No. 14443
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
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STATE OF MONTANA,
Plaintiff and Respondent,
PRENTISS N. KIRKLAND,
Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
Honorable Charles Luedke, Judge presiding.
Counsel of Record:
For Appellant:
Lee Overfelt, Billings, Montana
Gary D. Overfelt argued, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Sheri Sprigg argued, Assistant Attorney General, Helena,
Montana
Harold Hanser, County Attorney, Billings, Montana
Submitted: September 11, 1979
Decided :
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Filed:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Defendant was convicted of aggravated assault following
a jury trial in the District Court of Yellowstone County and
sentenced to 30 years imprisonment without parole as a persis-
tent felony offender. He appeals from the judgment of convic-
tion, the sentence imposed, and denial of a new trial.
In the months preceding February, 1978, defendant Prentiss
N. Kirkland had received several threats on his life. In Decem-
ber, 1976, his pickup truck was blown up by persons unknown. On
February 12, 1978, he and Mary Gunsch were in the Squire Lounge
in Billings, Montana when he received an anonymous phone call
threatening to blow up his trailer house.
Later the same evening defendant and Ms. Gunsch drove to
downtown Billings where they parted company. Defendant then
entered the Royal Flush Lounge in the Custer Hotel where he sought
out Charles Sparboe. Defendant asked Sparboe if they could talk
and Sparboe assented.
There is a conflict concerning what occurred thereafter.
According to defendant, he sat down opposite Sparboe and began
discussing the threats he had received and the possibility of Spar-
boe acting as an intermediary. At some time during the conversa-
tion, defendant removed a gun from his coat and slammed it on
the table to emphasize a point he was making. The gun discharged
with the bullet striking Sparboe in the chest. Witness Betty Jean
Baumgartner testified that both defendant and Sparboe were seated
at the time of the shooting.
According to the victim Sparboe, he sat down while defen-
dant remained standing. Without further conversation, defendant
pulled a gun and shot him in the chest.
Thereafter defendant ran from the lounge and was apprehend-
ed about a block from the Hotel by Billings police.
On February 17, 1978,defendant was charged with attempted
deliberate homicide. He retained his own counsel and plead not
guilty.
On April 14 defendant filed a motion to change the place
of trial alleging there had been an attempt by certain parties
in the community to brand him as a paid assassin. On ~ p r i l17
defendant moved that the weapon be produced for inspection; that
the information be stricken because the attempt statute was un-
constitutional in providing for a death penalty; and for a con-
tinuance of the trial on the grounds of lack of time and money to
interview witnesses and lack of time to examine the weapon.
On April 17, the District Court denied the motion for
continuance. On April 18 the District Court denied the motion to
strike the information, denied the motion to change the place of
trial pending jury selection, and noted that the record showed
the prosecution's willingness to cooperate in the defendant's
examination, inspection and testing of the weapon. On the same
day the District Court granted the prosecution's motion to prevent
the defense from suggesting to the jury that the death sentence
was a possible punishment.
On the morning of April 18, the jury was empanelled and
sworn. That afternoon the trial started, The jury was admonished
not to form any opinion until they heard the entire case and not
to talk about the case or allow anyone else to talk about it to
them. No mention was made at this time about newspaper, radio or
television news releases.
On April 21 during the course of trial, defense counsel
moved that the jury be questioned concerning their exposure to
telecasts from Billings television stations branding defendant as
a hired killer. The presiding judge denied the motion stating
that the voir dire examination of prospective jurors on the morn-
ing of ~prill8had covered the telecast of April 17 and that the
jury had been admonished on the 18th not to read newspapers or
listen to news accounts of the trial.
On April 2 4 defendant moved for a mistrial based on
the news releases. The motion was denied. The same day both
parties rested their case. The following day the jury returned
a verdict convicting defendant of the lesser included offense
of aggravated assault, a felony. Following denial of defendant's
motion for a new trial, the District Court found defendant to be
a persistent felony offender and sentenced him to 30 years in the
State Prison without the possibility of parole or prisoner furlough.
