No. 89-300
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JACK LEE CAMPBELL, a/k/a JAMES AUSTIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Blaine Anderson, Jr., Dillon, Montana
Vincent J. Kozakiewicz, Dillon, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Elizabeth S. Baker, Asst. Atty. General, Helena
Thomas R. Scott, County Attorney; Calvin J. ~ r b ,
Deputy,
Dillon, Montana
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Submitted on Briefs: Jan. 4, 1990
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Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Jack Lee Campbell appeals from a jury verdict in the Fifth
Judicial District Court, Beaverhead County. He was convicted of
deliberate homicide, robbery, theft, and two counts of tampering
with or fabricating physical evidence. We affirm.
The issues are:
1. Was Campbell denied a fair trial by prosecutorial
misconduct during his cross-examination and during closing
argument?
2. Did the District Court err in denying Campbell's requested
instruction on flight?
On the afternoon of August 4, 1988, a body was found near the
railroad tracks just north of Dillon, Montana. The victim had only
a small amount of change and no identifying information on his
person. He was later identified as Russell Junior Stubblefield,
a/k/a Ronald Smith, a transient who had been seen in the Dillon
area for several weeks. The victim had died from a subdural
hematoma as the result of multiple severe injuries to the head.
His injuries included a fractured nose, fractures of both the upper
and lower jaws, a deep laceration of the jaw, bruised lips and
eyes, swollen nose tissue, a laceration on the scalp, and a large
hinge fracture at the base of the skull. He also had minor
injuries indicating that he had been dragged across the ground
prior to his death. At the autopsy conducted on the morning of
August 5, the pathologist estimated the victim had been dead one
to two days.
The State's case against Campbell was based on circumstantial
evidence. The evidence at trial showed that Campbell had been seen
with the victim in and around Dillon for several weeks prior to the
homicide. Campbell testified that he had been a transient for some
fourteen years and had last been employed as a cherry picker in
Oregon for two weeks in June 1988. Campbell and the victim had
appeared together at the welfare and unemployment offices on
several occasions, applying for food stamps and work. The victim
had told a welfare agent that he and Campbell were traveling
together. Both men listed their addresses, on their applications
for food stamps, as camped along Highway 91 north of Dillon.
The State presented evidence at trial that on August 1, 1988,
the victim had received a $569 money transfer through the Dillon
Western Union office. That night, he rented a motel room for two
people. A maid identified Campbell as an occupant of the room.
Campbell was last seen with the victim on the evening of
August 3 , 1988. They were drinking beer in the area where the
victim's body was later found. That night, Campbell rented a motel
room in Dillon. The next morning he purchased a bus ticket and
went to Idaho Falls, Idaho.
In Idaho Falls, Campbell Iflived it up1' for several days. He
checked into the Quality Inn, where he stayed for four nights. He
went out for fast food. In addition to buying six-packs or twelve-
packs of beer in grocery stores, he drank mixed drinks in bars, at
one of which he exhibited a large sum of cash and bought a round
of drinks for the house. On August 8, Campbell returned to Dillon
on a freight train. He was arrested the next day.
At the time he was arrested, Campbell had in his possession
all of the food stamps which had been issued to the victim on
August 3. Several articles of his clothing were stained with blood
which was consistent with the victim's. All but one set of the
clothes in Campbell's possession appeared to have been freshly
laundered.
Additional evidence produced by the State included Campbell's
fingerprints on several beer cans found at the site where the
victim was killed and footprints matching Campbell's at the same
site. Partially-burned papers revealing the victim's identity were
found in a fire ring near where the body was found.
Campbell relied on an alibi defense, claiming that he had not
been at the scene of the homicide on August 4. In his testimony,
he described in detail his activities during the summer months of
1988 and testified that the cash for his Idaho trip was money he
had saved over the summer. He testified that he had purchased the
food stamps later identified as the victim's from an unknown
transient in Idaho Falls. He further testified that his associa-
tion with the victim was much less extensive than that claimed by
the State and denied traveling with, camping with, staying in the
motel with, or visiting the welfare and unemployment offices with
the victim. Much of the extensive cross-examination was devoted
to developing inconsistencies in Campbell's testimony.
I
Was Campbell denied a fair trial because of prosecutorial
misconduct during his cross-examination and during closing
argument?
Campbell makes several arguments which we have grouped under
this issue. First, Campbell argues that it was improper for the
county attorney to ask him, during cross-examination, whether he
believed another witness was lying. He also claims misconduct in
that, in the county attorney's closing argument, the county
attorney called Campbell a liar and expressed his personal opinion
that Campbell was guilty. Last, Campbell argues that the cumula-
tive effect of these errors deprived him of a fair trial.
