State v. Lindberg

November 18 2008

DA 06-0040

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 389

STATE OF MONTANA,

Plaintiff and Appellee,

v.

LAWRENCE ROLAN LINDBERG,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC-2003-519 (B)
Honorable Katherine R. Curtis, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender, Kristina Neal, Assistant Appellate
Defender, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant
Attorney General, Helena, Montana

Ed Corrigan, Flathead County Attorney, Lisa A. Adams, Deputy County
Attorney, Kalispell, Montana

Submitted on Briefs: February 28, 2007

Decided: November 18, 2008

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Lawrence Rolan Lindberg (Lindberg) appeals his conviction on two felony counts

of sexual assault, one felony count of sexual intercourse without consent, and one

misdemeanor count of sexual assault in the Eleventh Judicial District, Flathead County.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On December 23, 2003, Lindberg was charged with two counts of sexual assault

and one count of sexual intercourse without consent. The circumstances leading to these

charges are as follows. Lindberg began dating a woman, R.B., in 1995, and moved in

with R.B.’s parents in Columbia Falls, Montana. R.B.’s son (B.B.), R.B.’s two

daughters, H.B. and A.T., and another teenage boy, V.L., all lived in the home with

R.B.’s parents. H.B. was approximately eleven years old at the time, and A.T. was

approximately five. Lindberg and R.B. lived in the basement of the home. R.B. had a

drinking problem, and she and Lindberg would regularly drink together. At Lindberg’s

trial, H.B. testified that the first night he moved into the house he sexually abused her

when she got up to use the bathroom. H.B. claimed that Lindberg directed her into one of

the bedrooms and then touched her between her legs with his hands and mouth. H.B.

testified that Lindberg continued this course of conduct on a regular, sometimes daily,

basis for several years, touching her both under and over her clothing. At the time these

incidents were occurring, however, H.B. did not tell anyone about them.

¶3 According to A.T.’s trial testimony, Lindberg also committed similar acts against

her. A.T. testified that when she was five years old she had been sitting on Lindberg’s

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lap in the basement with him and R.B. watching television. When her mother left the

room, Lindberg unbuttoned A.T’s pants, put his hands down her pants and rubbed her

vagina area. A.T. testified that before R.B. came back into the room Lindberg warned

her not to tell anyone about the incident or she would be hurt. At the time, A.T. did not

tell anyone about the incident. According to her testimony, this was the only sexual act

Lindberg committed against her during this time.

¶4 Around 1998, Lindberg and R.B. separated for a few years, reuniting sometime in

2000 or 2001. Sometime after Lindberg moved out of the house, A.T. allegedly told

some peers about Lindberg’s conduct against her, but did not relate this incident to any

adults or authority figures. According to trial testimony, H.B. maintained her silence

concerning Lindberg’s conduct. In 2002, Lindberg and R.B. moved back into the

grandparents’ home, staying in B.B.’s bedroom instead of the basement, while B.B.

stayed in a bed in his grandparents’ bedroom. When Lindberg moved back into the

home, he was working as a trucker regularly travelling out-of-state. He would be gone

for periods ranging from weeks to months, and then return to Columbia Falls for a few

weeks at a time. R.B. would accompany him on these trips. H.B. testified that once

Lindberg returned to the home, he continued the unwanted sexual contact, grabbing her

chest and trying to kiss her. H.B. told Lindberg not to do this, and Lindberg eventually

left her alone. However, Lindberg allegedly resumed his sexual conduct against A.T.,

who was then approximately eleven years old. A.T. testified that Lindberg’s sexual

conduct against her was not as “bad” as the first instance several years prior, but much

more consistent. A.T. claimed that Lindberg would touch and squeeze her breasts and

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buttocks on many occasions. A.T. testified that she attempted to avoid being alone at the

house with Lindberg. A.T. estimated that Lindberg had touched her approximately thirty

times during this time period.

¶5 A.T. recounted specific instances of the alleged sexual contact to the jury during

trial. In one incident, one of A.T.’s friends, a teenage boy named M.T., allegedly

witnessed sexual conduct by Lindberg against A.T. A.T. claimed that she was in the

bathroom doing her hair when Lindberg grabbed her buttocks. M.T. apparently

witnessed the incident and it bothered him to the point that he afterward told A.T. he

wanted to “do something” to Lindberg with a baseball bat. However, A.T. persuaded him

not to take any action. M.T. testified that he spoke to his mother about this incident after

its occurrence.

¶6 After these incidents, A.T. told some of her close friends about Lindberg’s

conduct, but did not go to the authorities or tell any adults. A.T. told V.L., the teenage

male who had lived at the house and was a friend to both of the girls, about Lindberg’s

actions towards her. V.L. apparently urged her to tell her grandmother, but A.T. refused

to do so. V.L. did tell H.B. about Lindberg’s actions. Upon receiving this information,

H.B. then spoke directly to A.T. about the incidents and confirmed them directly with

her. H.B. then went to the police in Columbia Falls and told them about Lindberg’s

conduct only with respect to A.T. The next day, H.B. brought A.T. to the police station

to discuss these alleged sexual assaults against her.