Defendant appeals advancing seven specifications of error:
1. Denial of his motion to strike the information.
2. Denial of his motion for a continuance of the trial.
3. Denial of his right to question prospective jurors
on the death penalty.
4. Denial of interrogation of jurors concerning their
exposure to prejudicial news releases.
5. Errors in jury instructions.
6. Denial of a new trial.
7. Error in the sentence imposed.
Defendant contends that his motion to strike the infor-
mation should have been granted because (1) the information failed
to recite the code provision on deliberate homicide, and ( 2 ) the
statute on attempt provides a possible death penalty in violation
of constitutional prohibitions against cruel and unusual punish-
ment.
Here the information charged defendant with attempted
deliberate homicide. It specifically cited the attempt statute
but did not cite the deliberate homicide statute. The applicable
statute requires the charge to state the name of the offense and
to cite "in customary form the statute, rule, or other provision
of law which the defendant is alleged to have violated." Section
46-11-401(~),MCA.
Defendant's attack fails on two grounds. First, his
motion to strike the information was untimely. The motion must
be made before a plea is entered subject to an exception not
applicable to this case. Section 46-13-103, MCA. Here the
motion was made two months after entry of defendant's plea,
Secondly, the motion was properly denied on the merits.
The test to be applied is "Would a person of common understanding
know what is intended to be charged?" State v. Dunn (1970), 155
Mont. 319, 327, 472 P.2d 288. Here the information stated the
crime charged, attempted deliberate homicide, and cited the attempt
statute, section 45-4-103, MCA. Failure to specifically cite the
deliberate homicide statute could not have deprived a person of
common understanding of the crime charged particularly where he
was represented by able and experienced counsel,
Defendant further contends that the information should
have been stricken because a person convicted of attempted delib-
erate homicide may be sentenced to death under sections 45-4-103(3)
and 45-5-102, MCA. He contends this constitutes cruel and unusual
punishment in violation of Federal and State constitutional pro-
hibitions.
His contention fails as he was neither convicted of attempt-
ed deliberate homicide nor sentenced to death. A defendant can-
not question provisions of an act which do not apply to his case.
State v. Johnson (1926), 75 Mont. 240, 259, 243 P. 1073. One who
is neither injured nor jeopardized by the operation of a statute
cannot challenge its constitutionality. State ex rel. City of
Wolf Point v. McFarland (1927), 78 Mont. 156, 162, 252 P. 805.
Since the trial of this case, we have further affirmed this prin-
ciple in State v Booke (1978),
. Mont. , 583 P.2d 405, 35
St.Rep. 1249, and State v. Azure (1979), Mont. , 591 P,2d
1125, 36 St.Rep. 514, 521.
Defendant next contends that it was reversible error to
deny his motion for a continuance of his trial. The gist of his
argument is that he was thus deprived of due process and the
right to effective assistance of counsel because he lacked time
and money to investigate the facts surrounding the alleged crime
and to examine and test the alleged weapon.
Defendant was incarcerated throughout the pretrial period.
His motion for a continuance was made and denied on April 17, the
day before trial. The gun allegedly involved in the shooting
was returned to the prosecution on April 14 from the FBI labor-
atory. The prosecution furnished defendant's counsel a list of
its witnesses, their proposed testimony, and cooperated with de-
fense counsel in making the weapon available for inspection and
testing after it was received back from the FBI laboratory.
The question of whether denial of a motion for continu-
ance is reversible error was addressed four years ago by this
Court and the following principles emerged:
"Motions for continuance are addressed to the
discretion of the trial court and the granting
of a continuance has never been a matter of
right. (Citation omitted.) The district court
cannot be overturned on appeal in absence of a
showing of prejudice to the movant. (Citation
omitted.)
