State v. Fuhrmann

NO. 95-210
IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,
Plaintiff and Respondent,

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Office, Helena,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Pamela P.
Collins, Assistant Attorney General, Helena,
Montana; Dennis Paxinos, Yellowstone County
Attorney, Daniel Schwarz, Deputy Yellowstone County
Attorney, Billings, Montana

Submitted on Briefs: July 11, 1996
Decided: October 18, 1996'
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Appellant Frank Fuhrmann (Fuhrmann) was charged by information

filed in the Thirteenth Judicial District Court, Yellowstone
county, with one count of deliberate homicide. After a jury trial,
Fuhrmann was found guilty of the crime charged and sentenced to a

term of years at the Montana State Prison. Fuhrmann appeals.
We affirm.

Fuhrmann raises two issues on appeal:
1. Did the District Court err in admitting hearsay testimony

of statements made by the victim?

2. Did the District Court err in denying Fuhrmann's motion

for a change of venue?

FACTS

This case arose out of a series of events that occurred in
Billings, Montana on the evening of July 7, 1993 and into the early

morning hours of July 8. At about 7:30 p.m. on July 7, the victim,

Charlie Turner (Turner) was given a ride by a friend to the tattoo

parlor operated by Fuhrmann. Fuhrmann and Turner had begun a

relationship three months earlier when Fuhrmann gave Turner a

tattoo in exchange for Turner's promise to do odd jobs around the

tattoo parlor and help with Fuhrmann's window washing business.

When Turner arrived at the tattoo parlor that evening, he and

Fuhrmann discussed the rumor that marijuana plants were growing on

the Rimrocks area north of Billings. They decided to drive up to

investigate. Turner was a 15 year old boy, Fuhrmann a 32 year old

adult.

2
 On the way to the Rimrocks, Fuhrmann stopped at his apartment
to gather a flashlight, a plastic garbage bag, a blanket, and a

Kershaw knife. A Kershaw knife is unique in that different style

blades can be inserted into the handle. Fuhrmann chose a fillet

blade, inserted it into the handle, and placed the knife in an
inside pocket of the black leather jacket he was wearing. Fuhrmann

stated that he brought the knife to cut the marijuana plants.
Fuhrmann did not inform Turner that he was carrying ~the knife.

Fuhrmann drove them up to the Rimrocks and parked his car near

Swords Park. The two then walked to an area of cliffs overlooking

Alkali Creek. There, according to Fuhrmann, they sat on a boulder,

smoked cigarettes, and decided that they would search for the

marijuana plants the next day during daylight hours. They then

began to walk back to Fuhrmann's car, with Turner in the lead.

Fuhrmann was carrying the knife in one hand, the other items in his

other hand. Fuhrmann contends that they had not gone more than a

few steps when Fuhrmann fell forward, his momentum causing the

knife in his outstretched hand to plunge into Turner's upper right

buttock.

According to Fuhrmann, Turner turned around and exclaimed "you

have a knife?" then ran off in the direction of Airport Road, the

main thoroughfare on top of the Rimrocks. Turner began trying to

flag down passing vehicles. Fuhrmann caught up with Turner at the

edge of Airport Road, where Fuhrmann contends he offered Turner the

knife, handle first, as a gesture of peace. Fuhrmann maintains

that Turner grabbed the knife, slashed Fuhrmann across the face,

3
and would have inflicted more damage had Fuhrmann not disarmed
Turner during an ensuing struggle. The drivers of vehicles that

passed by the scene on Airport Road that night provide information

to complete the story of these events.

Dorothy Semmann, who had just left Deaconess Hospital at 11:30

p.m. following her work shift as a nurse, was the first witness on

the scene. Ms. Semmann was driving near Alkali Creek on Airport

Road when she saw a young man appear from the side of the road into

the light cast by her headlights, waving his hands. Her urge to
stop to help ended abruptly when she saw another man approaching

from the side of the road and she thought she was the intended
victim of a car-jacking. Ms. Semmann drove home and called 911.

She had not seen blood on either of the men.

