State v. Giddings

March 3 2009

DA 07-0333

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 61

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JOSHUA DAVID GIDDINGS,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDC 2005-260
Honorable Thomas C. Honzel, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Joslyn M. Hunt, Assistant Appellate
Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Tammy Plubell, Assistant
Attorney General, Helena, Montana

Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana

Submitted on Briefs: December 3, 2008

Decided: March 3, 2009

Filed:

__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 Joshua David Giddings (Giddings) appeals his convictions in the First Judicial

District, Lewis and Clark County, for deliberate homicide, felony tampering with or

fabricating physical evidence, and felony criminal possession of dangerous drugs. We

affirm.

¶2 We review the following issues on appeal:

¶3 Did the District Court properly deny Giddings’s motion to dismiss based on the

State’s alleged intentional destruction of exculpatory evidence?

¶4 Did the District Court properly deny Giddings’s motion to dismiss based on the

State’s alleged failure to provide discovery?

¶5 Did the District Court abuse its discretion when it allowed the State to add two

witnesses in the month preceding the trial?

¶6 Did the District Court abuse its discretion when it denied Giddings’s motion for a

mistrial based on the State’s alleged violation of the District Court’s order in limine?

¶7 Did the District Court abuse its discretion when it limited Giddings’s cross-

examination of Richard Alan King?

¶8 Did the District Court prejudice Giddings by allowing a videotape of a police

interview with Giddings into the jury room during deliberations?

¶9 Does the doctrine of cumulative error warrant reversal of Giddings’s conviction?

¶10 Did the District Court illegally sentence Giddings to life without the possibility of

parole?

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 FACTUAL AND PROCEDURAL BACKGROUND

Prelude to the Murder

¶11 Randy Vook (Randy) found his daughter, Amy Rolfe (Amy), dead under a pile of

laundry when he arrived at home from work on Friday, July 22, 2005. Amy lived in her

parent’s home with her boyfriend, Mike Mix (Mix), and her three young sons. Investigators

reconstructed the events during the week leading up to Amy’s murder. Giddings spent the

week under the influence of methamphetamine. He sought to sustain his methamphetamine

binge by obtaining more money and more drugs.

¶12 The week of Amy’s murder, Ryan Frankforter (Frankforter) gave Giddings $350.

Frankforter expected seven grams of methamphetamine in return. Giddings delivered half of

the methamphetamine. Frankforter loaned Giddings clothing, including the same white Ecko

t-shirt that officers later found under Amy’s dead body. Giddings still had not delivered the

remaining methamphetamine by the evening before Amy’s murder. Frankforter found

Giddings gambling. Frankforter was angry, but Giddings assured him that many people

around town owed him money.

¶13 Giddings and Frankforter went to Codie Whitehouse’s (Whitehouse) apartment where

Richard Alan King was staying. Giddings was “a basket case.” He was under the influence

of drugs. Giddings asked King if he wanted to give them money for methamphetamine.

King said he already had given all his money to Mix. Mix had just left. King informed

Giddings that Mix was going on a drug run and would be back the next day. Giddings and

Frankforter left. King fell asleep on Whitehouse’s couch.

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¶14 Giddings next tracked down Levi Gadaire (Gadaire). Gadaire owed Giddings money.

Giddings thought that Gadaire had methamphetamine. Giddings was willing to take the

drugs in lieu of money. Gadaire claimed to have neither. Giddings and Frankforter also

went to Erika Saunders’s (Saunders) apartment. Giddings had stayed at Saunders’s

apartment during the week leading up to Amy’s murder. Saunders overheard Giddings and

Frankforter discussing a drug deal.

¶15 Frankforter followed Giddings around until the early morning hours. They returned to

Frankforter’s house at around 5:00 a.m. on the morning of Amy’s murder. Frankforter

remarked that his wallet was missing. Giddings said he thought that it was on the dash of

Frankforter’s car. Frankforter gave Giddings his car keys to get the wallet. Giddings never

returned. Frankforter’s dad woke him up at about 8:00 a.m. because Frankforter’s car was

blocking his truck. Frankforter could not find his car keys or wallet.

¶16 On the day that Amy died, Candice Vook (Candice), Amy’s mom, woke Amy so that

Amy could attend an 8:30 a.m. work meeting. Mix had left to go to his job as a foreman for

a roofing company. Candice answered a phone call from Giddings before Amy left for the

meeting. Giddings asked to speak to Amy. Amy was standing beside Candice in the

kitchen, but Candice told Giddings that Amy was not there and instructed him not to call

again. Amy attended her work meeting and called her mom at about 10 a.m. to tell her that

she was running errands.

¶17 Chris Rolfe (Rolfe), Amy’s ex-husband and the father of her three sons, stopped by

the Vook’s residence to arrange a visit with his sons. Amy and Rolfe had an amicable

relationship. Candice left home at around 1:30 p.m. Amy dropped the boys at Rolfe’s home.
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Amy told Rolfe that she was going to pay the day care bill. She never made it to the day

care provider to pay the bill.

¶18 Giddings arrived at Mary MacDonald’s apartment between 1:30 p.m. and 2:00 p.m.

looking for her brother Joe MacDonald (MacDonald). Giddings appeared to be under the

influence of drugs. He was wearing a white Ecko t-shirt.

¶19 Mix and his work partner, Todd Anderson (Anderson), were leaving a gas station at

about 3:00 p.m. when Anderson’s van died. Mix called Amy. She agreed to give them a

ride, but she never showed up. Mix called her repeatedly without success. Mix and

Anderson eventually got the van started and went to their next job. Giddings called

MacDonald at about this time from Amy’s cell phone. MacDonald did not know Amy.

Giddings seemed agitated, out of breath, and wanted a ride. MacDonald refused.

The Immediate Aftermath

¶20 Randy arrived home at about 5:10 p.m. and saw Amy’s car. He discovered Amy’s

body and called 911. Officer Hagen of the Helena Police Department arrived at the Vook’s

residence at about 5:30 p.m. Amy’s pants were down below her waist. Blood was on her

face and shirt. Paramedics arrived and confirmed that Amy was dead. The contents of

Amy’s and her children’s bedrooms were scattered on the floors of those rooms. The police

found Amy’s body partially stuffed in a sleeping bag. A comforter beneath Amy smelled of

urine. Red staining and fecal material covered the comforter. A white Ecko t-shirt lay

underneath the comforter. The t-shirt was soaking wet and did not smell of urine.