"Defendant's argument therefore must stand or
fall on the issue of prejudice, for the district
court can be said to have abused its discretion
only if its ruling was prejudicial. We have not
found a single case ... in which the denial of
a motion for continuance was reversed without a
showing of resulting prejudice to the movant."
State v. Paulson (1975), 167 Mont. 310, 538 P.2d
339.
Defendant's claim of lack of time to investigate the facts
surrounding the alleged crime has a hollow ring. Two months el-
apsed between entry of defendant's plea and his motion for a con-
tinuance. The prosecution furnished him a list of its witnesses
and their statements. Defendant states that there is sufficient
conflict and vagueness in some of the statements to warrant an
independent investigation and interview. What conflict? What
vagueness? What witnesses? The record is barren. Defendant
also claimed lack of funds to hire an investigator until shortly
before trial. Yet he was able to hire his own attorney, did
not request the court to pay for an investigator from public
funds, or claim indigency.
Defendant also claims inability to examine and test the
weapon and to secure expert testimony regarding the weapon be-
cause of time constraints. Defendant clearly had time to examine
and test the weapon prior to trial. He arguably did not have time
to secure expert testimony regarding the weapon. But here his
defense was based on accidental discharge of the gun. The ex-
pert witness for the prosecution testified the weapon had "a poten-
tial for accidental discharge." Where is the prejudice?
For the foregoing reasons, the District Court did not abuse
its discretion in denying defendant a continuance of his trial.
There is nothing to indicate he was prejudiced or denied a fair
trial by reason thereof.
Defendant claims reversible error because he was denied
the right to question prospective jurors on the death penalty.
As previously discussed he has no standing to raise this issue be-
cause he was not convicted of a crime involving the death penalty
nor was he sentenced to death. Our prior holdings in Johnson and
McFarland together with our subsequent rulings in Booke and Azure
establish this principle.
Defendant's principal specification of error is the refusal
of the District Court to permit interrogation of members of the
jury concerning their exposure to inflammatory and prejudicial news
releases indicating he was a hired killer.
Defendant's motion seeking interrogation of jurors was
made on April 21 following 3-1/2 days of trial testimony. He
supported his motion by three news releases. The first was aired
over a Billings television station on April 17, the day before
trial:
"Prentiss Kirkland is being tried for attempted
deliberate homicide. He used a . 3 8 caliber
pistol to shoot Sparboe in the chest on February
12th. According to district court records, how-
ever, police have received information that Kirkland
was hired by an unknown person or persons to shoot
and kill Sparboe."
The second news release was from UP1 on April 17:
"They believe that Kirkland was paid to shoot
Sparboe who was wounded on February 12th. Police
say Sparboe was shot in the chest at close range
by a man using a . 3 8 caliber pistol. According
to district court records ... police have re-
ceived information that the defendant Kirkland
was hired by a person or persons unknown to shoot
and kill Sparboe."
The third was aired over a Billings television station on April
"Police have received information that the defen-
dant was hired by an unknown person or persons to
shoot and kill Sparboe."
The apparent source of this information was an application
for a search warrant to inspect defendant's bank records appear-
ing in the District Court file and reading as follows:
"In attempting to determine defendant's motive for
allegedly shooting Sparboe, police have received
information that defendant was hired by unknown
persons(s) to shoot and kill Sparboe. Investiga-
tion reveals that Sparboe is a financially success-
ful businessman, whose estate is estimated at well
over $5 million, and several persons could profit
by his death. Investigation reveals that it is com-
mon hearsay among persons acquainted with both the
victim and the defendant that defendant was hired
to shoot and kill the victim, At the time of de-
fendant's arrest, he was searched and booked into
the county jail, where all his personal effects were
seized and held as evidence. In his wallet were
found certain bank deposit receipts, for account
#427856 at First Citizen's Bank in Billings, reflect-
ing deposits of over $25,000.00 in the last eight
months. One deposit alone accounted for $22,000.00.