Chelsea Kenyon and her friend Amy Vicars were also driving on

Airport Road in the area of Alkali Creek that night when two men

ran on to the road, the younger of whom approached Ms. Kenyon's

driver's side window. Ms. Kenyon became frightened and drove on,

but curiosity overcame her after a couple of minutes so she drove

back to determine what was happening. Ms. Kenyon had not seen

blood on either of the men.
When Ms. Kenyon returned, she saw the younger man lying in the

road. Two other motorists, Clark Allard and Terrill Bracken, had

stopped and were attending to the younger man, Turner. At this

point, Ms. Kenyon observed that Turner was lying in a pool of

blood, was having difficulty breathing, and was continuing to bleed

profusely.
 Mr. Allard had arrived at the scene moments before MS.

Kenyon's return. Mr. Allard slowed his car after he saw two men in
the road, one lying on the ground, the other standing above him
with one hand holding the prone man's left leg and the other hand,

Allard testified, making a backhand slashing motion over the prone
man's body. As Mr. Allard pulled along side the men, he heard the

prone man, Turner, say "Help me. Help me. He stabbed me." Mr.
Allard stopped his car, got out, and began to approach the men, but
hesitated after Fuhrmann began walking toward him with a knife in

his hand. Mr. Allard then flagged down a passing car driven by Mr.

Bracken.

Mr. Bracken disarmed Fuhrmann while Mr. Allard applied

pressure to Turner's numerous stab wounds. At this time, Bracken,

Allard, Ms. Kenyon, and Tisha Pfieffer, another motorist who had

stopped at the scene, were all witness to statements made by Turner

concerning the cause of his injuries: Turner stated that Fuhrmann
stabbed him "on purpose," and that the stabbing was "no accident."

The admissibility of these statements is the subject of the first

issue Fuhrmann raises on appeal.

Turner was rushed to Deaconess Hospital, and was unconscious

and in shock upon arrival. After more than three hours of surgery,

doctors were still unable to stop Turner's vigorous bleeding.
Turner's massive blood loss caused him to suffer cardiac arrest at

about 9:00 a.m., July 8. Turner was pronounced dead at 9:37 a.m.

Attending doctors had discovered a dozen separate stab wounds, the
most serious of which were a deep wound in Turner's right buttock

5
and a longer slash across the inner part of his upper right arm
which severed his brachial artery. The State offered expert

testimony at trial that the wound to Turner's buttock was nearly 5

inches deep, and that the configuration of the wound suggested that

a knife had been inserted and withdrawn in two separate motions.

Many of the other wounds were characteristic of wounds received by

a person attempting to defend himself from a knife attack.

Fuhrmann was charged by information filed on July 13, 1993, in
the Thirteenth Judicial District Court, Yellowstone County, with

deliberate homicide. Fuhrmann pleaded not guilty to the crime

charged, and subsequently raised the defense of justifiable use of

force. Prior to trial, Fuhrmann filed a number of motions in

limine. Most importantly for our review was his motion to exclude

testimony concerning remarks made by the victim, Turner, to the

effect that Fuhrmann's actions were on purpose or not an accident.

The District Court admitted the testimony, and after a jury trial

that began March 7, 1994, Fuhrmann was found guilty of the crime

charged.

About a week after the conclusion of the trial, Chief Deputy

County Attorney Daniel Schwartz received a call from the jury

foreman, who wanted to discuss the case. During their

conversation, Schwartz discovered that one of the jurors had

conducted an experiment during the course of the trial. Schwartz

immediately notified the court and defense counsel, and after a

hearing, the court granted Fuhrmann's motion for a new trial.
 Before his second trial, Fuhrmann moved the court for a change
of venue due to the publicity his case was receiving in the

community of Billings. Fuhrmann informed the court that he had

received three separate death threats, all prior to his first

trial. The court denied Fuhrmann's motion. Fuhrmann also renewed
the motions in limine he had filed prior to his first trial.
Again, the court denied Fuhrmann's motion to exclude testimony
concerning statements made by Turner regarding Fuhrmann's actions.

At the commencement of Fuhrmann's retrial on October 18, 1994)
Fuhrmann again moved for a change of venue. The court denied his

motion, and after a jury trial Fuhrmann was found guilty of

deliberate homicide and was sentenced to a term of years at the
Montana State Prison. Fuhrmann appealed.

ISSUE ONE

Did the District Court‘ err in admitting hearsay testimony of

statements made by the victim?

This Court will not overturn a trial court's evidentiary

ruling absent an abuse of discretion. State v. Stringer (1995),

271 Mont. 367, 374, 897 P.2d 1063, 1067; State v. Gollehon (1993),

262 Mont. 293, 301, 864 P.2d 1257, 1263. Therefore, we must

determine whether the District Court abused its discretion in

admitting hearsay testimony of statements made by the victim,

Turner.