The county attorney asked Campbell the following questions on
cross-examination:
Q. Okay. Let's talk about the second time
that you talked to Sheriff Later and I. Do
you recall telling Sheriff Later that you made
$60 in Helena working two days?
A. No, sir, I do not.
Q. If Sheriff Later came in and testified to
that fact he'd be lying?
A. I wouldn't know if he was lying or not.
But I never made no statement to that fact.
Q. Well, if you never made that statement to
him, then he'd be lying; wouldn't he?
Campbell's counsel objected that "[hie's requiring the witness to
harass another witness." The court overruled the objection. The
county attorney continued with another question and never received
an answer to the last question above.
Campbell cites State v. Armstrong (1980), 189 Mont. 407, 616
P.2d 341. In that case, the prosecutor began writing ffliesuor
"liarn on a chalkboard as he cross-examined the defendant. Defense
counsel objected, the court sustained the objection, and the jury
was admonished to disregard statements of counsel not based upon
the evidence. Armstronq, 616 P.2d at 353.
Unlike Armstronq, in the present case the county attorney did
not characterize anyone as a liar. He asked the defendant to
characterize someone as a liar. The rationale in Armstronq dealing
with statements of counsel not based upon the evidence does not
apply. Although Campbell has cited cases from several juris-
dictions which have held that asking a defendant to characterize
another witness as a liar is error, the State has cited several in
which such questions were ruled not erroneous. This Court has
held that "[wlhen a defendant goes upon the witness stand in his
own behalf, and denies the commission of the crime with which he
is charged, a very wide latitude of cross-examination is allowed."
State v. Rhys (1909), 40 Mont. 131, 136, 105 P. 494, 496. In the
absence of an answer to the question, we are unwilling to use it
as grounds for reversal.
Campbell next objects to the State's characterization of him,
in closing argument, as a liar. No objection was made to the first
characterization, in which the county attorney explained his long
cross-examination of Campbell as the only way to expose a "patholo-
gical liar. During defense counsel s closing argument, he said
that Campbell was ''not the type of man who's just going to come in
here and make up a story to cover for himself . I 1 Campbell's counsel
also stated in his closing argument that Campbell was 'Ithe most
candid witness we've had, or at least at the top of the heap." In
the State's rebuttal argument, the county attorney listed all of
the situations where Campbell's testimony conflicted with his
earlier statements, as examples of Campbell as a liar.
As to the first reference to Campbell as a llpathological
liar, Campbell argues that he had a continuing objection from his
objection to use of the word llliar"on cross-examination. We
conclude that these were divergent enough in time and subject
matter that a new objection was required. We will not review the
reference where no objection was made at trial. State v. Wiman
(Mont. 1989), 769 P.2d 1200, 1204, 46 St.Rep. 279, 286. The
prosecution's extensive characterization of Campbell as a liar in
rebuttal was made in response to the defense characterization of
him during its closing argument. We have held that no error may
be claimed where the prosecutor's actions were provoked by defen-
dant's counsel. State v. Close (1981), 191 Mont. 229, 242, 623
P.2d 940, 947. We hold that the characterizations of Campbell as
a liar are not reversible error for that reason.
Campbell claims that, at the end of his closing argument, the
county attorney improperly gave his personal opinion that Campbell
was guilty. The challenged remarks were as follows:
Ladies and gentlemen of the jury, the worst
thing in the world and the last thing that
this office wants to do is convict an innocent
man.
Defense counsel objected and was overruled. The county attorney
continued:
But the second to the last thing that we want
to do is turn a guilty man loose. I ask you,
ladies and gentlemen of the jury, don't turn
this man loose. Look at the evidence, look at
what we've shown. The inescapable conclusion,
who done it? Jack Lee Campbell. Thank you.