¶21 John Foster (Foster) picked up his girlfriend, Jennifer Casman (Casman), from work

at about 5:30 p.m. Casman dropped Foster at home and went to her mother’s house to pick
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up her children. Someone knocked on the back door while Foster waited for Casman to

return. Foster opened the door to find Giddings standing on the porch. Giddings was wet

and he wore no socks or shoes. Giddings was nervous, jittery, and “high.”

¶22 Foster allowed Giddings to enter the house. Giddings told Foster that “Mike Mix just

killed his girlfriend.” Giddings was “panicky.” He told Foster that he could not see how

someone could be “thrashed around and beaten like that.” Giddings described a strong odor

of feces. Giddings claimed that he had seen blood vessels “popped out on Amy’s lips” when

Mix killed Amy. Giddings told Foster that Amy was under some “towels and things” in the

laundry room. Giddings called Donald Duff (Duff) at 5:50 p.m. to ask for a ride. Duff’s

girlfriend did not like Giddings, so Duff declined.

¶23 Foster called Casman at 5:56 p.m. and told her to hurry home because he “wanted to

get [Giddings] out of there.” Foster told Casman to have the kids immediately go to their

rooms when they arrived. Foster loaned Giddings a shirt and a pair of shorts. Giddings took

off his clothes, including his Sponge Bob boxers, in the kitchen. Giddings was in a hurry.

He cried off and on. Giddings asked for a plastic bag. He said he had some things to put in

the plastic bag. Giddings went outside and then returned looking for the Sponge Bob boxers.

¶24 After Casman arrived, Giddings placed a full plastic bag and some cardboard boxes in

the trunk of Casman’s and Foster’s car. The group departed for Duff’s trailer with Casman

driving. Giddings sat in the backseat. He rocked back and forth and cried intermittently.

Casman and Foster noticed a gas or turpentine smell coming from the trunk of the car.

¶25 Casman drove Giddings to Duff’s trailer. When they arrived, Foster quickly got out

of the car and opened the trunk. Giddings asked Foster for a ride to the mountains so that he
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could burn the contents of the trunk. Foster refused. Giddings began unloading the trunk.

He tried to hand Foster a carpenter’s level. Foster refused to touch the level because he

“sensed something was bad.” Giddings tearfully gave Foster a hug and asked him not to tell

anyone about any of “it” until it came out on the news.

¶26 Giddings walked towards Duff’s door. He carried the plastic bag, the box, and the

level. Duff told Giddings “you’re not bringing that in here.” Giddings wore cutoffs and a t-

shirt. He wore no shoes or socks and was “highly agitated.”

¶27 Duff asked Giddings “what’s going on?” Giddings responded “It isn’t good. It isn’t

good.” Giddings put his head down and cried. Giddings provided Duff with the following

account. Mix had called Giddings to ask for help. Giddings claimed that when he arrived at

the Vook’s house Mix was unable to talk. Giddings heard gurgling from under the sheets.

He pulled the sheets back and saw Amy lying on her back with blood all over her face and

mouth. Giddings got scared and grabbed a rag and cleaner and sprayed down everything that

he had touched. He fled.

¶28 Casman and Foster drove from Duff’s trailer to the police station to report what had

happened. They arrived at the police department at 6:35 p.m. Detective Ekola searched their

car. He smelled a strong odor of a flammable material, such as gasoline. Several police

officers drove to Duff’s trailer.

The Arrest

¶29 Duff testified that Giddings “ran back and forth looking out the windows” of Duff’s

trailer. Giddings stated “There they are, there they are,” when the police officers arrived.

The officers knocked on Duff’s door. The officers yanked Duff out of the house when he
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opened the door. Duff heard the door close and lock. Duff gave the police permission to

break down the door and enter his trailer. The officers forced the door open and called to

Giddings. Giddings emerged wearing nothing but a towel. He looked as if he had just

gotten out of the shower. Officer Hagen handcuffed Giddings and sat him on a chair inside

the trailer.

¶30 Duff took the officers to his shed. The officers found a large plastic bag and a white t-

shirt wrapped around some other items sitting on top of a box. Detective Ekola placed into

evidence the plastic bag and its contents, a carpenter’s level, and some cardboard boxes that

the officers had removed from the shed. The items smelled of the same chemical odor as

that emanating from the trunk of Foster’s car.

¶31 The police arrested Giddings and transported him to the Law Enforcement Center.

Giddings told Deputy Mlekush that he hoped to be able to tell his side of the story. Giddings

claimed that he often helped his friends and it ended up getting him into trouble, similar to an

incident earlier that day. Giddings heard a loud angry voice while he was at the Law

Enforcement Center. He declared “That’s Mike.” Giddings became pale and tense. He

asked Deputy Mlekush “Could you?” Giddings paused and said “No, we’re not supposed to

talk about that.” Giddings then asked,” Could you – could you just tell me if she lived?”

Giddings began to shake and cry. He curled into a ball.

The Investigation

¶32 Lieutenant Jeseritz met with Mix and Anderson on the evening of Amy’s murder.

Mix was shaken and distraught. Lieutenant Jeseritz considered Mix a suspect at that point.

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Mix agreed to a formal interview. He cooperated fully. Detective Ekola later conclusively

verified Mix’s and Anderson’s locations on the afternoon of Amy’s murder.

¶33 Giddings and Mix grew up together, but at the time of Amy’s death Mix did not

consider Giddings a trusted friend. Mix admitted that he bought and sold methamphetamine.

Before he moved in with the Vooks, he had a safe where he stored his drugs and cash.

Giddings had watched Mix get drugs and money from the safe. Mix had obtained

methamphetamine for King in the days leading up to Amy’s murder. Mix had sold King

one-half a gram of methamphetamine on the evening of July 19, 2005. Giddings was with

King at the sale.

¶34 After Giddings’s arrest, Duff’s girlfriend found a planner belonging to Giddings at

Duff’s residence. Inside the planner were papers, Frankforter’s missing keys, and a syringe.

Law enforcement also recovered Frankforter’s empty wallet. Frankforter had $150 in the

wallet when he was with Giddings on the morning of Amy’s murder.

¶35 Dr. Gary Dale, the State Medical Examiner, conducted an autopsy of Amy. Dr. Dale

concluded that Amy had died of homicidal violence that included blunt force injuries to her

head and neck. Dr. Dale found fecal material smeared around Amy’s waist and thigh area

and in the crotch of her panties. Her upper trousers were damp, consistent with urine soiling.