Fuhrmann argues in his briefs submitted to us that testimony

regarding Turner's statements should have been excluded by the

District Court because Turner's statements related to Fuhrmann's

7
state of mind and thus are inadmissible hearsay. In his motion in
limine before the District Court, Fuhrmann had two bases for his
argument why the hearsay testimony concerning Turner's statements

should be excluded. First, Fuhrmann argued that Turner's
statements went to Fuhrmann's state of mind, not his own, and thus

were inadmissible hearsay. Second, Fuhrmann argued that, under

Rules 701 and 704, M.R.Evid., the testimony was inadmissible

because it was layperson opinion testimony which addressed the

ultimate issue in dispute,. i.e. Fuhrmann's mens rea. The State

responded to the motion on each of these two bases, and the court

denied the motion.

On appeal, the State initially presents a procedural argument

as to why this Court should not review this issue raised by

Fuhrmann. The State contends that Fuhrmann has a different basis

for his argument on appeal than he did at the District Court level.

The State is correct in asserting that this Court adheres to the
rule that "a party may not change the theory on appeal from that

advanced on the District Court." State v. Henderson (1994), 265

Mont. 454, 458, 077 P.2d 1013, 1016. However, Fuhrmann's argument

before this Court, that Turner's statements are inadmissible

hearsay because they relate to Fuhrmann's state of mind, is one of

the two arguments that Fuhrmann raised at the District Court level.

While Fuhrmann's argument below did not cite Rule 803 (3),

M.R.Evid., specifically, it clearly referred to that Rule's "state

of mind" exception to the hearsay rule. Fuhrmann points us to two

federal cases interpreting Rule 103(a) (l), Fed.R.Evid., identical
in substance to Rule 103(a) (l), M.R.Evid., which hold that specific
objection is required "only where the specific ground would not be
clear from the context." Werner v. Upjohn Co., Inc. (4th Cir.
1980), 628 F.2d 848, 853; see also United States v. Musacchia (2d
Cir. 1990), 900 F.2d 493, 497. Moreover, this Court has approved
the use of a motion in limine to preserve an objection for appeal,

State v. Weeks (1995), 270 Mont. 63, 85, 891 P.Zd 477, 490 (citing
State v. Brown (1984), 209 Mont. 502, 506-07, 680 P.2d 582, 584-

85), provided the objecting party makes the basis for his objection

clear to the district court. Weeks
-I 891 P.2d at 490.
In his Fifth Motion in Limine, dated March 4, 1994, Fuhrmann

states:

The statements attributed to Turner relate to the alleged
state of mind and intent of Fuhrmann. While a witness
can testify about his/her state of mind, that witness
cannot testify about the state of mind of another. The
court has to ask itself the question, 'If a witness were
asked, "Did he do it on purpose?", would the court allow
the witness to answer the question?'

The District Court did not formally rule upon this motion prior to

Fuhrmann's first trial. However, Fuhrmann renewed all of his

motions in limine prior to his retrial. At that time, the District

Court denied Fuhrmann's Fifth Motion in Limine, but noted

Fuhrmann's objection to the admission of the statements and

relieved him of any obligation to object again at trial. We

conclude that the basis for Fuhrmann's argument in his motion in

limine was clear. His argument before us is grounded in the same

theory as was his argument below. Fuhrmann properly preserved his

objection and it is appropriate that we review it.
9
 Fuhrmann contends that testimony by those who witnessed Turner
state that Fuhrmann stabbed him "on purpose" and that the stabbing
was "not an accident" is inadmissible hearsay and should have been

excluded by the District Court. Hearsay is

a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.

Rule 801(c), M.R.Evid. Generally, hearsay is inadmissible, but the

rules of evidence provide certain exceptions. Rule 803(3),

M.R.Evid. provides an exception for

[al statement of the declarant's then-existing state of
mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain and
bodily health), but not including a statement of memory
or belief to prove the fact remembered or believed.

Fuhrmann argues that because Turner's statements regarding
Fuhrmann's intent address Fuhrmann's state of mind, the statements

do not fall within the exception provided by Rule 803 (3) and
therefore any testimony concerning these statements is inadmissible

hearsay. Fuhrmann also argues that Turner's statements that

Fuhrmann purposely stabbed him are statements of belief to prove

the fact believed, precisely what is disallowed by the last clause

in the text of Rule 803(3).