There is no evidence that defendant has been employed
during this period of time, or that he has any legit-
imate source of income."
The application for search warrant was filed on March 14. The
warrant was issued. The search was made and the return filed on
March 14.
On April 14 defendant moved for a change of the place of
trial on grounds "that there has been an attempt by certain
parties in the community to brand [the defendant] as a paid
assassin." (Bracketed identification paraphrased.) The motion
was denied on the first day of trial "pending jury selection
efforts." It was not renewed thereafter and is not specified as
error in this appeal.
Defendant's motion to interrogate the jurors on their
exposure to these news releases was made on April 21, the fourth
day of trial. It was denied on the basis that the voir dire exam-
ination of prospective jurors on April 18 covered "their know-
ledge of notoriety in the press" which would seem to cover the two
releases of April 17 and that on the 18th "the jury was specifi-
cally instructed not to read newspaper accounts nor to listen to
television or radio reports of the trial." In fact the admonition
of the 18th did not specifically cover the latter.
However, on the 19th the court specifically stated to the
jury: "I request that you do not read newspaper accounts of this
trial nor listen to radio nor television reports." A similar
specific admonition was given again at the end of the day on April
19, the second day of trial, again at the end of the fourth day of
trial, and again at the end of the fifth day of trial. In his
instructions to the jury the judge stated:
"In your deliberations you will only consider
the testimony of the witnesses upon the witness
stand and such exhibits as have been admitted in
evidence. No juror shall allow himself to be
influenced by anything which he may have seen or
read outside of the evidence and exhibits received
by the Court during the course of this trial."
We also note that at the close of the State's case-in-chief,
defendant moved for a mistrial on the ground that publicity given
the case had made a fair trial impossible.
The focus of our inquiry into this specification of error
is twofold: (1) What action is required of the trial judge
when news releases prejudicial to defendant appear during the
course of trial? (2) Did the prejudicial news releases taint
any juror in this case?
We have not previously been confronted with determining
what action, if any, a trial judge must take when prejudicial
news releases are brought to his attention during the course of
a criminal trial. Specifically, does the trial judge have a
mandatory and affirmative duty to initiate an inquiry of the
jurors to ascertain whether any of them had heard or read the
prejudicial news release?
Some federal and state appellate courts require this.
Typical of this view is the following statement by the United
States Court of Appeals of the Seventh Circuit:
" . .. the procedure required by this Circuit where
prejudicial publicity is brought to the court's
attention during a trial is that the court must
ascertain if any jurors who had been exposed to
such publicity had read or heard the same. Such
jurors who respond affirmatively must then be
examined, individually and outside the presence of
the other jurors, to determine the effect of the
publicity." Margoles v. U.S. (7th Cir. 1969),
407 F.2d 727, 735.
In accord: U.S. v. Hankish (4th Cir. 1974), 502 F.2d 71; u.S.
v. Jones (4th Cir. 1976), 542 F.2d 186; State v. Keliiholokai
(1977), 58 Haw. 356, 569 P.2d 891, It is noted that those courts
that have adopted this rule, with the exception of the Hawaii
Court, have apparently done so in their supervisory capacity over
trial courts and not because the procedure is mandated by consti-
tutional due process requirements.