¶7 The girls were first interviewed by Officer Brandy Arnoux (Officer Arnoux) of the

Columbia Falls Police Department on February 2, 2003. In the course of speaking to the

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girls, Officer Arnoux quickly realized that the grandparents’ home was outside the city

limits of Columbia Falls, and contacted the Flathead County Sheriff’s Office concerning

the report. Deputy Bill Emerson (Deputy Emerson) of the Flathead County Sheriff’s

Office was soon dispatched to assist Officer Arnoux. Detective Lance Norman

(Detective Norman) and Detective Jeanne Landis (Detective Landis) also of the Flathead

County Sheriff’s Office assisted in the investigation as well. Once Deputy Emerson

arrived, the girls were given written statement forms to fill out.

¶8 In the course of their interview, Officer Arnoux and Deputy Emerson determined

there was sufficient information to forward the allegations of sexual conduct against

Lindberg to detectives for further investigation. Near the end of the interview with the

girls, the officers realized that Lindberg may have committed a sexual crime against H.B.

as well. When questioned, H.B. was at first reluctant to talk about the incidents,

preferring to focus instead on the abuse against A.T. However, H.B. did eventually speak

about the sexual conduct against her. At the end of the interview, Deputy Emerson asked

the girls if they had told anyone about the alleged conduct of Lindberg against them.

They both responded that they had not.

¶9 Detectives Norman and Landis conducted a further investigation of the

allegations, and interviewed the girls, their friends, including V.L. and M.T, and family

members, including Lindberg and R.B. Immediately after law enforcement officials’

interview of Lindberg, a restraining order was issued against him. Based on further

investigation, charges were filed against Lindberg on December 23, 2003. The charges

were later amended to include a misdemeanor sexual assault charge. The Amended

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Information alleged that Lindberg committed felony sexual assault between January 1,

1995, and December 31, 1999, and between January 1, 2002, and December 31, 2002,

when he knowingly subjected A.T. to sexual contact without her consent. The second

count alleged that Lindberg committed the offense of felony sexual assault between

January 1, 1995, and December 31, 1999, when he knowingly subjected H.B. to sexual

contact without her consent. The felony sexual intercourse without consent charge

alleged that Lindberg committed this offense between January 1, 1995, and December 31,

1999, when he knowingly and without consent had sexual intercourse with H.B., who

was a minor at the time. Finally, the misdemeanor sexual assault charge alleged that

Lindberg committed this offense when he knowingly subjected H.B—who had then

reached the age of sixteen—to sexual contact without her consent. Lindberg requested a

jury trial which was later set for July 5, 2005.

¶10 Prior to trial, the State filed a motion in limine to exclude any evidence regarding

H.B.’s sexual orientation. In preparation for his defense, Lindberg’s counsel had

conducted an investigation of the events surrounding the allegations against him. These

investigations purportedly established that H.B. had been involved in a sexual

relationship with a female teenage friend named S.H. during the time of Lindberg’s

alleged criminal conduct. Lindberg claimed that he and other family members knew

about this relationship and had strenuously objected to H.B. about it. As part of the

theory of his defense, Lindberg intended to argue that his objection to this relationship

provided a motive for H.B. to fabricate the allegations against him in an attempt to have

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him removed from the home. Lindberg claimed that evidence about the nature of H.B’s

relationship with S.H was necessary for him to present his defense theory.

¶11 The District Court granted the State’s motion in limine, concluding that any

evidence of the sexual nature of H.B.’s relationship with another female was irrelevant to

the issues at trial, and prohibited under Montana’s rape shield law, § 45-5-511(2), MCA,

and the authority of State v. Johnson, 1998 MT 107, 288 Mont. 513, 958 P.2d 1182. In

explaining the reason for its decision, the District Court stated the following:

In the present case, the nature of the relationship the alleged victim had
with the other person is not relevant or material to the Defendant’s theories.
The defense can certainly offer evidence (not speculation or unsupported
allegations), if there is any, that the Defendant objected to this other
relationship and that the alleged victim wanted the Defendant removed
from the house because of his objections. If upon cross-examination of the
alleged victim, she denies the existence of this other relationship, or denies
knowing that the Defendant objected to the relationship, her credibility can
be attacked by any prior inconsistent statements, in accordance with Rule
613, M.R.Evid., and, of course, by the contrary testimony of other
witnesses. However, the sexual nature of the relationship is not relevant or
necessary to any of these issues or inquiries and evidence thereof is
prohibited under Section 45-5-511(2), MCA, and State v. Johnson, supra.

¶12 During the trial, Lindberg, H.B., A.T., their grandparents, M.T., V.L., R.B., and

the officers involved in the investigation presented testimony. H.B. testified on two

occasions. During her first testimony, H.B., then approximately twenty years of age,

struggled when recounting Lindberg’s alleged acts and repeatedly broke down in tears.

