pretrial publicity. (Id.)

Kingman relies entirely on the evidence considered at the hearing on his

motion for change of venue, without regard to voir dire of the potential jurors

27

called in this case--the “primary method” of showing actual prejudice. Devlin,

¶ 30. Significantly, the district court‟s finding of no actual prejudice or

inflammatory effect from the publicity at issue is born out by the voir dire in this

case. Only a few potential jurors indicated having been swayed in any way by the

media, or having otherwise formed an opinion as to Kingman‟s guilt that they

could not set aside, and each was excused for cause--three by the State (Rhea,

Voulkos, Vine) and one by the defense (Hurlbert). (Tr. at 21, 24-27, 34-35, 73-76,

97-100.) No other jurors had an issue with the media.

On appeal Kingman asserts that the evidence of community fundraising

efforts for Overby and the responses to the the Jury Questionaire--96 had “seen,

read, or heard” something about the case and 27 had formed some opinion

affecting their ability to serve as a juror--indicate the “pervasiveness and

prejudicial effect of the publicity.” (Br. of Appellant at 34-35, 39.) Kingman,

however, has failed to make anything more than a “bare allegation” that the

community was actually infected with prejudice. Devlin, ¶ 30; Link, 194 Mont.

at 560, 640 P.2d at 368.

In the context of the first element of the change of venue test, the district

court specifically found no evidence to support a determination that any

community fundraising efforts were either a result of inappropriate news reporting

or were themselves a medium by which the public‟s passions against Kingman

28

were inflamed or resulted in an apparent adverse community reaction to Kingman.

(D.C. Doc. 238 at 11.) Review of the record, likewise, shows no evidence that the

fundraising efforts embodied anything other than community goodwill toward

Overby--the community effort was to help Overby, not to condemn Kingman.

This is not the kind of “pervasive civic involvement in the fate of a victim” that

was present in the much smaller California community in Maine v. Superior Court

of Mendocino County, 438 P.2d 372, 378-79 (Cal. 1968). Sympathy for a victim

does not, as a rule, demonstrate antipathy to the alleged perpetrator of an offense.

Id. The Bozone article relied upon by Kingman as evidence of prejudice against

him did not even mention Kingman by name as the perpetrator. (See D.C. Doc. 92

(Ex. E).)

In regard to the filed responses to the Jury Questionnaire, the district court

concluded that the 27 affirmative responses to Question 37 (“have you formed an

opinion that would affect your ability to serve as a juror”) were not sufficient to

indicate that Kingman could not receive a fair and impartial trial in Gallatin

County or to meet Kingman‟s burden of establishing that the publicity actually

inflamed the prejudice of the community. (D.C. Doc. 238 at 14-15.) Without

specifiying what the opinions were or whether or not the potential jurors could set

aside the opinion and render a verdict based on the evidence, Kingman‟s argument

below and on appeal is mere conjecture about the effect of the publicity.

29

The district court recognized that 96 potential jurors--or approximately

two-thirds of the jury panel--responded that they had read, seen or heard something

about this case and that, in some instances, those jurors recalled a great deal about

this case and used terms similar to various news reports and court records.

(D.C. Doc. 238 at 15.) However, the district court rejected the inference urged by

Kingman that those potential jurors must also have formed an opinion about the

case solely because of their admitted exposure to the media coverage. (Id.) As the

court found, over 100 of the 150 potential jurors indicated they had not formed an

opinion about this case which would affect their ability to be impartial as jurors.

(Id.) The district court did not abuse its discretion by taking those responses “at

face value, without speculation or second guessing the veracity of the responses,”

and concluding that “knowledge of the case, even in some detail, does not equate

to having formed an opinion about Kingman‟s guilt or innocence of the crime

charged.” Accord Devlin, ¶¶ 31, 32 (citing Link, 194 Mont. at 559, 640 P.2d

at 367, Moore, 268 Mont. at 54-55, 885 P.2d at 479, Fuhrmann, 278 Mont. at 409,

925 P.2d at 1170); Irvin, 366 U.S. at 722-23; Bar-Jonah, ¶ 88.

Even reviewing specific examples cited by Kingman of responses to

Question 36(d) (“please tell us everything you think you know about this case, in

as much detail as possible”), the district court was unable to find support for any

30

conclusion that those jurors “indicated a strong prejudice, nor do they reflect strong

passions of anger, hatred, indignation, revulsion and upset.” (D.C. Doc. 238 at 16.)