The State argues that Turner's statements do address his own

state of mind, and thus fit within the hearsay exception provided

by Rule 803(3). The State contends that by claiming justifiable

use of force, Fuhrmann opened the door for the State to rebut his

defense with Turner's statements, which indicated Turner's fear of

10
Fuhrmann and that Turner did not believe that he initiated or
provoked the stabbing. The State cites State v. Losson (1993), 262
Mont. 342, 348, 865 P.2d 255, 258, and State v. Magruder (1988),

234 Mont. 492, 496, 765 P.2d 716, 719, to support its contention.
The State also raises alternative arguments, that Turner's

statements fit within two other exceptions to the hearsay rule. We

decline to discuss these arguments, as the record reveals that the

State has raised them for the first time on appeal. Henderson, 877

P.2d at 1016.

Some of the analysis and logic in the arguments proposed by
both Fuhrmann and the State is creative, but not entirely correct.

Both the State and Fuhrmann cite Magruder and Losson in their

respective briefs, and both failed to discuss important points

raised in those cases.

In Magruder, this Court affirmed the district court's

admission of testimony of a victim's statements. The victim's

daughter testified that the victim "seemed worried after the

[telephone] conversation [with the defendant1 and told her that

he'd better be 'packing a piece' because Mr. Magruder would be

packing a piece and would be [at their home] later." Magruder, 765

P.2d at 717. The majority concluded that the victim's statements

avoided the hearsay bar because they fit within the "state of mind"

exception provided by Rule 803(3), M.R.Evid. The majority

determined that the statements were evidence of the victim's state

of mind, that he was afraid of the defendant. Maqruder, 765 P.2d

at 718-19. Defendant had raised the defense of justifiable use of
force, and the majority concluded that evidence that the victim
feared the defendant was relevant. Maqruder, 765 P.2d at 719
(citing United States v. Brown (D.C. Cir. 1973), 490 F.2d 758,

767). The majority pointed out that the statements were not

offered for their truth, but only to show the victim's state of
mind. In support, the majority noted that the district court had

given a limiting instruction to the jury, that the testimony was

not offered to prove the truth of the matter asserted,
but rather to show the victim's then existing state of
mind. You are to consider the statements only in regard
to the victim's state of mind and for no other purpose.

Masruder, 765 P.2d at 718.

The dissent in Macruder, which relied heavily on Brown, 490

F.2d 758, stated that "the majority's handling of the hearsay

problem skims too lightly over the very problematic nature of the

testimony." Masruder, 765 P.2d at 720 (Sheehy, J., dissenting).

The dissenting justices were concerned that the testimony, if it

indeed was admissible under the "state of mind" exception to the

hearsay rule, was in any event so prejudicial to the defendant as

to be incurable by the court's limiting instruction. Macruder, 765

P.2d at 720-21 (Sheehy, J.,' dissenting). Although the following

point was not raised in the dissent, after our review of Maqruder

we note that while the majority on the one hand concluded that the

victim's statements fit within the "state of mind" hearsay

exception, Macruder, 765 P.2d at 718, it on the other hand

concluded that the statements were not offered for their truth, but

only to show the victim's state of mind. Maoruder, 765 P.2d at

12
719. In Losson, a later case, this court cleared up this
discrepancy.

In Losson, where the defendant raised the defense of
justifiable use of force, we affirmed the district court's

admission of testimony of the victim's statements. The victim's

statements, like the victim's statements in Maqruder, indicated his

fear of the defendant. We concluded that the statements were

relevant, Losson, 865 P.2d at 258, and then analyzed their
admissibility under the hearsay rule. Citing Brown, 490 F.2d at

762-63, we stated:
That court delineated the distinction between hearsay and
non-hearsay as it related to state of mind evidence. The
distinction turns on whether the statement is evidence
which directly proves the declarant's state of mind or
whether the statement is evidence which circumstantially
proves the declarant's state of mind.

Losson, 865 P.2d at 259 (emphasis added).

The testimony at issue in Losson involved three statements

made by the victim. The victim had stated that the defendant

"threatened to kill him in the past," and that the defendant "would

kill him if he ever moved out." We concluded that "these

statements circumstantially indicated [the victim's1 state of mind

toward [the defendant]; that he feared her." Losson, 865 P.2d at

259. We explained further:

The jury was instructed not to consider whether [the
defendant], in fact, threatened to kill or would kill
[the victim]. Instead, the jury was instructed to
consider [the victim's] state of mind; whether he was
afraid of [the defendant]. We hold that the first two
statements were not hearsay.