The District Court recessed for the day, and resumed the next morning with her

testimony. However, H.B. continued to have difficulty completing her testimony. The

District Court allowed her to be excused and received testimony from A.T. and B.B.

before again having H.B. return to the stand. At this point, the State began using leading

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questions to elicit testimony from her. Lindberg’s counsel objected twice throughout the

examination. On the first occasion, Lindberg’s counsel objected on the grounds that all

the questions used were leading questions. The District Court overruled the objection.

Later in H.B.’s testimony, Lindberg’s counsel again objected stating “Your honor, I

would object. Continuing leading—a lot of leading questions here.” The District Court

denied the objection stating: “This one’s not.” At the very end of her direct examination,

the State asked H.B. the following question: “At any time during the 1995 through 1998

incidents did the defendant penetrate your vagina?” H.B. responsed “Yes.” Lindberg’s

counsel did not object to this question.

¶13 After H.B. concluded her testimony, Lindberg’s trial counsel moved to strike it

completely on the grounds that i t had been developed through the use of leading

questions. The motion was denied. Lindberg’s counsel also moved for a mistrial on the

same grounds. However, when the District Court requested authority in support of

Lindberg’s motion, Lindberg’s trial counsel could not provide any. The District Court

denied the motion for a mistrial.

¶14 As part of the theory of his defense, Lindberg maintained that both H.B. and A.T.

despised him because he attempted to discipline them and impose structure on their lives

which was lacking in the home environment, and that they made up the abuse allegations

to have him removed from the home. Lindberg claims that life at the home was

“chaotic,” that little discipline or structure was imposed on the girls, and that the girls

resented him for attempting to discipline them. At trial, he denied ever sexually

assaulting or abusing the girls.

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¶15 In closing arguments, the prosecutor made several comments which Lindberg now

maintains were improper and denied him his rights to due process and a fair trial. For

instance, at one point the prosecutor commented upon Lindberg’s argument that the

charges against him were part of a “huge conspiracy theory” between H.B., A.T., and

their friends. The prosecution denied that such a scheme or conspiracy was planned by

the girls. In making this argument, the prosecution contrasted the testimony of the girls

and their friends with portions of Lindberg’s cross-examination by the State as follows:

I’d like you to contrast their testimony with that of the Defendant. He tells
you he doesn’t know why, other than possible discipline. He doesn’t think
they’re evil children, but yet everybody’s a liar. [A.T.’s] a liar, [H.B’s] a
liar, [M.T.’s] a liar, but he just doesn’t know why, and it’s a big conspiracy
against him. Does that make sense? I argue to you, ladies and gentlemen,
it does not.

¶16 The prosecutor then went on to unfavorably reference certain portions of R.B.’s

testimony to the effect that H.B. was somehow partly to blame or responsible for the

allegations against Lindberg.

Contrast that also with [R.B.’s] testimony. Do we really know what
[R.B.] knows or doesn’t know? She has a lack of memory, she tells us,
because of her alcohol, and you heard how much alcohol she was
consuming at the time of all this happening. She lied to you, ladies and
gentlemen, in this courtroom when she took that stand. She told you
one bold-face lie. Mr. Guzynski [part of the prosecution team] asked
her—I counted I think maybe three or four, maybe five times, “Last
week—” and we’re not talking in 2002, and we’re not talking in the ’95—
’99 time period, we’re talking last week “— last week did you have a
conversation with [H.B], and in that conversation did you tell her that the
thing you remember about when these incidents were going on, that ‘you
hung on the Defendant, you were too close to him’ and blamed him—or
blamed her for what happened?” She told you on that stand “Nope, I
didn’t say that.” Mr. Guzynski asked her, “You sure you don’t want to
take a moment to think about that? Sure you don’t want to change what
your answer was?” And she told you as plain as day, “No.”

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 You heard Detective Landis—Detective Landis has no motive to lie
in this case—she heard it. She monitored that conversation last week, and
that is in fact the statement that was made. And that also corroborates
what [H.B] told you in her testimony, that [H.B] had a conversation way
back when with [R.B], and [R.B] told her that she was to blame, that it was
her fault. So I would ask you to contrast her demeanor also on the stand.
Some of you may be thinking “Well, why would she still perpetuate this lie
if possibly she’s not still with the Defendant?” Did you see her demeanor
when she came? I argue to you when she took the stand she immediately
looked over and smiled at the Defendant. And when Mr. Guzynski asked
her the point blank question “Are you still in love with the Defendant,”
there was a huge hesitation before she finally looked at you and kind of
said “No.” I argue to you, ladies and gentlemen, she still has feelings for
the Defendant, and that is why to this day she is still choosing the
Defendant over her children. And by her own admission, that is what she
did before, and I argue to you that is what she’s still doing today.

(Emphasis added.)