A contrary view has been taken by the Kansas Supreme
Court. That court adopted the rule that where the record on
appeal fails to show that a single member of the jury was aware
of the publicity and when it does not appear the publicity was
massive, pervasive or disruptive of trial proceedings, no trial
error appears for there is no showing that defendant was deprived
of a fair trial. Its rationale appears in the following passage:
"In our judgment the disposition of this point
is governed by State v. Smith, 215 Kan. 34, 523
P.2d 691, and State v. Potts, 205 Kan, 42, 468 P.2d
74. In Smith we held that a motion to inquire
during trial is not a proper method to determine
if members of a jury are aware of prejudicial arti-
cles published by a newspaper during a trial, A
similar situation was before the court in Potts where
we stated that an inquiry pertaining to newspaper
publicity during the trial may place prejudicial
matter before the jury and create a basis for a mis-
trial and that the trial of a case should not be
interrupted for inquiry on each article published
by the news media. In Potts in refusing to reverse
a criminal case on the grounds of prejudicial news-
paper publicity we emphasized that no attempt was
made at the hearing on the motion for a new trial
to show that any member of the jury was aware that
such an article had been published. The rule to be
followed is that where the record on appeal fails
to show that a single member of the jury was made
aware of the publicity and when it does not appear
the publicity was massive, pervasive or disruptive
of the trial proceedings, no trial error appears
for there is no showing that defendant was deprived
of a fair trial. Here the record on appeal fails
to show that a single member of the jury was made
aware of the newspaper publicity or that the pub-
licity was massive, pervasive or disruptive of the
trial proceedings. In order to prove that members
of the jury were aware of the newspaper article,
counsel for the defendant could have requested a
poll of the jury after it returned its verdict. In
the alternative he could have subpoenaed the jurors
on motion for a new trial to show that they had know-
ledge of the article. Under the circumstances we
hold that there has been no showing that the defen-
dant was deprived of a fair trial because of preju-
dicial newspaper publicity." State v Stewart (1976),
.
219 Kan. 523, 548 P.2d 787, 793-94.
In accord: Louisiana v. Hegwood (1977), La. , 345 So.2d
1179; Commonwealth v. Nolin (1977), Mass. , 364 N.E.2d 1224.
We are not persuaded to adopt a rule requiring a trial
judge in every case where a prejudicial news release is brought
to his attention during the course of a trial to launch an immed-
iate inquiry of the jurors to determine whether they are aware of
the offending publicity and if so, the effect of such publicity.
We prefer to leave that to the trial judge's judgment and discre-
tion, subject to his later review after verdict on appropriate
motion, and our review on appeal. There are several reasons for
this. A mandatory, affirmative requirement of an immediate
juror inquiry is an inflexible rule denying the trial judge
discretion in controlling trial proceedings. Such inquiry might
inject error into the trial where none existed before. An
immediate, mandatory inquiry during the course of trial into
every news article, radio broadcast or telecast that is poten-
tially prejudicial in the fertile mind of defense counsel might
well disrupt trial proceedings unnecessarily and divert the at-
tention of the jurors from their principal function of determin-
ing the guilt or innocence of the defendant under the evidence
produced at the trial. Finally, the need for such a rule is
questionable as the defendant's right after verdict to inquire in-
to, develop and indicate any prejudice is preserved. On appeal,
the ruling of the trial judge on juror inquiry is subject to review.
We proceed to a determination of whether the prejudicial
news releases in this case tainted the jury, bearing in mind the
general rule enunciated by the Supreme Court of the United States:
"The trial judge has a large discretion in ruling
on the issue of prejudice resulting from the
reading by jurors of news articles concerning
the trial. (Citation omitted.) Generalizations
beyond that statement are not profitable, because
each case must turn on its own special facts."
Marshall v. U.S. (1959), 360 U.S. 310, 79 S.Ct.
1171, 3 L Ed 2d 1250.
The record in this case does not indicate continuous and
massive publicity pervading the entire community which had a slop-
over effect on the jury as in Estes v. Texas (1965), 381 U.S. 532,
85 S.Ct. 1628, 14 L Ed 2d 543, or Sheppard v. Maxwell (1966),
384 U.S. 333, 86 S.Ct. 1507, 16 L Ed 2d 600. Nor is it a case
where several of the jurors admitted having read the prejudicial
news article as in Marshall v. U.S., supra.
The core of this case is whether defendant was denied a
fair trial by reason of three news releases, two of which were
the day before the trial and the third on the first day of trial.