The district court, therefore, did not abuse its discretion in finding a lack of

actual prejudice resulting from the pretrial publicity in this case. As Kingman

established neither element of the change of venue test, this Court should affirm

the denial of Kingman‟s motion.

II. THE PROSECUTOR’S ARGUMENT AT SENTENCING WAS NOT

PLAIN ERROR IN VIOLATION OF KINGMAN’S MONTANA

CONSTITUTIONAL RIGHT TO DIGNITY.

A. Standard of Review and Applicable Law

This Court reviews a sentence involving incarceration of one year or more

for legality and exercises plenary review over constitutional questions. State v.

Charlie, 2010 MT 195, ¶¶ 21-22, 357 Mont. 355, 239 P.3d 934.

B. Kingman Raises His Objection to the Alleged Violation of

His Right to Dignity for the First Time on Appeal and Has,

Therefore, Waived It.

Kingman cannot now attack his concededly legal sentence on appeal based

on the prosecution‟s allegedly improper argument, because Kingman did not first

object during the sentencing hearing before the district court. State v. Rosling,

2008 MT 62, ¶ 76, 342 Mont. 1, 180 P.3d 1102 (Rosling failed to preserve issue by

timely objecting to the prosecutor‟s remarks, and issue was not properly before the

31

Court because he did not raise a plausible allegation that his sentence was illegal

due to the remarks). As a general rule, a party may raise on direct appeal only

those issues and claims that were properly preserved by timely objection in the

trial court. State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244, 194 P.3d 683;

see Mont. Code Ann. § 46-20-104(2) (on appeal this Court may review “any

alleged error objected to which involves the merits or necessarily affects the

judgment”).

In order to preserve an objection for appeal, a party must state grounds for

the objection that are sufficiently specific. In re B.I. and N.G., 2009 MT 350, ¶ 16,

353 Mont. 183, 218 P.3d 1235 (citing State v. Benson, 1999 MT 324, ¶ 19,

297 Mont. 321, 992 P.2d 831). This Court will not fault a district court where it

was not given an opportunity to correct itself, and a general objection to an alleged

error is not sufficient to provide such an opportunity. Id.; see West, ¶¶ 16, 17.

Here, Kingman did not make any objection at sentencing to the allegedly

improper argument of the prosecution. (See Sent. Tr. at 58-77.) Nor has Kingman

alleged on appeal that his sentence was illegal or exceeded statutory authority--in

fact, he concedes there was no “improper action in regard to his sentencing.” (Br.

of Appellant at 42 n.25.)

A party‟s assertion of error “must stand or fall on the ground” raised

in the trial court. State v. Paoni, 2006 MT 26, ¶ 29, 331 Mont. 86, 128 P.3d 1040

32

(quoting State v. Davis, 2000 MT 199, ¶ 39, 300 Mont. 458, 5 P.3d 547); see, e.g.,

State v. Stringer, 271 Mont. 367, 897 P.2d 1063, 1070 (1995) (noting “in each

instance of alleged misconduct, defense counsel objected to the prosecutor‟s

statements” and therefore met the contemporaneous objection rule in Mont. Code

Ann. § 46-20-104(2)). Clearly, there was no contemporaneous objection to the

prosecution‟s argument at sentencing on any grounds, let alone a specific violation

of the Montana constitutional right to dignity. (See Sent. Tr. at 65-66.) Rather, as

Kingman represents on appeal, “Defense counsel took issue with the prosecution‟s

statement, stating that it was contrary to Kingman‟s inalienable „human dignity.‟”

(Br. of Appellant at 9 (citing Sent. Tr. at 67-68).)