¶17 In rebuttal arguments, the prosecution again reiterated its view of R.B.’s

credibility, and again stated that she lied in court. During closing argument, the

prosecution also implied that the presentation of H.B’s testimony was conditioned by the

limits placed on that testimony by the rules of evidence: “the fact that she has no support

from her mother, and the fact that when I’m in the courtroom I can’t ask the kind of

questions that make [H.B.] feel more comfortable in order to speak, that’s why you got

the reaction from [H.B] when we were in here.” Additionally, the prosecution

commented generally upon the credibility of the evidence presented by the State as

follows:

The Defendant told you in his opening statement that the State was gonna
muddy the water, we were gonna be the ones throwing mud, and we were
gonna be the one giving you inconsistencies, innuendos. And I argue to
you, ladies and gentlemen, the State was not the one that did that. The
State was here, and the State was here in a search for the truth. The

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 State put on witnesses for you in that search for the truth, and the
State put on witnesses and, I would argue to you, that were very
genuine and very truthful to you.

(Emphasis added.)

¶18 The prosecutor also stated that the testimony of A.T. had been corroborated by

Detective Landis’ interview of A.T.’s friends, and commented upon Lindberg’s failure to

call any of the girls’ friends in support of his defense.

The defense didn’t dispute it. They didn’t bring any of these people in to
say anything different. And you heard they had access to all of their
interviews and, not only that, they had access to interview these people
themselves.

¶19 Along the same lines, the prosecutor commented upon Lindberg’s failure to call

S.H., the teenage girl with whom H.B. allegedly had a sexual relationship and whose

testimony was the focus of the pre-trial motion in limine, as follows:

You didn’t hear from some witnesses, you didn’t hear from S.H., some of
the girls that disclosed. Jeanne Landis testified that those people were
interviewed. She also testified that she was aware that Mr. Hawk [defense
counsel’s investigator] interviewed those people and had all those
transcripts. If there was something there, Your Honor—excuse me, ladies
and gentlemen, the defense could have called those witnesses. He’s just
trying to create confusion. Why didn’t they call those witnesses? There’s
nothing there.

¶20 Lindberg’s trial counsel did not object to any of these comments. The jury

deliberated four hours before returning a verdict of guilty on all four counts. Lindberg

was subsequently given forty-year concurrent sentences on each of the felony counts.

¶21 Lindberg now appeals his conviction. He raises the following issues on

appeal:

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¶22 Issue One: Did the prosecution improperly comment upon the credibility of the

witnesses and assert that Lindberg was responsible for establishing his innocence,

thereby denying Lindberg his right to due process and a fair and impartial trial?

¶23 Issue Two: Did Lindberg’s trial counsel provide ineffective assistance of counsel

by failing to adequately object to the use of leading questions during the prosecution’s

direct examination of H.B. and by failing to object to the prosecution’s improper

comments during closing arguments?

¶24 Issue Three: Did the District Court abuse its discretion and deny Lindberg his

constitutional right to confront the witnesses against him and present his defense when it

prohibited him from questioning H.B. about the alleged sexual nature of her relationship

with S.H.?

STANDARD OF REVIEW

¶25 “If a prosecutor’s improper comments prejudice a defendant’s right to a fair trial,

then the proper remedy is reversal.” State v. Sanchez, 2008 MT 27, ¶ 51, 341 Mont. 240,

¶ 51, 177 P.3d 444, ¶ 51 (citing State v. Stringer, 271 Mont. 367, 381, 897 P.2d 1063,

1072 (1995)). We use a two-step analysis to determine whether improper comments have

prejudiced a defendant’s right to a fair trial. First, we determine whether the prosecutor

made improper comments. Second, we determine whether those comments prejudiced

the defendant’s right to a fair trial. Sanchez, ¶ 51 (citing State v. Gladue, 1999 MT 1,

¶ 12, 293 Mont. 1, ¶ 12, 972 P.2d 827, ¶ 12). Moreover, “[t]he burden is on the

defendant to demonstrate that a ‘prosecutor’s improper comments prejudiced his or her

right to a fair and impartial trial. In determining whether prejudice resulted, the improper

12
comments must be viewed in the context of the case in its entirety.’ ” State v. Wing, 2008

MT 218, ¶ 33, 344 Mont. 243, ¶ 33, 188 P.3d 999, ¶ 33 (quoting Gladue, ¶ 27).

¶26 Ineffective assistance of counsel claims constitute mixed questions of law and fact

which we review de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, ¶ 9, 183

P.3d 861, ¶ 9. To prevail on an ineffective assistance of counsel claim, the defendant

must show that: (1) his counsel’s performance was deficient, and (2) that counsel’s

deficient performance prejudiced him. Whitlow, ¶ 10. The defendant must satisfy both

prongs of the test, and where the defendant makes an insufficient showing as to one

prong of the test, it is unnecessary to address the other prong. Whitlow, ¶ 11.