13
Losson, 865 P.2d at 259.
We concluded that the third statement made by the victim in

Losson was direct evidence of the victim's state of mind. The
third statement was that the victim "was afraid of his wife and
thought she was going to kill him." Since the statement contained
direct evidence of the victim's state of mind, we determined that

the State necessarily was offering the statement for its truth, and

that the statement therefore was hearsay. Losson, 865 P.2d at 259.

However, we held that the statement fit into the exception provided

by Rule 803(3) and was admissible. Losson, 865 P.2d at 259.
Based upon our analyses in Magruder and Losson, we reach the

following conclusions in the instant case. First, Turner's

statements that Fuhrmann stabbed him "on purpose" and that the
stabbing was "not an accident," if they can be construed as

providing evidence that Turner feared Fuhrmann, CEKl only be
construed as providing circumstantial evidence of Turner's fear.

Under that construction, the statements would be considered non-

hearsay and would be admissible. Losson, 865 P.2d at 259.

However, such statements must be offered only for the purpose of

showing the declarant's state of mind, and may not be offered for

the truth of the matters asserted. Where we have upheld a district

court's admission of such statements, we have considered the fact

that the district court issued a limiting instruction to the jury

explaining the purpose for which it could consider the statements.

Magruder, 765 P.2d at 718; Losson, 865 P.2d at 259.

14
 After reviewing the record in the instant case, we find no

indication that the District Court, in denying Fuhrmann's motion to
exclude testimony regarding Turner's statements, limited the
purpose for which the testimony could be offered. For that matter,
there is nothing in the record which would explain why the District
Court admitted the testimony at all. More importantly, the

transcripts reveal that the District Court did not at any time

issue limiting instructions to the jury explaining why the
testimony was being offered.

To prevent any potential prejudicial effect on a defendant,
and to uphold the integrity of both the hearsay rule and Rule

803(3)'s "state of mind" exception, a trial court must instruct the

jury as to the limited purpose for which it may consider this type

of testimony. However, both the trial court and this Court must

keep a vigilant eye toward the possible prejudicial effect of such

testimony even if a limiting instruction is given.

We hold that the District Court abused its discretion in

admitting testimony of Turner's statements without also giving a

limiting instruction as to why the testimony was being offered and

how the jury was to consider it. However, we consider this error

to be harmless, due to the independent evidence in the record upon

which a jury could base a guilty verdict: Turner had been stabbed

at least twelve times; one of Turner's most serious wounds, the

wound to his buttock, was received before he and Fuhrmann reached

the Airport Road; and, the.description of the wound to Turner's

buttock given by his attending physicians and by a State crime lab

15
expert was inconsistent with Fuhrmann's claim that he accidentally
stabbed Turner when he tripped and fell forward with a knife in his

outstretched hand.

Our conclusion that the District Court's error was harmless is

consistent with this Court's previous holdings regarding the

harmless error doctrine. Where federal constitutional error, such

as improper jury instruction, is involved, we have applied the

harmless error rule established by the United States Supreme Court

in Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824,

8.28, 17 L.Ed.Zd 705, 710-11: for error to be harmless, it must be

shown beyond a reasonable doubt that the error did not contribute
to the verdict obtained. State v. Rothacre (19951, 272 Mont. 303,

312-13, 901 P.2d 82, 88; State v. McKenzie (1980), 186 Mont. 481,

532, 608 P.2d 428, 458. In considering the prejudicial effect of

a district court's erroneous evidentiary ruling, a matter of state

law, this Court has stated that "[tlhe essential question is

whether there is a reasonable possibility that the inadmissible

evidence might have contributed to the conviction." Brodniak v.

State (1989), 239 Mont. llq, 115, 779 P.2d 71, 74; State v. Gray

(196X), 207 Mont. 261, 268, 673 P.2d 1262, 1266. This Court has

noted that the federal harmless error rule and Montana's harmless

error rule are essentially the same, and that in either case

overwhelming evidence of a defendant's guilt can render harmless a

district court's error. McKenzie, 608 P.2d at 458; Brodniak, 779

P.2d at 74. We conclude that there was overwhelming evidence of

16
Fuhrmann's guilt, and that the District Court's error did not
contribute to his conviction. We hold that the error was harmless.
ISSUE TWO

Did the District Court err in denying Fuhrmann's motion for a

change of venue?