Investigators had recovered from beneath Amy’s body a can of Pledge cleaning spray, with

the bottom damaged. Dr. Dale concluded that the base of the Pledge can was consistent with

the pattern of some of the injuries visible on Amy’s scalp. Dr. Dale determined that a

carpenter’s level, like the one recovered in Giddings’s possession, could have caused some

of Amy’s other neck and head injuries. Dr. Dale was unable to determine conclusively
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which injury had caused Amy’s death. He could not rule out asphyxia, based on the position

of Amy’s body and the fact that Amy had lost control of her bowels. Dr. Dale stated that

fear also could have caused Amy to lose control of her bowels.

¶36 Police found Amy’s purse and cell phone, clothing items, and a pair of black Adidas

tennis shoes in the plastic bag that police had recovered from Duff’s shed. Subsequent

testing revealed Amy’s blood on the bottom of the black tennis shoes. Forensics analysts

found a mixture of Amy’s and Giddings’s DNA inside the tennis shoes. Forensics analysts

also discovered Amy’s DNA on the Ecko t-shirt that police had found under Amy’s body.

Giddings’s DNA was on the collar of the Ecko t-shirt.

¶37 The plastic bag also contained a bottle of cleaner and a yellow plastic coffee cup with

a blue wash cloth tucked inside. These items came from the Vook’s residence. The coffee

cup appeared to contain feces. The carpenter’s level that police recovered from Duff’s shed

matched a level missing from the Vook’s kitchen. Crime lab fingerprint examiners found

Giddings’s left index fingerprint on the level.

Giddings’s Statements while in Jail

¶38 Giddings called King after his arrest to ask King to take care of some things. King

visited Giddings in jail. King told Giddings that the police wanted to talk with King. King

expressed his concern about the interview due to his lack of an alibi. He claimed to have

been home alone sleeping at the time of Amy’s murder. Giddings changed his story about

Amy’s death after he learned that King did not have a solid alibi. Giddings now claimed that

King had killed Amy, although Giddings previously had insisted that Mike Mix had killed

her.
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¶39 Witnesses said that Giddings also had told inconsistent stories about Amy’s murder

while he was in jail awaiting trial. Shannon Rawlins (Rawlins), Ryan Mulcahy (Mulcahy),

and John Gillette (Gillette) each testified about statements Giddings made while they were in

jail together. Giddings told Rawlins that he remembered going to Amy’s house for

methamphetamine or money. Giddings said he remembered arguing with Amy and striking

her, but then blacked out. Giddings claimed that he next remembered leaving the house

covered in blood. Rawlins said that Giddings offered to pay him around $3000 if after

Rawlins’s release from jail he would get rid of Joe MacDonald, a witness in Giddings’s case.

¶40 Giddings told Mulcahy that King had committed the murder and that Giddings had

attempted only to dispose of the evidence. Giddings consistently denied killing Amy in his

conversations with Mulcahy or even having been present when she was killed. Giddings told

Gillette that he had stopped by the Rolfe residence to collect money from a

methamphetamine deal, and that Mix was not there. Giddings said that he had argued with

Amy, and that he had hit her repeatedly until she fell down. Gillette testified that Giddings

previously had told him various contradictory stories about Amy’s murder, including that he

had not been involved at all, and that Mix had been involved in cleaning up the murder.

¶41 The State charged Giddings on July 27, 2005, with Count I - Deliberate Homicide,

Count II - Tampering With or Fabricating Physical Evidence, and Count III - Possession of

Dangerous Drugs and Solicitation. The State later added Count IV - Tampering with a

Witness/Informant. The trial began on January 8, 2007, after numerous continuances. The

jury convicted Giddings of Counts I through III and found Giddings not guilty of Count IV.

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The court sentenced Giddings to life in prison without the possibility of parole. Giddings

appeals.

STANDARD OF REVIEW

¶42 The denial of a motion to dismiss in a criminal case presents a question of law that we

review de novo. State v. Price, 2002 MT 229, ¶ 9, 311 Mont. 439, 57 P.3d 42. We review a

district court’s discretionary rulings, including evidentiary rulings, decisions to deny a

motion for a mistrial, and decisions to endorse witnesses, for an abuse of discretion. State v.

Duncan, 2008 MT 148, ¶ 37, 343 Mont. 220, 183 P.3d 111. A district court abuses its

discretion when it acts arbitrarily without employment of conscientious judgment or so

exceeds the bounds of reason as to work a substantial injustice. McCormack v. Andres, 2008

MT 182, ¶ 22, 343 Mont. 424, 185 P.3d 973. We review criminal sentences that include at

least one year of actual incarceration for legality only. We consider whether the sentencing

court had the statutory authority to impose the sentence and whether the sentence falls within

the parameters set by the applicable sentencing statutes. State v. Rosling, 2008 MT 62, ¶ 59,

342 Mont. 1, 180 P.3d 1102.

DISCUSSION

¶43 Did the District Court properly deny Giddings’s motion to dismiss based on the

State’s alleged intentional destruction of exculpatory evidence?

¶44 Detective Ekola interviewed King about Amy’s homicide on four separate occasions.

The first interview lasted approximately one hour. King adamantly objected to having

Detective Ekola record the interview. Detective Ekola elected not to record the interview so

that he could develop a rapport with King. Detective Ekola admitted that he could have
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taped the interview without King’s knowledge. Detective Ekola took handwritten notes. He

destroyed the notes after typing a summary of the information that he deemed valuable.

¶45 King allowed Detective Ekola to tape the second interview. Detective Ekola recorded

the interview using a 90-minute tape with approximately 45 minutes on each side. Detective

Ekola failed to recognize that the tape had stopped recording after 45 minutes. The interview

continued for approximately 15 minutes after the tape had stopped. Detective Ekola took

notes throughout the interview. He included the information that he determined to be

valuable in a typed report.

¶46 King’s third and fourth interviews each lasted approximately 30 minutes. Detective

Ekola recorded both interviews. The recording of the fourth interview is of poor quality.

Detective Ekola destroyed his notes of the interviews after summarizing in typed reports the

issues that he deemed important. The State produced each of Detective Ekola’s typed reports

to Giddings.

¶47 Giddings claims that Detective Ekola’s actions violated his due process rights.

Giddings points to Detective Ekola’s intentional destruction of his handwritten interview

notes, his failure to tape-record the first interview with King, and his failure to tape-record

fully the second interview with King. The State’s suppression of material evidence favorable

to a defendant violates the defendant’s Fourteenth Amendment guarantee of due process.