¶27 We review a district court’s evidentiary rulings for an abuse of discretion and we

afford district courts “broad discretion . . . to limit the scope of cross-examination to

those issues it determines are relevant to trial.” State v. Beavers, 1999 MT 260, ¶ 20, 296

Mont. 340, ¶ 20, 987 P.2d 371, ¶ 20.

¶28 Issue One: Did the prosecution improperly comment upon the credibility of the
witnesses and assert that Lindberg was responsible for establishing his innocence,
thereby denying Lindberg his right to due process and a fair and impartial trial?

¶29 Lindberg asserts that the prosecution made improper comments during closing

arguments. He argues the emphasized comments cited above (see ¶¶ 16 and 17)

constitute an improper characterization of R.B. as a “liar” as well as an improper offer of

a personal opinion as to the credibility of the evidence by the prosecution. Lindberg

argues that in State v. Stringer, 271 Mont. 367, 897 P.2d 1063 (1995) and State v.

Musgrove, 178 Mont. 162, 582 P.2d 1246 (1978) we held that it is improper for a

prosecutor to characterize either the accused or witnesses as liars, or to offer personal

13
opinions as to the credibility of a witness. Lindberg also cites to State v. Stewart, 2000

MT 379, 303 Mont. 507, 16 P.3d 391 for the proposition that “[i]t is well settled Montana

law that closing arguments that reflect the prosecutor’s personal opinions as to guilt are

improper.” Stewart, ¶ 42 (citing Gladue, ¶ 21). He maintains that the prosecution’s

violation of this tenet of law in this case constitutes reversible error.

¶30 Lindberg also argues that the prosecution’s improper comments during closing

arguments unconstitutionally shifted the burden of proof to him. In particular, Lindberg

argues that the prosecution’s reference to Lindberg’s failure to call witnesses to refute

H.B.’s and A.T.’s testimony and his failure to call S.H (see ¶¶ 18-19), implied to the jury

that it was his burden to call witnesses to establish his innocence, when the State alone

has the burden of proving his guilt beyond a reasonable doubt. Lindberg maintains that

the improper comments, and the insinuation that it was Lindberg’s responsibility to bring

evidence to prove his innocence, prejudiced him and violated his right to a fair trial.

Consequently, Lindberg seeks a new trial based on the alleged prosecutorial misconduct.

¶31 Recognizing that his trial counsel failed to object to any of these comments at trial,

Lindberg maintains that the violations of his rights to due process and a fair trial are

reviewable under the common law plain error doctrine as set forth in State v. Finley, 276

Mont. 126, 915 P.2d 208 (1996), overruled on other grounds by State v. Gallagher, 2001

MT 39, 304 Mont. 215, 19 P.3d 817. Lindberg cites to In re Winship, 397 U.S. 358, 90

S. Ct. 1068 (1970) and maintains that these comments affected his constitutional right to

have the State prove each element of the charged offenses against him beyond a

reasonable doubt. He also asserts, citing to State v. Newman, 2005 MT 348, 330 Mont.

14
160, 127 P.3d 374, that his right to a fair trial under the Fourteenth Amendment has been

violated as well. In support of his argument, Lindberg relies primarily upon Newman and

State v. Sullivan, 280 Mont. 25, 927 P.2d 1033 (1996).

¶32 In response, the State advances two lines of argument. First, the State argues that

that Lindberg’s failure to object to the comments is fatal to his appeal and that his claims

should not be reviewed under the common law plain error doctrine. Second, the State

argues that even if this Court decides to reach the merits of Lindberg’s arguments on

appeal, they should be rejected because the comments by the prosecutor show no conduct

which would warrant a new trial.

¶33 The State asserts that under this Court’s post-Finley jurisprudence, we have

consistently declined to invoke plain error to review a prosecutor’s comments made

during closing arguments, where the alleged comments did not implicate a defendant’s

right to remain silent under the Fifth Amendment to the United States Constitution and

Article II, § 25 of the Montana Constitution. The State cites to several cases in support of

its position, including State v. Ogle, 255 Mont. 246, 841 P.2d 1133 (1992), State v. Smith,

232 Mont. 156, 755 P.2d 569 (1988), and State v. Daniels, 2003 MT 247, 317 Mont. 331,

77 P.3d 224. In this regard, the State argues that Sullivan is distinguishable because there

the Court only invoked plain error to review a prosecutor’s improper comments which

specifically focused on a defendant’s post-Miranda silence. Sullivan, 280 Mont. at

36-37, 927 P.2d at 1040. Here, by contrast, the prosecutor commented upon Lindberg’s

failure to present evidence to corroborate his defense theory, and categorized R.B. as a

“liar” while arguing the State’s evidence was genuine and truthful, but did not comment

15
at all on whether Lindberg invoked his Miranda rights, or whether he remained silent

after doing so.