The record before us is barren of any indication that any juror
was aware of the news releases. Defense counsel was permitted
to voir dire the prospective jurors on their knowledge of notoriety
in press. The selected jurors indicated they had not been influ-
enced by media reports and they would render a verdict based only
on the evidence introduced at the trial. At the time of voir dire
examination of the prospective jurors, defense counsel was aware
of an attempt to brand his client as a paid assassin. A month
prior to trial the prosecution had filed an affidavit to the effect
that the police had received information that defendant was hired
by unknown person(s) to shoot and kill Sparboe. Four days before
trial, defense counsel had filed an affidavit disclosing his know-
ledge of an attempt to brand his client as a paid assassin. Under
such circumstances the District Court's denial of defendant's mo-
tion after 3-1/2 days of trial to interrogate the jurors on their
exposure to the two news releases of April 17 was not an abuse of
discretion.
The news release of April 18 occurred after the jury was
sworn and the trial had commenced. Thus the jury was not interro-
gated on their exposure to this release. This telecast contained
the same information included in the two news releases prior to
trial, specifically that police had received information that the
defendant was hired by an unknown person or persons to shoot and
kill Sparboe. We find no reason to treat this telecast any dif-
ferently in our analysis than the first two news releases.
Additionally we have previously pointed out the admonitions
of the trial judge and his instruction to the jury. We further
note that no facts were submitted on defendant's motion for a new
trial indicating that any juror had been exposed to any of the
three news releases.
For the foregoing reasons, we hold that the trial judge
did not abuse his discretion in denying the defendant's motion
for interrogation of the jury on April 21.
Defendant's attack on the jury instructions is without
merit. He contends that the instruction on attempted deliberate
homicide is unconstitutional because the death penalty could be
imposed. This attack fails for the reasons previously discussed
under defendant's first specification of error and will not be
repeated here.
Defendant argues that the District Court should have
granted him a new trial because the victim Sparboe referred to
an item not in evidence.
During his testimony Sparboe apparently took a beeper or
pocket pager from the clothes he was wearing at the trial, indi-
cated it was in his shirt pocket when he was shot, and that the
bullet struck off it and broke a pen in the same pocket. Defen-
dant's counsel asserts he did not hear this testimony at the trial,
accordingly did not object, and only learned of it the next day.
On appeal, defendant contends the prosecution suppressed this ex-
culpatory evidence entitling him to a new trial.
This evidence was not suppressed by the prosecution. The
state did not take possession of the pager nor consider it evidence.
After defendant learned of its existence at trial, he did not at-
tempt to have it admitted in evidence during the succeeding four
days of trial. He did not request a continuance. He did not seek
its admission in evidence or request the prosecution to do so. Evi-
dence is not withheld or suppressed if the defendant has knowledge
of the facts or circumstances, or if the facts become available
to him during trial. State v. Rueckert (1977), 221 Kan. 727, 561
P.2d 850. See also Beasley v. State (F1a.Dist.A~~.1975), 315
So.2d 540; Roman v Commonwealth (1977),
. KY , 547 S.W.2d
128; James v. State (1977), Tex . , 546 S.W.2d 306.
The final specification of error is that the sentence of
30 years in the State Prison at hard labor without eligibility
for parole or participation in the prisoner furlough program
constitutes cruel and unusual punishment in violation of the
Eighth Amendment to the United States Constitution.
Here the sentence was within the statutory limits.
MCA.
Section 46-18-502 (1) and 46-18-202 (2),/ A sentence within statu-
tory limits is presumed not to be cruel and unusual punishment.
U. S v. Kuck (10th Cir. 1978), 573 F.2d 25.
. We have held this
to be the general rule. State v. Karathanos (1972), 158 Mont.
461, 493 P.2d 326. Defendant has the burden of proving by a pre-
ponderance of the evidence that his sentence falls within an ex-
ception to the general rule. In re Jones (1978), Mont . I
578 P.2d 1150, 35 St.Rep. 469. Here defendant has not done so.
Thus his specification of error lacks substance.
Affirmed .
Chief Justice