State v. Johnson, 2005 MT 318, ¶ 12, 329 Mont 497, 125 P.3d 1096 (citing Brady v.

Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963)).

¶48 The party seeking to establish a Brady violation in Montana bears the burden of

establishing that:
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 (1) the State possessed evidence, including impeachment evidence, favorable
to the defense; (2) the petitioner did not possess the evidence nor could he
have obtained it with reasonable diligence; (3) the prosecution suppressed the
favorable evidence; and (4) had the evidence been disclosed, a reasonable
probability exists that the outcome of the proceedings would have been
different.

Johnson, ¶ 12 (citing Gollehon v. State, 1999 MT 210, ¶ 15, 296 Mont. 6, 986 P.2d 395).

The deliberate or intentional suppression of exculpatory evidence by the prosecution

constitutes a per se due process violation in Montana. State, City of Bozeman v. Heth, 230

Mont. 268, 272, 750 P.2d 103, 105 (1988). Where the lost evidence is only potentially

exculpatory, rather than apparently exculpatory, the defendant must show bad faith by the

State in order to establish a due process violation. Arizona v. Youngblood, 488 U.S. 51, 57-

58, 109 S. Ct. 333, 337 (1988).

¶49 Giddings asserts that “we can never know” whether the notes contained exculpatory

information. According to Giddings, “[t]he handwritten notes could have contained

exculpatory evidence. They could not have. But that was not the point. What mattered was

the fact that evidence existed in Giddings’s case he could not use as part of his defense due

to Ekola’s intentional acts.” Giddings’s opinion of “the point” notwithstanding, a defendant

must meet the well-established standards delineated above, ¶ 48, in order to prove that the

State violated his due process rights by intentionally destroying exculpatory evidence.

Johnson, ¶ 12; Gollehon, ¶ 15.

¶50 Giddings provides no evidence to establish that Detective Ekola’s handwritten notes

contained information favorable to the defense. Johnson, ¶ 12. Giddings likewise has not

shown that a reasonable probability exists that his access to the notes would have changed

14
the outcome of the trial. Johnson, ¶ 12. Giddings simply argues that the notes may have

contained information favorable to the defense. Giddings’s speculation and conjecture about

the exculpatory value of the notes and the possibility that those notes might have changed the

outcome of the trial fails to establish a due process violation. Brady, 373 U.S. at 87, 83 S.

Ct. at 1196-97; Johnson, ¶ 12.

¶51 Giddings likewise has not established that Detective Ekola’s conduct constituted bad

faith. Youngblood, 488 U.S. at 57-58, 109 S. Ct. at 337. Detective Ekola testified that he

destroyed the notes only after transcribing all relevant information into his formal report.

Giddings concedes that “Ekola was not legally required to tape-record the interview nor was

he legally required to keep notes. He did not intentionally erase a tape or intentionally fail to

flip the tape.” Giddings asserts, however, that Detective Ekola was legally required to keep

his handwritten notes once he took them as they may have contained exculpatory

information. Giddings provides no legal authority to support this proposition. Giddings

states that “we will never know what the notes said because Ekola intentionally destroyed

them.” Giddings adds that Detective Ekola’s actions caused Giddings to have “no means of

determining what King actually said to police.” Giddings’s unsupported assertions and

suppositions do not establish the bad faith necessary to prove a due process violation based

on suppression of potentially exculpable evidence under Youngblood, 488 U.S. at 57-58, 109

S. Ct. at 337.

¶52 The State’s negligent suppression of evidence also may constitute a denial of a

defendant’s due process rights. Heth, 230 Mont. at 272, 750 P.2d at 105. Negligently

suppressed evidence must be “material and of substantial use, vital to the defense, and
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exculpatory” in order to violate due process. State v. Weaver, 1998 MT 167, ¶ 54, 290 Mont.

58, 964 P.2d 713. Evidence is exculpatory if it “would have tended to clear the accused of

guilt.” Heth, 230 Mont. at 272, 750 P.2d at 105 (citing Brady, 373 U.S. 83, 83 S. Ct. 1194;

State v. Patterson, 203 Mont. 509, 512-13, 662 P.2d 291, 293 (1983)).

¶53 Giddings attempts to meet his burden by pointing to State v. Swanson, 222 Mont. 357,

722 P.2d 1155 (1986). In Swanson, a DUI defendant exercised his statutory right to an

independent blood test. Police allowed the vial of blood to set on the counter for several

days, rendering it worthless. Swanson, 222 Mont. at 358-59, 722 P.2d at 1156-57. We

determined that the police had a duty to preserve the evidentiary value of the blood once they

took the sample. The spoiled vial of blood had no potentially exculpatory value. Swanson,

222 Mont. at 362, 722 P.2d at 1158.

¶54 Giddings, on the other hand, still possessed Detective Ekola’s typed reports that

summarized each interview. The State correctly observes that Giddings also had the ability to

interview all of the witnesses whom Detective Ekola had interviewed. Giddings could have

interviewed Detective Ekola. Giddings cross-examined Detective Ekola at trial. Giddings’s

analogy to Swanson falls short. Giddings likewise has failed to demonstrate that the

existence of Ekola’s contemporaneous notes would have changed the outcome of the trial.

State v. Wright, 2000 MT 322, ¶ 32, 302 Mont. 527, 17 P.3d 982. Giddings has not

established that the State violated his due process rights by intentionally or negligently

suppressing exculpatory evidence. The District Court properly denied Giddings’s motion to

dismiss based on the State’s alleged destruction of exculpatory evidence.

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¶55 Did the District Court properly deny Giddings’s motion to dismiss based on the

State’s alleged failure to provide discovery?

¶56 Giddings argues that the State violated his due process right to a fair trial by

withholding discovery material. He contends that the State’s failure to disclose

impeachment evidence and other evidence favorable to Giddings violated Brady, 373 U.S.

83, 83 S. Ct. 1194. Giddings also claims that the State’s failure to follow the District Court’s

discovery orders violated his right to confrontation by depriving him of the information

necessary to conduct a full cross-examination. Giddings finally alleges that the State’s

failure to provide discovery deprived him of effective assistance of counsel that impinged the

fundamental fairness of his trial. The discovery consisted in pertinent part of the criminal

histories and numerous related documents from Shannon Rawlins and a number of the

State’s witnesses, State Crime Lab information, FBI lab information, and DNA information

from Myriad Laboratories in Salt Lake City.