The State agrees Kingman and his attorney “took issue” with the

prosecution‟s argument and responded during argument that, in fact, Kingman was

a human being and not an animal. (Sent. Tr. at 67-69, 81.) However, the defense

argument mentioned “human dignity” only one time and merely asserted that

“people” should be “afforded at least some measure of human dignity.” (Sent. Tr.

at 68.) Thus, Kingman never asserted an “inalienable” or “inviolable” right, never

cited any specific provision or provisions of the constitution affording such a right,

and never claimed the prosecutor‟s argument violated any such right personal to

Kingman or required the district court to grant any relief or correct any error in the

sentencing proceeding.

33

Simply “taking issue” with the other side‟s argument does not a reviewable

objection make. There must be a specific and unequivocal objection to the

argument, and a sufficiently specific constitutional ground for relief stated, giving

the district court an opportunity to correct the identified error. Merely hinting at a

constitutional violation--especially one Kingman says should require reversal and

resentencing before a new judge--is insufficient to preserve the alleged error for

appeal. Much like the asserted “objection” in West, counsel advocated Kingman‟s

wishes for a sentence shorter than the maximum--juxtaposing his humanity against

the prosecution‟s characterization of his actions. However, Kingman “did not in

any way challenge the propriety of the proceedings themselves, move to dismiss,”

or otherwise suggest that his sentence or the proceedings under the circumstances

created by the prosecution‟s remarks “constituted a statutory or due process,” or

any other constitutional, violation. West, ¶ 18. Just as in B.I. and N.G., the

constitutional dignity concerns Kingman now raises on appeal were not stated with

any particularity, if at all, at sentencing. Thus, Kingman has failed to preserve this

issue for appeal.

C. Kingman Has Not Alleged Plain Error on Appeal and Has

Not Established the Threshold Showing Necessary for This

Court to Exercise Plain Error Review.

To obtain plain error review of an otherwise procedurally barred

constitutional claim, an appellant must make a threshold showing that his claim

34

meets any of the three criteria first set out in State v. Finley, 276 Mont. 126, 137,

915 P.2d 208, 215 (1996), overruled in part on other grounds, State v. Gallagher,

2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817. State v. Haagenson, 2010 MT 95,

¶ 10, 356 Mont. 177, 232 P.3d 367 (citing West, ¶ 23; State v. Jackson, 2009 MT

427, ¶¶ 42, 48, 354 Mont. 73, 221 P.3d 1213). Accordingly, this Court may

discretionarily review claimed errors that implicate fundamental constitutional

rights even if, as in this case, a timely objection was not made in the trial court.

West, ¶ 23. However, this Court will employ plain error review sparingly, on a

case-by-case basis, and only where failing to review the claimed error may result

in a manifest miscarriage of justice, may leave unsettled the question of the

fundamental fairness of the trial or proceedings, or may compromise the integrity

of the judicial process. West, ¶ 23.

In this case, however, Kingman has not alleged or established plain error on

appeal. While Kingman, for the first time on appeal, claims error that implicates

his fundamental constitutional right to dignity, he has made no showing, nor even

any argument, that failure to review that claimed error may result in a manifest

miscarriage of justice, leave unsettled the question of the fundamental fairness of

the trial or proceedings, or compromise the integrity of the judicial process.

Kingman has not even alleged that his sentence was illegal. Without making such

a required threshold showing in his opening brief, or even acknowledging that

35

these criteria are a prerequisite to considering his unobjected and unpreserved

dignity claim, this Court should refrain from considering them. State v. Torgerson,

2008 MT 303, ¶ 20, 345 Mont. 532, 192 P.3d 695 (where defendant neither alleged

nor established plain error Court did not consider unpreserved issue on appeal).

The appellant bears the burden of establishing error, State v. Buck, 2006 MT

81, ¶ 30, 331 Mont. 517, 134 P.3d 53, and this Court will decline to address

assertions on appeal “[a]bsent authority or developed argument.” State v.