¶34 While we do not condone the prosecutor’s comments, we agree with the State, and

decline to invoke plain error review of Lindberg’s claims. As we stated in Daniels, “[t]he

plain error doctrine is to be employed sparingly, on a case-by-case basis, pursuant to the

narrow circumstances articulated in Finley. In order to determine the applicability of the

plain error doctrine, we consider the totality of circumstances of each case.” Daniels,

¶ 20 (citations omitted). Certainly, an argument can be made in this case that the

prosecutor’s comments were improper. In fact, Lindberg correctly notes that we have

routinely chastised prosecutors for making improper comments on the credibility of the

evidence before a jury, and in particular categorizing witnesses as “liars.” As we stated

in State v. Arlington, 265 Mont. 127, 158, 875 P.2d 307, 325 (1994), “[a]ny trial counsel

who invades the province of the jury by characterizing a party or a witness as a liar or his

testimony as lies, is treading on thin ice, indeed.” We repeat this admonition to the

prosecution in this case. Such comments are unnecessary, unprofessional and run the risk

of undermining the fundamental fairness of the judicial process. The members of a jury

are competent and capable of making their own credibility determinations, and needless

intrusions into the province of the jury have no place in the jury trial system.

¶35 However, given the totality of the circumstances in this case, the prosecutor’s

comments do not rise to a level sufficient to invoke the plain error doctrine. The

prosecution here did not comment upon a defendant’s post-Miranda silence, but instead

offered personal opinions as to the credibility of the witnesses and the significance of

16
Lindberg’s failure to present evidence. Such comments did not have the effect of

unconstitutionally shifting the burden of proof to Lindberg. Having reviewed the trial

transcripts in their entirety and having considered all the evidence presented against

Lindberg, we cannot say that failure to review Lindberg’s claims will result in a manifest

miscarriage of justice, leave unsettled the fundamental fairness of Lindberg’s trial, or

compromise the integrity of the judicial process. See Finley, 276 Mont. at 137, 915 P.2d

at 215. Thus, we decline to review Lindberg’s claims under the plain error doctrine.

¶36 Issue Two: Did Lindberg’s trial counsel provide ineffective assistance of counsel
by failing to adequately object to the use of leading questions during the
prosecution’s direct examination of H.B. and by failing to object to the
prosecution’s improper comments during closing arguments?

¶37 Lindberg maintains that his trial counsel failed to provide effective assistance of

counsel in two respects. First, he failed to object to the use of leading questions during

H.B.’s testimony. Second, he failed to object to the prosecutor’s improper comments

during closing arguments.

¶38 With regard to his first argument, Lindberg points out that during the State’s

repeated attempt at a direct examination of H.B., the prosecution relied heavily upon the

use of leading questions, but that his trial counsel objected to those questions on only two

occasions. Lindberg asserts that the only evidence that he penetrated H.B. came in

response to a leading question from the prosecution to which his trial counsel did not

object. (See ¶ 12). Without this leading question and H.B.’s response, Lindberg argues

he would have been entitled to a directed verdict on the sexual intercourse without

consent charge because penetration is a necessary element of that offense, and, aside

17
from H.B.’s answer to the leading question, no other evidence was provided. Lindberg

also notes that the jury seemingly recognized the State’s difficulty in proving the

elements of sexual intercourse without consent. During its deliberations, the jury sent a

question to the court asking “Did [H.B.] actually speak the word ‘penetration’ or was it

posed as a yes or no question?” Additionally, the jury asked if it would be possible to

have a transcript of H.B.’s testimony. However, the District Court declined to provide an

answer or a transcript, requiring the jury to rely on its own memory and notes.

¶39 As regards Lindberg’s second argument for ineffective assistance of counsel, he

maintains that counsel’s failure to object to the prosecution’s closing arguments was both

deficient and prejudiced his right to a fair trial by allowing the State to improperly shift

the burden of proof to him, instead of forcing the State to prove its case beyond a

reasonable doubt. Lindberg argues that his claims are record-based and may be reviewed

on direct appeal.

¶40 In State v. White, 2001 MT 149, 306 Mont. 58, 30 P.3d 340, we discussed the

distinction between record-based claims, which as a procedural matter are reviewable on

direct appeal, and non-record-based claims which are reviewable only in a petition for

post-conviction relief. White, ¶ 12 (citing Hagen v. State, 1999 MT 8, ¶ 12, 293 Mont.

60, ¶ 12, 973 P.2d 233, ¶ 12). As we noted in White, an alleged failure to object to the

introduction of evidence, the testimony of a witness, or prosecutorial misconduct, are

generally considered record-based. White, ¶ 15. However, we also noted “that decisions

regarding the timing and number of objections lie within counsel’s tactical discretion,

which would indicate that non-record based information explaining the tactic may be

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involved, and thus should be barred from review on direct appeal.” White, ¶ 16. We

went on to explain the distinction between these two types of claims as follows:

Though not easily distilled into a formula, the definitive question
that distinguishes and decides which actions are record and which are non-
record, is why? In other words, if counsel fails to object to the admission
of evidence, or fails to offer an opening statement, does the record fully
explain why counsel took the particular course of action? If not, then the
matter is best-suited for post-conviction proceedings which permit a
further inquiry into whether the particular representation was ineffective.
Only when the record will fully explain why counsel took, or failed to
take, action in providing a defense for the accused may this Court review
the matter on direct appeal.