¶57 Giddings filed the last of a series of motions on December 21, 2006, that sought to

compel the State to provide various items of discovery, or alternatively asking the District

Court to dismiss the information, or to preclude the State from calling certain witnesses at

trial. The District Court conducted hearings connected to Giddings’s discovery demands on

September 13, 2006, December 8, 2006, and January 2, 2007. The court summarily denied

Giddings’s requests. Giddings filed a petition for a writ of supervisory control on January 5,

2007. This Court halted the trial proceedings in the middle of voir dire in order to consider

Giddings’s petition. We denied Giddings’s petition on January 11, 2007. Giddings v. First

Judicial District, No. OP 07-0012 (Jan. 11, 2007).
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¶58 Giddings and the State debate what evidence the State actually disclosed to Giddings,

when the State disclosed the evidence, and who was at fault for the alleged delays. We need

not determine conclusively whether Giddings’s or the State’s version of events is accurate.

Even assuming that Giddings’s version is accurate, he has failed to meet his burden of

proving error on appeal. State v. Hicks, 2006 MT 71, ¶ 22, 331 Mont. 471, 133 P.3d 206; see

also State v. Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, 87 P.3d 1032.

¶59 Giddings’s argument focuses on two issues: 1) that his counsel did not have sufficient

time to analyze scientific evidence to find exculpatory information, and 2) that his counsel

did not have the information necessary to impeach effectively the State’s witnesses.

Giddings argues that the withheld information “clearly constitutes Brady material.”

Giddings fails to establish, however, the specific elements required to demonstrate a Brady

violation. Johnson, ¶ 12.

¶60 Giddings filed his notice of appeal with this Court on May 29, 2007. We granted

Giddings five extensions to file his opening brief. He filed his brief on February 5, 2008,

more than one year after the jury had found him guilty. Giddings, with the benefit of an

additional year, fails to establish with any specificity that the State possessed evidence

favorable to the defense. Johnson, ¶ 12. Giddings has not established that any of the

evidence was exculpatory or that a reasonable possibility exists that the evidence would have

changed the outcome on appeal. Johnson, ¶ 12. He fails to point to specific evidence that

“would have tended to clear the accused of guilt.” Heth, 230 Mont. at 272, 750 P.2d at 105.

Giddings instead makes sweeping generalizations and broad accusations that fail to meet the

specific elements necessary to prove a Brady violation. Johnson, ¶ 12.
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¶61 Giddings likewise fails to establish that the State’s actions deprived him of effective

assistance of counsel and his right of confrontation to the point of depriving him of a fair

trial. Randi Hood, a lawyer with more than 30 years of experience, became Giddings’s

counsel on July 27, 2005. The State filed its information on August 9, 2005, and the District

Court set the first trial date for January 9, 2006. The court continued the trial date until

March 20, 2006. The District Court appointed Al Avignone, another lawyer with extensive

trial experience, on February 6, 2006, as co-counsel to assist Ms. Hood. The court then

continued the trial a second time until September 25, 2006. On July 27, 2006, the court

vacated the September 25, 2006, trial date to accommodate Giddings’s request for more time

to analyze the evidence. The court on July 28, 2006, appointed Mr. Avignone’s partner, Lisa

Banick, to act as Giddings’s third counsel. The parties agreed to try the case on January 8,

2007, approximately 17 months after the District Court first had appointed Ms. Hood as

Giddings’s counsel.

¶62 We stated in State v. Henderson, 2004 MT 173, ¶ 8, 322 Mont. 69, 93 P.3d 1231, that

counsel must do more than merely accompany the defendant in court. We emphasized the

defense counsel’s duty to advocate on behalf of the defendant. Henderson, ¶ 8. The District

Court continued Giddings’s trial for one year beyond the first trial date. Giddings’s trial

lasted for more than two weeks. His lawyers, with decades of combined experience, cross-

examined the State’s witnesses at length and repeatedly impeached their testimony.

Giddings’s lawyers effectively advocated for him, and did far more than merely accompany

him in court. Henderson, ¶ 8.

19
¶63 Giddings has failed to meet his burden of proving error on appeal. Hicks, ¶ 22. He

has not established that the State’s alleged withholding of discovery evidence violated

Brady, 373 U.S. 83, 83 S. Ct. 1194; Johnson, ¶ 12. He also has failed to establish that the

State’s actions deprived him of effective assistance of counsel or his right to confront his

accusers. The District Court properly denied Giddings’s motion to dismiss.

¶64 Did the District Court abuse its discretion when it allowed the State to add two

witnesses in the month preceding the trial?

¶65 Gillette and Mulcahy both testified about statements Giddings made to them while

they were in county jail. See ¶¶ 39-40. Gillette initially spoke with Detective Ekola in

September or October of 2005. Gillette told Detective Ekola that Giddings and King had

been involved in Amy’s murder. Gillette offered to provide details only if Detective Ekola

helped him with a parole violation issue in New York. Detective Ekola declined Gillette’s

offer to provide information in exchange for favored treatment. Detective Ekola documented

this information in a report that the State provided to Giddings. Gillette approached

Detective Ekola approximately one year later and offered to testify without receiving any

compensation.

¶66 The State moved to add Gillette as a witness on December 5, 2006. Giddings filed an

objection to the State’s motion on December 19, 2006, or alternatively, a motion to continue

the trial. The State moved to add Mulcahy as a witness on December 21, 2006. Giddings

filed his second motion to dismiss on December 21, 2006. The District Court considered the

matter at the January 2, 2007, pretrial hearing. Giddings argued that the District Court

should not allow Gillette or Mulcahy to testify because both were jailhouse informants and
20
because the State had failed to provide proper discovery. The District Court allowed both

witnesses to testify at trial.

¶67 Giddings argues that allowing Gillette and Mulcahy to testify violated his right to a

fair trial. Giddings points to the inherent unreliability of jailhouse snitches and argues that

cross-examination does not protect adequately a defendant’s rights. Giddings also claims

that he did not request extensive information on Mulcahy and Gillette because the prosecutor

had stated on August 4, 2006, that he would not be calling as witnesses any jailhouse

informants other than Shannon Rawlins. Giddings argues therefore that he lacked sufficient

time or information to prepare for, and properly impeach, Gillette and Mulcahy.

¶68 The State challenges Giddings’s depiction of Gillette and Mulcahy as jailhouse

informants. The State suggests that a government informant is “motivated by personal gain

rather than some independent law enforcement purpose.” State v. Grimes, 1999 MT 145,

¶ 45, 295 Mont. 22, 982 P.2d 1037. The State contends that this definition does not apply to

Mulcahy or Gillette, because neither witness testified in return for inducements or other type

of favorable treatment.