This Court will not disturb a district court's denial of a

motion for change of venue absent an abuse of discretion. State v.
Moore (1994), 268 Mont. 20, 51, 885 P.2d 457, 477 (overruled on

other grounds, Gollehon, 906 P.2d 697). Therefore, we must

determine whether the District Court abused its discretion in
denying Fuhrmann's motion for a change of venue.

Section 46-13-203(l), MCA, states that a defendant is entitled

to
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.

Further, a motion for change of venue must be granted

when it appears there are reasonable grounds to believe
that the prejudice alleged actually exists and that by
reason of the prejudice there is a reasonable
apprehension that the accused cannot receive a fair and
impartial trial.

State v. Link (1981), 194 Mont. 556, 559-60, 640 P.2d 366, 368

(citing People v. Berry (Ill. 1967), 226 N.E.2d 591, 592-93).

Fuhrmann argues that there are three grounds upon which a

court could reasonably believe that prejudice actually existed in

the Billings community at the time of his retrial. First, Fuhrmann

points to three separate death threats that he received prior to
17
his first trial as indicative of the inflamed passions in the
community. Second, he claims that the large number of potential
jurors excused for cause and the large number of potential jurors

who had knowledge of the case prior to the retrial reflected the

widespread prejudice in the community. Third, Fuhrmann contends

that certain newspaper reports in the Billings Gazette constituted

prejudicial pretrial publicity and contributed to the community-

wide prejudice.

We dispose of Fuhrmann's first ground by noting that the death

threats were received prior to his first trial, where Fuhrmann did

not move for a change of venue. Fuhrmann does not allege that he
received any additional death threats prior to his retrial. As we

are reviewing the District Court's denial of Fuhrmann's motion for

change of venue in the context of his retrial, we see no need to

address this ground.

As to Fuhrmann's second ground, we do not agree that the fact

that a large number of potential jurors had prior knowledge of his

case is prejudicial and warrants a change of venue. We have held

that jurors1 knowledge of the case and publicity, without more, is

insufficient to warrant a change of venue since it cannot be

equated with prejudice. State v. Smith (1986), 220 Mont. 364, 378,

715 P.2d 1301, 1309; see State v. Ritchson (1982), 199 Mont. 51,

55, 647 P.Zd 830, 832. Moreover, it appears from the record that

the court was particularly careful to question individually those

jurors who indicated that they had some prior knowledge of the

case, and instructed the potential jurors and the jurors ultimately

18
chosen of their duty to render a verdict based solely on the
evidence presented at trial. We see no reason to question the
District Court's exercise of discretion in relation to this ground

presented by Fuhrmann.

Finally, we cannot agree with Fuhrmann that certain newspaper

articles in the Billings Gazette constituted prejudicial pretrial

publicity and contributed to a community-wide prejudice. A

defendant seeking change of venue on the ground of prejudicial

pretrial publicity must prove two elements. First, the defendant

must show that the publication at issue was inflammatory. Second,
the defendant must show that the publication actually inflamed the

prejudice of the community to the extent that a reasonable

possibility exists that he may not receive a fair trial. Ritchson,

647 P.2d at 832. The first element focuses on the nature of the

publicity while the second focuses on the effect. Ritchson, 647

P.2d at 832.

In State v. Nichols (1987), 225 Mont. 438, 734 P.2d 170, we

described inflammatory publicity as

editorializing on the part of the media or any calculated
attempt to prejudice public opinion against [defendant]
or to destroy the fairness of the pool from which
[defendant's] prospective jurors would be drawn.

Nichols, 734 P.2d at 173-74 (quoting State v. Armstrong (1980), 189

Mont. 407, 423, 616 P.2d 341, 350). The District Court read the

copies of eleven news reports from the Billings Gazette attached to

Fuhrmann's motion for changk of venue, dated August 19, 1994, and

did not discover any instances of 1'editorializing'1 or "calculated

19
attempts to prejudice public opinion." The District Court found
that the reports merely contained factual accounts of the
background of the case as well as the trial proceedings. Fuhrmann
notes that some reports contain references to his criminal history

and to the prosecution's initial theory that Fuhrmann had sexually

assaulted Turner. However, we conclude, as did the District Court,

that these bare statements were a part of "standard news accounts

of court events and filed 'information," news accounts that were

"devoid of editorializing.1'