Longfellow, 2008 MT 343, ¶ 18, 346 Mont. 286, 194 P.3d 694; see Mont. R. App.

P. 12(1) (f). Having failed to allege or establish plain error in the opening brief, it

is too late to invoke plain error review in a reply brief. State v. Ferguson,

2005 MT 343, ¶ 39, 330 Mont. 103, 126 P.3d 463; State v. Hagen, 283 Mont. 156,

159, 939 P.2d 994 (1997) (plain error first raised in a reply brief is not properly

raised for consideration on appeal).

Even if it had been raised, plain error review would not be justified in this

case. Failure to review the issue of the alleged violation of Kingman‟s Montana

constitutional right to dignity would not result in a manifest miscarriage of justice

or impugn the fairness or integrity of Kingman‟s sentence. Kingman has not

alleged on appeal that his sentence was illegal because of the prosecutor‟s remarks,

which is the ultimate standard of review of prison sentences. See Rosling, ¶ 76. In

fact, Kingman has conceded that he “claims no improper action on the part of the

36

district court in regard to his sentencing.” (Br. of Appellant at 42 n.25.) Thus,

even assuming some impropriety in the prosecutor‟s argument, any error was

harmless as evidenced by the unchallenged legality of the sentence and Kingman‟s

concession that the district court committed no error in sentencing him.

In addition, whether or not the identified remarks of the prosecutor were, in

isolation, “undignified,” the argument taken as a whole thoroughly and properly

addressed the statutorily mandated sentencing and correctional policies and

explained why the facts and circumstances of the case justified the maximum

sentence. (Sent. Tr. at 58-65.) See Mont. Code Ann. § 46-18-101. The record

shows that the district court, in considering the State‟s request to impose the

maximum sentence, thoroughly and thoughtfully considered those facts, factors,

and arguments without giving credence to any allegedly improper characterization

of Kingman by the prosecution. (Sent. Tr. at 86-96.) This Court has held that

“[n]ot every inadvisable comment made by a prosecutor during a sentencing

hearing” results in plain error--particularly where nothing in the record indicates

that the district court “took the prosecutor‟s remarks into consideration in

fashioning . . . [the] sentence.” Rosling, ¶ 78.

This Court has explained that prejudice in a criminal case will not be

presumed; in the absence of a record showing that the prosecutor‟s statements

denied the defendant a substantial right, any errors committed by the prosecution

37

are deemed harmless. State v. Arlington, 265 Mont. 127, 150, 161, 875 P.2d 307,

321, 327 (1994) (any error was harmless in the face of overwhelming evidence to

support conviction). Similarly, there was overwhelming support in the record in

this case, aside from the allegedly improper comments, for imposition of

Kingman‟s concededly lawful sentence.

The cases Kingman has cited on appeal, which he represents have

“repeatedly condemned” the characterization of a defendant as an “animal,” are

distinguishable. (See Br. of Appellant at 41.) Those cases deal, in the first

instance, with arguments to a jury, whereas the argument in this case was made to

a judge who would be inherently less susceptible to any prejudice from any

improper argument. In any event, the district court‟s reasons for Kingman‟s

sentence clearly demonstrate the court was not unfairly prejudiced by the

comments here. (See Sent. Tr. 86-96; D.C. Doc. 332.)

Furthermore, none of those cases resulted in a reversal based on the improper

argument at issue--either the error was harmless given the overwhelming evidence

in the record or it simply did not render the proceedings unfair. See, e.g., Darden v.

Wainwright, 477 U.S. 168, 179-80 (1986) (it is not enough that prosecutor‟s

remarks were undesirable or even universally condemned, the question is whether

the comments so infected the proceedings with unfairness as to result in a denial of

due process); State v. Wakefield, 190 N.J. 397, 921 A.2d 954 (N.J. 2007)

38

(prosecution‟s single metaphor that defendant was “the wolf taking the lives of the

two helpless sheep” did not violate the proscription against name-calling and was

simply not “so egregious” that it deprived defendant of a fair trial); State v. Merrill,

428 N.W.2d 361, 372-73 (Minn. 1988) (“Were the evidence of guilt not so

overwhelming in this case, we would not hesitate to send the case back for a new

trial; however, we could not in good conscience find that the statements had any

effect on the jury.”); Jones v. State, 937 P.2d 55, 65 (Nev. 1997) (likening Jones to

a rabid animal was misconduct, but it was harmless in light of the overwhelming

evidence of guilt). The record in this case is manifest that Kingman would be

unable to clear either one of these high hurdles--there is both overwhelming support

for the legal sentence imposed and a lack of prejudice or unfairness resulting from

the prosecution‟s argument.