¶69 The appellant bears the burden to establish error by a district court. The appellant

must establish such error with legal authority. Bailey, ¶ 26. Giddings provides no evidence

to refute the State’s claim that Gillette and Mulcahy did not receive compensation or any

other form of personal gain for their testimony. Grimes, ¶ 45. Giddings also provides no

legal authority to contradict the State’s definition of jailhouse informant. Bailey, ¶ 26.

¶70 The relevant issue then is whether the District Court abused its discretion when it

allowed the State to add Gillette and Mulcahy as witnesses. We held in State v. Grindheim,
21
2004 MT 311, ¶ 34, 323 Mont. 519, 101 P.3d 267, that the district court did not abuse its

discretion when it granted the State’s motion to add a witness five days before trial. We

emphasized that neither the witness nor the content of the witness’s testimony was a surprise

to the defense as the State had provided the defense with a copy of the witness’s statement

about four months before the trial. Grindheim, ¶¶ 26, 33. In Bailey, ¶ 21, we determined

that the district court did not abuse its discretion in granting the State’s motion to add an

expert witness four days before trial. We emphasized that the prosecution had provided

defense counsel with a full opportunity to examine its files. Bailey, ¶ 14.

¶71 Giddings likewise knew that Gillette and Mulcahy were potential witnesses at trial.

The State contended that it had a standing offer to let Giddings examine its file. Bailey,

¶ 14. Detective Ekola provided Giddings with a report in 2005 that detailed the nature of

Gillette’s testimony. Giddings had more than a month to prepare his cross-examination of

Gillette after the State gave formal notice. Giddings’s detailed cross-examination of Gillette

regarding his past crimes further belies his claim that he did not have sufficient time to

impeach effectively.

¶72 Though the State initially did not endorse Mulcahy as a witness, it did provide

Giddings with a report that detailed the information provided by Mulcahy. The State

provided Giddings with an NCIC report on Mulcahy on November 29, 2006. Giddings’s

July 7, 2006, motion to compel also indicates that Giddings knew that Mulcahy potentially

would testify. Giddings’s motion requested the State to provide the complete criminal

history of “any witnesses the State intends to call at trial . . . in this matter, including but not

limited to . . . Ryan Mulcahy.”
22
¶73 Giddings further claims that Mulcahy’s testimony about Giddings’s attempt to

implicate King in the murder suggested to the jury that Giddings had lied. This argument

also falls short. Mulcahy recounted Giddings’s claim that King, rather than Giddings, had

been involved in the murder. Giddings elected at that point not to impeach Mulcahy

regarding Mulcahy’s criminal history. Giddings instead elicited more testimony from

Mulcahy regarding Giddings’s claim that King had committed the murder. The testimony

that Giddings elicited from Mulcahy shed a negative light on King, rather than on Giddings.

¶74 We cannot say based on the record that the District Court acted arbitrarily without

employment of conscientious judgment when it endorsed Mulcahy and Gillette as witnesses.

McCormack, ¶ 22. The record also does not indicate that the District Court’s actions caused

Giddings a substantial injustice. McCormack, ¶ 22. The District Court therefore did not

abuse its discretion when it allowed the State to add Gillette and Mulcahy as witnesses.

McCormack, ¶ 22.

¶75 Did the District Court abuse its discretion when it denied Giddings’s motion for a

mistrial based on the State’s alleged violation of the District Court’s order in limine?

¶76 The District Court’s order in limine excluded “any testimony or other evidence

concerning whether Rolfe disliked or was afraid of Giddings.” Giddings alleges that the

State violated the court’s order three separate times. The first alleged violation occurred

when the prosecutor elicited testimony from Detective Ekola that Rick Strobel (Strobel), an

associate of Giddings, had told him that King “would have been afraid of Giddings.”

Giddings argued outside the presence of the jury that the prosecutor had violated his promise

not to elicit testimony barred by the court’s order. Giddings also stated that Ekola’s
23
testimony violated the spirit of M. R. Evid. 404(b), which bars evidence of other crimes,

wrongs, or acts to show conformity therewith.

¶77 Detective Ekola’s statement about King being afraid of Giddings did not violate the

District Court’s order in limine or M. R. Evid. 404(b). The statement did not implicate

“testimony or other evidence concerning whether Rolfe disliked or was afraid of Giddings.”

His testimony was not evidence of “other crimes, wrongs, or acts.” M. R. Evid. 404(b); State

v. Clifford, 2005 MT 219, ¶¶ 46-49, 328 Mont. 300, 121 P.3d 489.

¶78 Giddings claims that the State next violated the order when Candice, Amy’s mother,

testified that Giddings had called looking for Amy the morning of the murder. Candice

testified that she had told Giddings that Amy was not there, and she had instructed him not to

call again. The prosecutor responded: “Okay. I don’t want you to say anything that Amy

said, okay? Could you describe her physical demeanor?” Candice answered: “She was

scared.”

¶79 Giddings did not object contemporaneously to Candice’s statement regarding Amy

being scared. In chambers, Giddings stated that he did not object immediately to the

statement because he did not want to call more attention to it. Giddings argues that the

“tactical decision” not to object contemporaneously was permissible, “especially in light of

not wanting to call more attention to the matter in front of the jury.” Giddings relies on

United States v. Goodman, 457 F.2d 68, 72 (9th Cir. 1972), in which the court approved the

practice of requiring incorporation by reference of previous objections after oral delivery of

jury instructions.

24
¶80 Giddings also objects to testimony from Richard King. King described going over to

Chris Rolfe’s house with Giddings. Amy and Mix were in the house at the time. King stated

that Strobel and Giddings talked while King went to the house. The following exchange

occurred between the prosecutor and King:

Q. So after you saw Strobel, you went into the house?

A. No, not – there was conversations before I went in.

Q. Okay. Was Giddings a party to that conversation?

A. Yes, he was out there.

Q. Okay. And tell us about that conversation.

A. Rick Strobel, as he was coming through, he said that he didn’t want

Giddings – that Mr. Giddings couldn’t go in there.

Q. Okay.

A. Amy specifically said – Amy –

Giddings’s counsel objected before King could finish his answer. Giddings moved for a

mistrial. The District Court denied Giddings’s motion for a mistrial after Giddings argued

his motion in chambers.