To support his contention that the news reports inflamed the

prejudice of the community, Fuhrmann points to the death threats he

received prior to his first trial,,the number of potential jurors

in the jury pool with prior knowledge of the case, and a survey

conducted by a Montana State University professor which established

the Billings community's awareness of Fuhrmann's case. We have

already explained our unwillingness to consider the death threats
received prior to the first trial as indicators of alleged

prejudice surrounding the retrial some six months later. We have

also disposed of Fuhrmann's argument regarding potential jurors

with prior knowledge of the case; the record shows that the

District Court carefully and thoroughly questioned jurors who

admitted to having prior knowledge of the case, and, satisfied with

the panel ultimately chosen, instructed that group of its duty to

render a verdict based only on evidence produced at trial.

Finally, after reviewing the Montana State University

professor's survey, we would have to agree with the District

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Court's characterization of it: "inconclusive." 81% of the nearly
450 persons questioned in the survey stated that they had heard of

Fuhrmann's case. Of that percentage, 49% said they had an opinion
of Fuhrmann's guilt or innocence, and the remainder either did not
have an opinion or didn't know. Nearly all who had an opinion
believed Fuhrmann to be guilty, but only about half claimed it

would be very difficult to change their opinion. From the
information elicited in the survey we cannot conclude that pretrial

publicity inflamed prejudice in the Billings community, especially

in light of our determination that the news reports were not
facially inflammatory. See Moore
-I 885 P.2d at 478.

We are aware that surveys are appropriate means of determining

whether prejudice exists in a community. State v. Paisley (1983),

204 Mont. 191, 194, 663 P.2d 322, 324. Where we have acknowledged

a survey's results as supporting a court's grant of a motion to

change venue, we have noted the connection between the results of

the survey and extensive editorializing by the local newspaper

against the defendant. Paisley, 663 P.2d at 324.

In Paisley, a criminologist's survey submitted prior to

defendant's justice court trial concluded that the likelihood of

defendant receiving a fair trial depended upon the extent of

further trial publicity. The justice court trial received

"editorialized" publicity, and defendant's motion for change of

venue of his district court trial was granted by the district court

and affirmed by this Court. Here ( we conclude that there was no

editorializing by the Billings Gazette against Fuhrmann. There can

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be no connection indicating prejudicial publicity--the type of
connection we contemplated'in Paislev--between the Montana State

University survey and the Gazette news reports. See Moore, 885
P.2d at 478.
A passage from Moore, where we disagreed with defendant's

claim that prejudicial pretrial publicity mandated a change of

venue, summarizes our conclusions here:

Living, as we do, in a society which is continuously
inundated with news coverage by the print and broadcast
media, it is doubtful that most members of the community
will not share some knowledge of, or about, a locally
high-profile crime, and the various persons allegedly
involved in ,its commission or its investigation. Given
the inevitable conflict with the media's constitutional
right to free speech, the public's constitutional right
to know, and the accused right to a fair trial, it
remains the task of the district court, in such cases, to
scrupulously examine the evidence supporting a motion for
change of venue to insure that the jurors who will
ultimately decide the guilt or innocence of the accused
are fair minded and uninfluenced by what they may have
seen, heard, or read. That conclusion must necessarily
be based upon not only the jurors' responses in voir
dire, but also on a careful analysis of the quantity and
content of the pretrial publicity. Each case is unique
and must be decided on its own merits. Bousquet, 808
P.2d at 508. While this was a difficult case, we are
nonetheless satisfied that the trial judge
conscientiously considered this issue, and that despite
the pervasiveness of the media coverage, it was generally
balanced and fair. We conclude that the jurors who
decided [defendant's] fate were not disposed to guilt or
innocence by what they may have seen, heard, or read in
the media.

Moore, 885 P.2d at 479. The standard that must be met in order for

a change of venue motion to be granted is the existence of

"reasonable grounds to believe that the prejudice alleged actually

exists and that by reason of the prejudice there is a reasonable

apprehension that the accused cannot receive a fair and impartial
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trial.ll Link
-I 640 P.2d at 368 (citation omitted). After reviewing
the record, we hold that the District Court did not abuse its
discretion when it denied Fuhrmann's motion for change of venue,
impliedly concluding that such reasonable grounds did not exist.
Affirmed.

Justices

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