Finally, since Kingman‟s “human dignity” argument is without merit

anyway, there is no danger of manifest injustice, unfairness, or lost integrity from

the failure to review it. Article II, section 4 of the Montana Constitution states that

“[t]he dignity of the human being is inviolable,” and includes prohibitions against

the denial of equal protection of the laws and against certain types of public or

private discrimination. This Court “has, for the most part, treated the human

dignity clause, not as a fundamental value to be recognized in its own right, but

rather, as reinforcing other values” expressed in the Declaration of Rights.

39

Snetsinger v. Montana Univ. Sys., 2004 MT 390, ¶ 65, 325 Mont. 148, 104 P.3d

445 (Nelson, J., specially concurring); see Walker v. State, 2003 MT 134, ¶ 73,

316 Mont. 103, 68 P.3d 872 (reading dignity clause together with cruel and

unusual punishment prohibition); In re Mental Health of K.G.F., 2001 MT 140,

¶ 45, 306 Mont. 1, 29 P.3d 485 (invoking dignity clause through statutes contained

within a due process analysis); Armstrong v. State, 1999 MT 261, ¶¶ 71-72,

296 Mont. 361, 989 P.2d 364 (dignity clause part of “overlapping and redundant

rights and guarantees”); In re C.H., 210 Mont. 184, 202 683 P.2d 931 (1984)

(physical liberty is a fundamental right under the Montana Constitution, reading

the preamble and specific sections together, including dignity clause). In addition,

as the Court has said, a conclusory statement without further analysis about how

the State has violated the right to dignity “falls far short of establishing a

constitutional violation.” State v. Herrick, 2004 MT 323, ¶ 35, 324 Mont. 76,

101 P.3d 755 (concluding that the right to individual dignity was not violated

where defendant appeared in leg restraints that the jury did not see).

Kingman has alleged in conclusory fashion a violation of the dignity clause,

alone and unconnected with any other fundamental right. Kingman has provided

no authority for granting the relief requested--reversal of his legal sentence and

resentencing before a new judge--for violation of that right alone.

40

CONCLUSION

This Court should affirm Kingman‟s legal sentence and the district court‟s

order denying change of venue.

Respectfully submitted this 28th day of January, 2011.

STEVE BULLOCK

Montana Attorney General

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

By: ________________________________

JONATHAN M. KRAUSS

Assistant Attorney General

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CERTIFICATE OF SERVICE

I hereby certify that I caused a true and accurate copy of the foregoing Brief

of Appellee to be mailed to:

Mr. Shiloh Hernandez

Assistant Appellate Defender

139 North Last Chance Gulch

P.O. Box 200145

Helena, MT 59620-0145 (Hand-delivered into the wire basket located in the reception area in

the Attorney General‟s Office, 215 North Sanders, Helena.)

Mr. Marty Lambert

Gallatin County Attorney

1709 W College, Ste. 200

Bozeman, MT 59715

Mr. Todd Whipple

Deputy Gallatin County Attorney

1709 W College, Ste. 200

Bozeman, MT 59715

DATED

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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 11 of the Montana Rules of Appellate Procedure, I certify

that this principal brief is printed with a proportionately spaced Times New Roman

text typeface of 14 points; is double-spaced except for footnotes and for quoted and

indented material; and the word count calculated by Microsoft Word for Windows

is 9,936 words, excluding certificate of service and certificate of compliance.

__________________________________

JONATHAN M. KRAUSS