¶81 The State contends that there was nothing prejudicial in King’s partial response that

“Amy specifically said.” The State argues that what King’s answer might have been absent

Giddings’s objection does not entitle Giddings to a mistrial. The State also argues that

Giddings did not preserve properly his request for a mistrial based on Candice’s testimony

that “Amy was scared.”

25
¶82 We need not resolve the issue of whether Giddings properly preserved his objection to

Candice’s and King’s testimony. The disputed portions of Candice’s and King’s testimony,

individually or collectively, did not deny Giddings “a fair and impartial trial.” State v.

Weldele, 2003 MT 117, ¶ 75, 313 Mont. 452, 69 P.3d 1162. A mistrial is appropriate where

there is a reasonable possibility that inadmissible evidence might have contributed to the

conviction. State v. Partin, 287 Mont. 12, 18, 951 P.2d 1002, 1005-06 (1997). To determine

whether a prohibited statement contributed to a conviction we consider the strength of the

evidence against the defendant, the prejudicial effect of the testimony, and whether a

cautionary instruction could cure any prejudice. State v. Scarborough, 2000 MT 301, ¶ 81,

302 Mont. 350, 14 P.3d 1202.

¶83 Giddings contends that given the court’s prior orders, the court’s admonishments, and

the testimony, “it does not take a genius to put two and two together to realize Amy did not

want Giddings in the house because she was afraid of him.” Giddings argues that King’s

partial answer that “Amy specifically said” is “as severe” as the violation that prompted this

Court’s decision that a mistrial was appropriate in Partin, 287 Mont. 12, 951 P.2d 1002.

There the State charged the defendant with forgery. A detective who was an expert in

handwriting analysis testified that he had used fingerprints from Partin’s previous arrest as a

handwriting sample. Partin moved for a mistrial on the basis that the testimony violated the

court’s motion in limine to exclude other crimes evidence. Partin, 287 Mont. at 14, 951 P.2d

at 1003. We determined that the evidence against Partin was “far short of being very

overwhelming.” We noted that the detective’s testimony was the only link between Partin

and the forged check. Partin, 287 Mont. at 18-19, 951 P.2d at 1006-07.
26
¶84 The State offered overwhelming evidence linking Giddings to Amy’s murder. See

¶¶ 11-39; Partin, 287 Mont. at 19, 951 P.2d at 1006; Scarborough, ¶ 81. The disputed

testimony itself also is less prejudicial than in Partin. The statement that “Amy was scared”

does not constitute the type of direct other crimes evidence that “inevitably involves

prejudice to the defendant.” Partin, 287 Mont. at 19, 951 P.2d at 1006; see also M. R. Evid.

404(b). Giddings also objected before King could tell the jury what “Amy specifically said.”

The disputed portions of Candice’s and King’s testimony constituted small parts of a

complex three-week trial. The testimony did not individually or collectively deny Giddings

a fair trial. Weldele, ¶ 75. The District Court did not abuse its discretion in denying

Giddings’s motion for a mistrial. Duncan, ¶ 37.

¶85 Did the District Court abuse its discretion when it limited Giddings’s cross-

examination of Richard Alan King?

¶86 Giddings argues that the District Court’s restrictions on his cross-examination of King

violated his due process and Sixth Amendment right to present a complete defense. The

District Court allowed Giddings to cross-examine King regarding his drug activity during the

week of July 18, 2005, and his drug arrest in September of 2005, statements King made

about being angry with Mike Mix and descriptions of how King intended to harm Mix, and

King’s 1998 deceptive practices conviction. The District Court also allowed Giddings to

admit this evidence through other witnesses.

¶87 The District Court denied Giddings’s request to submit evidence that: 1) King

burglarized three homes in 1996, 2) King had been convicted of Aggravated Assault in 1996

for pointing a gun at someone and threatening him, 3) King had been convicted of a second
27
assault, 4) King allegedly had broken Saunders’s nose in December of 2005 and pled guilty

to Partner or Family member assault, 5) King allegedly had beaten up Buffy Miller, 6) King

allegedly was known to carry an ax handle and a tire iron, 7) King “didn’t like women,” and

8) King allegedly had threatened that other women would end up like Amy if they did not

comply with his wishes. Giddings sought to admit this evidence about King’s crimes and

other alleged acts in order to show that King had killed Amy.

¶88 A defendant may introduce “reverse 404(b) evidence” to inculpate another person,

thus exculpating himself. Clifford, ¶ 44; M. R. Evid. 404(b). A defendant seeking to offer

evidence of prior bad acts “must clearly articulate how that evidence fits into a chain of

logical inferences.” Clifford, ¶ 48. No link of this chain of logical inferences may be the

inference “that the defendant has the propensity to commit the crime charged.” Clifford,

¶ 48. The defendant may not introduce reverse 404(b) evidence where it lacks connection

with the crime, is speculative or remote, or does not tend to prove or disprove a material fact

in issue at the defendant’s trial. Holmes v. South Carolina, 547 U.S. 319, 327, 126 S. Ct.

1727, 1733 (2006).

¶89 Giddings argued that “anything having to do with King being a violent man is highly

relevant.” Much of the evidence that Giddings wanted to introduce in order to inculpate

King, however, clearly qualified as inadmissible propensity evidence. Giddings contends

that King had committed other acts of violence, so he likely acted in conformity by killing

Amy. King had burglarized homes in 1996, so he likely acted in conformity by breaking into

Amy’s home in 2005. King did not like women, so he likely acted in conformity by killing

28
Amy. King was known to carry around an ax handle, so he likely acted in conformity by

killing Amy with a blunt object.

¶90 Giddings’s arguments to the District Court contradict his assertion that he was “not

trying to paint a picture King was a bad guy, and from that picture have the jury believe he

killed Amy.” Giddings argued that the court should admit the evidence because “this jury is

going to be more inclined to think that Richard Alan King killed Amy Rolfe if they hear he’s

a violent man when he doesn’t get from a woman what he wants, that he proceeds to beat it

out of her.” Evidence offered for Giddings’s stated purpose directly would violate M. R.

Evid. 404(b)’s prohibition on evidence of character offered to show conformity therewith.

Clifford, ¶ 48.