White, ¶ 20.

¶41 Under the authority of White, we agree with Lindberg that his claims for

ineffective assistance of counsel are record-based, and may be pursued on direct appeal.

As noted by the State, Lindberg’s counsel did object on two occasions to the use of

leading questions during H.B.’s testimony and was overruled. While the State suggests

that counsel may have made a tactical decision to refrain from objecting further at the

risk of alienating the jurors in light of H.B.’s fragile state at the time of her questioning,

this suggestion is belied by the trial counsel’s motion to strike, which is reflected in the

record as follows:

I have a motion to strike altogether the testimony of [H.B.] The State has
exhibited throughout this—or has never exhibited that [H.B.] was
incompetent to testify—to properly testify on direct. She didn’t testify
properly on direct. They were, for the most part, leading questions. The
State led entirely through that. Therefore, it’s improper direct
examination, and we believe all of her testimony should be stricken.

¶42 The motion to strike reflects counsel’s belief at the time that the State’s direct

examination was developed through leading questions and was improper and prejudicial

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to his client. Moreover, when his motion to strike was denied, Lindberg’s counsel then

moved for a mistrial on the same grounds. The District Court denied both motions. The

significance of these motions for purposes of the ineffective assistance of counsel

analysis is clear: the decision not to object was not tactical, nor could counsel

legitimately argue later that it was. Therefore, there is no reason to relegate this analysis

to post-conviction proceedings.

¶43 Solely on the record, therefore, we can evaluate whether trial counsel’s

performance was deficient and whether “counsel’s conduct fell below an objective

standard of reasonableness measured under prevailing professional norms and in light of

the surrounding circumstances.” Whitlow, ¶ 20. In explaining his motion to strike, trial

counsel made it clear that he failed to lodge appropriate objections to the use of leading

questions by the State, and failed to bring to the District Court’s attention that such a

manner of direct examination was improper unless the State first demonstrated H.B. was

incompetent to testify. Thus, by trial counsel’s own standards, his performance was at

least somewhat deficient.

¶44 As noted above, however, we review ineffective assistance of counsel claims

under a standard of objective, as opposed to subjective, reasonableness. Whitlow, ¶ 20.

A review of the trial transcripts demonstrates that the prosecutor did indeed employ some

leading questions in his examination of H.B. Lindberg’s ineffective assistance of counsel

claim as to the leading question matter centers solely, however, on the notion that the

specific question “At any time during the 1995 through 1998 incidents did the defendant

penetrate your vagina?” is a leading question, and that his counsel’s performance was

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deficient in failing to object to it. We are unconvinced that, from an objective standpoint,

this is in fact a leading question which would have been disallowed by the District Court

upon proper objection.

¶45 Section 26-1-101(3), MCA, defines a “leading question” as “a question which

suggests to the witness the answer which the examining party desires.” M. R. Evid. 611

provides: “Leading questions should not be used on direct examination of a witness

except as may be necessary to develop the witness’ testimony.” In State v. Eiler, 234

Mont. 38, 45, 762 P.2d 210, 215 (1988), relying on our opinion in Bailey v. Bailey , 184

Mont. 418, 421, 603 P.2d 259, 261 (1979)—both of which cases concerned the direct

examination of a victim—we said that whether or not leading questions will be allowed is

a matter within the trial court’s discretion.

¶46 In People v. Williams, 941 P.2d 752 (Cal. 1997), the California Supreme Court

stated that “[a] question calling for a ‘yes’ or ‘no’ answer is a leading question only if,

under the circumstances, it is obvious that the examiner is suggesting that the witness

answer the question one way only, whether it be ‘yes’ or ‘no.’ ” Williams, 941 P.2d at

774 (quotations omitted). The fact that the specific question to which Lindberg now

objects on appeal is one which could be answered with a “yes” or “no” does not, ipso

facto, make the question a leading question. In order to establish deficient performance

and prejudice, Lindberg must show that the prosecution instructed or suggested to H.B.

how the question should be answered, and further that, had the objection been timely

made, the District Court would have concluded that the question was leading and would

be disallowed. Lindberg has failed to establish either matter. Because the question was

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arguably not leading and because the allowance of leading questions is in any event a

matter within the trial court’s discretion, we cannot say from a standpoint of objective

reasonableness that counsel’s performance in failing to object to this question was

deficient, or that Lindberg was prejudiced by counsel’s failure to object. Therefore, we

conclude that Lindberg has failed to satisfy the requirements of the ineffective assistance

of counsel test. Whitlow, ¶ 10. Lindberg’s ineffective assistance of counsel claim for

failure to object to this question is accordingly denied.