The law on prosecutorial comments about the guilt of an
accused has been described as follows:
It has been declared that, generally speaking,
the duty of a prosecuting attorney, if con-
vinced of the guilt of an accused, is to lead
the jurors to a like assessment by pointing
out to them, intelligently and impartially,
that evidence which cannot reasonably justify
any other conclusion; and that the better way
of fulfilling such duty is to confine his
argument to a fair effort to produce such a
belief in the jurors1 minds without directly
expressing the prosecutor's personalized views
as such. In those instances in which a prose-
cutor's personalized argument has been con-
sidered misconduct, it has occasionally been
reasoned that the expression of the prose-
cutor's knowledge of, belief in, or opinion as
to guilt constitutes an invasion of the
province of the jury and a usurpation of its
function to declare the guilt or innocence of
an accused and, moreover, that there is a
danger that the jurors might, consciously or
unconsciously, accept or adopt the prosecu-
tor s views instead of exercising their in-
dependent judgment as to the conclusion to be
drawn from the testimony. On the other hand,
it has also been stated that the more practi-
cal and substantial reasons for considering a
prosecutor's personalized argument improper
are that the prosecutor's expression of his
own views injects into the case irrelevant and
inadmissible matters or a fact not legally
proved by the evidence, and adds to the proba-
tive force of the testimony adduced at the
trial the weight of the prosecutor's personal,
professional, or official influence. Thus,
there are several different theoretical bases
underlying the rules concerning the propriety
of a prosecutor's personalized argument. . .
Annotation, Propriety and Prejudicial Effect of Prosecutor's
Argument to Jury Indicating His Belief or Knowledge as to Guilt of
Accused--Modern State Cases, 88 A.L.R.3d 449, 454-55 (1978).
In State v. Musgrove (1978), 178 Mont. 162, 582 P.2d 1246,
rev'd. on other grounds after remand, 202 Mont. 59, 655 P.2d 982,
the following statement by the prosecuting attorney was challenged:
We told you that we were going to give you
every shred of evidence that we had, whether
it was good or bad because we were convinced
that all the evidence would convince you
beyond a reasonable doubt the defendant was
responsible for the death of John Linker.
Now, we have kept our bargain. And after
hearing all this testimony, I'm convinced that
Musgrove is a liar and he is responsible.
Musqrove, 582 P.2d at 1252.
This Court reasoned that
The first statement of the prosecutor that we
have quoted above appears to be based on his
analysis of the evidence and is a matter on
which he could properly argue. Therefore no
improprieties exist with respect to that
portion of the closing argument. However,
with respect to the second portion of the
argument which we have quoted above, the
prosecutor is expressing his personal opinion
as to the guilt or innocence of the accused
and it is therefore highly improper.
Musqrove, 582 P.2d at 1252.
In the present case, the county attorney did not state that
he believed Campbell was guilty. He said that the inescapable
conclusion from the evidence was that Campbell had committed the
crimes. His remarks do not imply any knowledge separate from the
evidence at trial: "Look at the evidence, look at what we've
shown. We conclude that the county attorney s remarks in closing
argument do not constitute reversible error.
Finally, Campbell argues that he was denied a fair trial based
on the cumulative effect of the cross-examination and closing
argument discussed above. While Montana recognizes that the
accumulation of errors may prejudice a defendant's right to a fair
trial, mere allegations of error without proof of prejudice are
inadequate to satisfy the doctrine. State v. Grant (1986), 221
Mont. 122, 137, 717 P.2d 562, 572. In this case, the prosecution's
challenged remarks and questions when viewed in the context of the
lengthy trial were not prejudicial. The circumstantial evidence
against Campbell was compelling. Campbell's own testimony was
preposterous. In light of the entire record, we conclude that
Campbell has not shown that he was prejudiced by the challenged
questions and remarks.
The Court takes this opportunity to remind prosecuting
attorneys of the provision of Rule 3.4(e) of the Montana Rules of
Professional Conduct prohibiting a lawyer from stating in trial a
personal opinion as to the guilt or innocence of an accused.
Was the flight instruction given by the District Court
erroneous?
The District Court instructed the jury, at Instruction No. 20:
If you are satisfied that the crime charged in
the information has been committed by someone,
then you may take into consideration any
testimony showing, or tending to show, flight
by the defendant. This testimony may be
considered by the jury as a circumstance
tending to prove a consciousness of guilt, but
is not sufficient of itself to prove guilt.
The weight to be given such circumstance and
significance, if any, to be attached to it are
matter [sic] for the jury to determine.
Campbell argues that the court failed to instruct the jury on
motives for departure inconsistent with consciousness of guilt. He
asserts that his leaving Dillon on August 4 can be explained by
his transient lifestyle. He maintains that the court should have
used his offered flight instruction instead of the one offered by
the State.
The flight instruction given the jury was taken from the
Montana Criminal Jury Instructions (1983). It accurately reflects
the law. See State v. Burk (Mont. 1988), 761 P.2d 825, 828, 45
St-Rep. 1777, 1782. The instruction would have allowed the jury
to find that CampbelllsAugust 4 bus trip did not show flight. We
hold that the flight instruction given was not erroneous.
Affirmed.
We concur:
Justices