¶91 The validity of much of Giddings’s “evidence” also was suspect. Giddings failed to

“create a chain of logical inferences” between the evidence and Amy’s murder, despite

numerous opportunities to present evidence showing specific connective facts. Clifford,

¶ 48; Holmes, 547 U.S. at 327, 126 S. Ct. at 1733. Giddings attempts to create this chain of

logical inferences on appeal using evidence not presented at trial. Giddings claims that he

also argued that he should have been allowed to show that King had threatened Amy, that

King had been removed from Amy’s house, and that the locks on Amy’s house had been

changed because of King. The State appears to be correct in its assertion that Giddings

actually committed these acts, not King. The State on August 4, 2006, moved to introduce

this exact evidence about Giddings in its response to Giddings’s motion in limine to exclude

“Just” Evidence.

29
¶92 Giddings also argues that the District Court should have permitted cross-examination

of King on these matters under M. R. Evid. 404(c) and 405(b). These rules allow proof of

specific instances of conduct in cases in which character or a trait of character constitutes an

essential element of a charge, claim, or defense. Giddings argued to the District Court that

evidence of King’s violent nature “certainly is an essential element of our case that he’s –

that he is a violent person. And that he attacks women when he is – when he is angry and

upset.” This argument represents another attempt to introduce impermissible propensity

evidence. Giddings’s defense was that King killed Amy. A potentially violent nature does

not constitute an essential element to homicide. See § 45-2-102(1)(a), MCA.

¶93 Giddings posits a number of other theories for why the District Court should have

allowed him greater latitude in cross-examining King. Each theory represents an attempt to

admit propensity evidence under a different guise. Despite numerous requests from the

District Court to make offers of proof, Giddings failed to show that the evidence was not

propensity evidence, that the evidence was not speculative, and that the evidence was not

remote from the crime. Holmes, 547 U.S. at 327, 126 S. Ct. at 1733. Giddings also failed to

create a chain of logical inferences tending to prove or disprove a material fact. Clifford,

¶ 48. The District Court thoroughly analyzed Giddings’s request to cross-examine King

about prior acts that allegedly pointed to King killing Amy. The District Court did not abuse

its discretion when it limited Giddings’s cross-examination of King. Duncan, ¶ 37.

¶94 Did the District Court prejudice Giddings by allowing a videotape of a police

interview with Giddings into the jury room during deliberations?

30
¶95 The police conducted two interviews of Giddings the day after the murder. The

District Court admitted into evidence an edited videotape of the interviews. The jury watched

the videotape aided by a corresponding transcript during the State’s case. The court advised

the jury that they would not have the transcript in the jury room. Giddings did not object to

the playing of the videotape, but argued that it should not go to the jury room. The District

Court determined that the videotape was not testimonial in nature and simply constituted

Giddings’s voluntary statement the day after the homicide.

¶96 Giddings argues that the District Court violated his due process rights by allowing the

videotape into the jury room. Giddings claims that the jury’s possible review of the

videotape during deliberations unduly emphasized his demeanor and his statements to the

exclusion of other witness testimony. Section 46-16-504, MCA, provides that juries may

take into deliberations any exhibit admitted into evidence “that in the opinion of the court

will be necessary.” We highlighted in State v. Bales, 1999 MT 334, ¶ 23, 297 Mont. 402,

994 P.2d 17, the risk of undue emphasis if the district court sends testimonial materials into

the jury room during deliberations.

¶97 We need not resolve the issue of whether the Giddings videotape is testimonial in

nature. The District Court’s action did not prejudice Giddings. Giddings has not claimed,

and the record does not show, that his statements and demeanor on the tape conflict with

testimony given by other witnesses at trial. Bales, ¶¶ 25, 29. Giddings also has not claimed

that the tape was critical to the State’s case. Bales, ¶ 25. The tape has limited evidentiary

value due to its poor visual and audio quality. We agree with the State that any evidentiary

31
value that the jury may have derived from the videotape came from watching the videotape

with the aid of a transcript during the trial.

¶98 The District Court’s ruling that allowed the videotape to accompany the jury during

deliberations did not emphasize unduly the Giddings interview to the exclusion of other

witnesses. Bales, ¶ 25. In light of the totality of the circumstances, we conclude that the

videotape was at worst cumulative of other evidence, and that it did not prejudice Giddings.

Bales, ¶¶ 29-30.

¶99 Does the doctrine of cumulative error warrant reversal of Giddings’s conviction?

¶100 Giddings argues that numerous errors during the course of the trial warrant reversal

under the cumulative error doctrine. The cumulative error doctrine requires reversal of a

conviction where a number of errors, taken together, have prejudiced a defendant’s right to a

fair trial. State v. Ferguson, 2005 MT 343, ¶ 126, 330 Mont. 103, 126 P.3d 463. The

defendant must establish the existence of prejudice. Mere allegations of error without proof

of prejudice are inadequate to satisfy the doctrine. Ferguson, ¶ 126. We decline to apply the

cumulative error doctrine to Giddings’s claims. We separately considered each of

Giddings’s claims above and determined that he was not prejudiced.

¶101 Did the District Court illegally sentence Giddings to life without the possibility of

parole?

¶102 The jury convicted Giddings of deliberate homicide in violation of § 45-5-102(1)(a),

MCA. A sentencing court may sentence a person convicted of homicide to death, life
32
imprisonment, or imprisonment for a term of 10 to 100 years. Section 45-5-102(2), MCA.

Whenever the sentencing court imposes imprisonment for a term exceeding one year, the

court also may impose a parole eligibility restriction. Section 46-18-202(2), MCA. The

District Court sentenced Giddings to life without parole.

¶103 Giddings argues that the District Court’s parole eligibility restriction constitutes a

sentence enhancement that requires a unanimous jury pursuant to Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348 (2000). We rejected a similar claim in State v. Garrymore,

2006 MT 245, 334 Mont. 1, 145 P.3d 946. We concluded that “the statutory maximum

punishment for the crime of deliberate homicide when the death penalty is not sought, for the

purposes of Apprendi, is life imprisonment without the possibility of parole.” Garrymore,

¶ 32; see also Rosling, ¶¶ 64-65 (affirming Garrymore). The State did not seek the death

penalty for Giddings. Life imprisonment without the possibility of parole falls within the

range of punishments authorized by a jury’s guilty verdict on a deliberate homicide charge

under § 45-5-102(1), MCA. Garrymore, ¶ 32; Rosling, ¶¶ 64-65. The District Court’s

sentence of life without the possibility of parole did not constitute an enhancement of the

maximum punishment authorized by the jury’s verdict of guilty on the deliberate homicide

charge. Garrymore, ¶ 32; Rosling, ¶¶ 64-65.

¶104 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ JOHN WARNER
33
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON

34