¶47 With respect to Lindberg’s claim for ineffective assistance of counsel based on

trial counsel’s failure to object to the prosecutor’s closing arguments, we conclude that

this claim is record-based as well, and may be reviewed on direct appeal. We agree that

failure to object to these comments fell below an objective standard of reasonableness

under prevailing professional norms in light of the circumstances of this case. We simply

cannot conceive of any rationale under which defense counsel would sit on his hands and

fail to object to such comments.

¶48 At the same time, we agree with the State that Lindberg was not prejudiced by this

deficient performance to an extent that reversal of his convictions is warranted. The

second prong of an ineffective assistance of counsel claim requires this Court to

determine whether the defendant was prejudiced by counsel’s deficient performance. In

order for a defendant to show that he was prejudiced, he must show that “ ‘there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

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sufficient to undermine confidence in the outcome.’ ” Wing, ¶ 43 (quoting Strickland v.

Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).

¶49 Lindberg claims that the failure to object to the prosecutor’s comments allowed

the prosecutor to effectively shift the burden of proof to him. We disagree. As noted

above, while certain of the prosecution’s comments were improper, the comments must

be viewed in their entirety and Lindberg has the burden of showing prejudice. Wing,

¶ 33. However, he has failed to specifically identify how these comments shifted the

burden of proof to him.

¶50 Accordingly, Lindberg’s claims for ineffective assistance of counsel for trial

counsel’s failure to object during closing arguments and failure to object to the use of

leading questions by the prosecution during H.B.’s testimony are denied.

¶51 Issue Three: Did the District Court abuse its discretion and deny Lindberg his
constitutional right to confront the witnesses against him and present his defense
when it prohibited him from questioning H.B. about the alleged sexual nature of
her relationship with S.H.?

¶52 Prior to trial, the District Court granted a motion in limine filed by the State to

exclude any evidence or testimony regarding H.B.’s sexual orientation or sexual history.

It had come to the State’s attention that Lindberg might elicit testimony concerning an

alleged sexual relationship between H.B. and a female friend, S.H. The State sought to

exclude such testimony under Montana’s rape shield law, § 45-5-511(2), MCA, and

Johnson. Lindberg objected and argued that such evidence was an important aspect of

his defense theory. Specifically, he claimed that it was his strenuous objection to H.B.’s

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sexual relationship with this female friend that provided H.B. a motive to fabricate the

allegations of abuse in order to have him removed from the home.

¶53 In its order granting the State’s motion, the District Court correctly noted that its

role in resolving the issue was to strike the proper balance between Lindberg’s right to

present a defense, and H.B.’s rights under the rape shield law. The District Court relied

upon Johnson in support of this position. See ¶ 11.

¶54 Lindberg maintains that the District Court abused its discretion in this ruling,

claiming that an understanding of the nature of H.B.’s relationship with S.H. was crucial

to his defense so that the jury could fully understand the tension between him and H.B.

and why H.B. would have been so outraged by Lindberg forbidding this relationship.

Lindberg maintains that Montana’s rape shield law was improperly applied to deny him

his right to confrontation.

¶55 The State argues that the District Court did not abuse its discretion and that its

reasoning was in accord with Johnson and State v. Ahto, 1998 MT 200, 290 Mont. 338,

965 P.2d 240. Moreover, the State maintains that the District Court’s ruling allowed

Lindberg to develop his theory that H.B. wanted him removed from the home due to his

objection to her relationship with S.H, but correctly determined that the nature of that

relationship was not relevant or necessary for the presentation of his defense theory in

light of H.B.’s rights under the rape shield law.

¶56 We agree with the State and conclude that the District Court did not abuse its

discretion. “Montana’s rape shield law, § 45-5-511(2), MCA, provides that, with certain

limitations, no evidence concerning the sexual conduct of the victim is admissible in a

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case involving a sexual crime. This Court has held that the State has a compelling

interest in preventing rape trials from becoming a trial on the victim’s prior sexual

conduct and thus has repeatedly upheld the rape shield law against Sixth Amendment

attacks.” Ahto, ¶ 16. As we stated in Johnson, “[t]he constitution does not require a

blanket exception to rape shield statutes for all evidence related to motive to fabricate.

Speculative or unsupported allegations are insufficient to tip the scales in favor of a

defendant’s right to present a defense and against the victim’s rights under the rape shield

statute.” Johnson, ¶ 24. In this case, the District Court struck an appropriate balance

between Lindberg’s right to confront witnesses and develop his theory of the case, and

H.B.’s rights under the rape shield law. The District Court provided Lindberg an

opportunity to expose H.B.’s alleged motivation to fabricate the charges based on his

disapproval of H.B.’s relationship with S.H., but also correctly reasoned that evidence of

the sexual nature of that relationship was irrelevant, especially in light of the rape shield

law. Accordingly, we conclude the District Court did not abuse its discretion in

precluding Lindberg from questioning H.B. about her alleged sexual relationship with

S.H.

¶57 Affirmed.

/S/ PATRICIA COTTER

We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ JIM RICE

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