State v. Kingman

November 1 2011

DA 10-0260

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 269

STATE OF MONTANA,

Plaintiff and Appellee,

v.

MILES CASSIDY KINGMAN,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC-08-272A
Honorable Holly Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender, Shiloh Hernandez (argued),
Assistant Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General, Jonathan M. Krauss (argued),
Assistant Attorney General, Helena, Montana

Marty Lambert, Gallatin County Attorney, Todd Whipple, Deputy
County Attorney, Bozeman, Montana

Argued: May 2, 2011
Submitted: May 10, 2011
Decided: November 1, 2011

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Miles Cassidy Kingman appeals his conviction and sentence rendered in the

Eighteenth Judicial District Court, Gallatin County. He raises two issues on appeal:

1. Whether Kingman’s motion to change venue should have been granted on the
basis of “presumed prejudice” resulting from pretrial publicity.

2. Whether Kingman’s right of dignity under Article II, Section 4 of the Montana
Constitution was violated by the prosecutor’s arguments during sentencing.

We affirm as to both issues.

BACKGROUND

¶2 Kingman and his friend, Ryan Dibert, went out drinking at a number of Bozeman

bars the evening and early morning hours of September 16 and 17, 2008. Their last stop

was the Scoop Bar. When they left the Scoop, at around 1:15 a.m., Dibert noticed a

motor scooter in the parking lot behind the bar. Dibert jumped on the scooter and began

pushing it around. Paul Overby, who also had been at the Scoop drinking that night, and

whose friend owned the scooter, confronted Dibert and Kingman. Overby told Dibert

and Kingman to leave the scooter alone. Dibert apologized and got off the scooter, and

Overby took possession of it.

¶3 The altercation did not end there, however. Overby yelled at Dibert and Kingman

and told them to “get the hell out of here.” Dibert and Kingman, in turn, proceeded to

argue back. The interaction escalated and caught the attention of two passersby, who

observed Overby, Dibert, and Kingman shouting, gesturing, and posturing. Kingman

eventually grabbed Dibert and they began to walk away, but Overby followed, insulting

and threatening them. Overby shoved Kingman several times and hit Kingman once, at

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which point Kingman turned and punched Overby. One of the bystanders, who testified

at trial, heard Overby state: “Is that all you got?” Overby then turned around and started

to walk back toward the Scoop, at which point Kingman struck Overby on the side of the

head. This appeared to stun Overby. Kingman hit Overby again, which caused Overby

to fall to the ground. At that point, Kingman got on top of Overby, who was lying face

up, and punched Overby in the face upwards of 15 to 20 times. As one of the bystanders

described it, “It was unreal how fast [Kingman] hit [Overby] but he hit him many, many,

many times over and over and over again.” Overby, meanwhile, just lay there, not

responding at all. One of the bystanders yelled at Kingman to stop. Kingman then got

off Overby, but Dibert decided to deliver a few “ending blows” and kicked Overby three

to five times. Dibert and Kingman then fled the scene.

¶4 Witnesses approached Overby, who was lying on the ground unconscious. His

face was unrecognizable. It was covered in blood and one of his eyes was swollen.

Blood, teeth, and lacerated flesh were “floating around” in his mouth. Overby appeared

to be choking on his own blood, so one of the witnesses rolled Overby on his side to

allow the blood to flow out of his mouth. Another witness called 911. Shortly after the

responding officer arrived, Overby stopped breathing and the officer was unable to find a

pulse. The officer thus commenced chest compressions, and Overby eventually started to

breathe again, although he still gasped and gurgled. Medical personnel soon arrived, took

over Overby’s care, and transported him to the hospital.

¶5 Overby suffered extensive fractures to the vast majority of the bones in his face.

Not only were the bones fractured, they had been “pushed back”—meaning that while the

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bones in our faces are normally “convex,” Overby’s bones were “flattened or concave.”

He also had air inside his cranium due to “an open fracture to his brain.” His injuries

were life-threatening, and one of the doctors who treated Overby testified that he was

surprised Overby survived to make it to the emergency room. Due to the complexity of

his injuries and the need for a neurosurgeon, which was not available in Bozeman,

Overby was flown to Billings. Overby was in the hospital for about a month and had to

undergo reconstructive surgeries. He spent another month in rehabilitation.

¶6 In the meantime, after fleeing the scene of the fight, Kingman and Dibert went to

Kingman’s home, where the two of them “recapped” what had happened. Kingman, who

was “really drunk” and “hyped up on adrenaline,” realized that he had a gash on his hand

which would not stop bleeding. Lacking first aid supplies, he decided to go to the home

of his friends Zane and Josette in Belgrade to get his hand stitched up. Kingman later

explained at trial that Zane and Josette were “like family” to him. Also, he and Zane

were “big fans of UFC boxing and contact sports. . . . [I]f one of us had been in a fight,

we’d call each other and brag about it.” Thus, before leaving his house, Kingman called

Zane and, when Zane did not answer, left the following voicemail message:

Zane, its Miles. Call me back, dude. I beat this guy to death. I,
there’s blood all over the house. In fact, both of my legs have splatters of
blood on them. And my right hand, it’s split so f---ing1 gnarly bad like
thank god I’m drunk cause it would hurt horrible. I can’t even wash it out
it hurts so bad. But oh my god, dude. Wait till you see my shoes and my
pants. I kicked the f--- outta this guy, dude. I just stood over him like
f---ing Chuck Liddell getting knocked out. Just one, two, one, one, one,

1
To avoid the gratuitous recitation of expletives, Kingman’s repeated and varied
usages of the word “fuck” have been abbreviated, as indicated. The message is otherwise
quoted verbatim from the audio recording contained in the record.

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 two. Just splatters all over both my pants. I’m never washing them again,
dude. Yeah. Two knockouts in one night. I, oh my god dude. This guy’s
got brain damage. Oh my god. I hit him so f---ing hard. Wait till you see
my shoes, my pants, and my shirt, dude. I got splatter to the face. In fact,
my face has f---ing got blood splatters from this mother f---er from hitting
him so f---ing hard on the ground. Just, oh. Why aren’t you answering the
phone? My right fist is pretty f---ing broke, dude. I’m pretty sure I can’t
work. I, I’ll work tomorrow, but my right fist is broke, and it hurts horrible.
But it’s, it’s bleeding bad. Anyway, we’re gonna send you pictures, dude.
My hand. Oh my god, I kicked this mother f---er to death, dude. I felt, oh
my god I wish you were there, dude. Oh. Ask Ryan, dude, I just f---ing, it
sounded like I was like Rocky punching wet meat on this mother.
Everybody, a hundred people around, “Stop hitting him. He’s gone.” I was
just crack, crack, crack, crack. Oh, this mother f---er. Oh. I’ve nev, oh
god it feels so good. So good. Call me back when you get this. Beep,
beep, beep. I don’t care how late. It’s so good. Beep, beep, beep. Oh, I’m
gonna call you back right now. Bye.

Zane later turned a recording of this message over to the police.

¶7 Kingman called his friend Katelin and told her he had been in a bar fight and

needed a ride out of town. Katelin picked Kingman and Dibert up and drove them to

Zane and Josette’s home in Belgrade. Katelin noticed that Kingman had blood on his

clothes and was acting a “[l]ittle bit hyped up and a little bit paranoid.” Kingman was

somewhat evasive when Katelin inquired about what had happened. She found his

explanations implausible and the whole situation “shocking,” “creepy,” and “suspicious.”

After dropping Kingman and Dibert off in Belgrade, Katelin contacted the police.

¶8 Kingman was arrested later that morning (September 17, 2008), and the State

charged him October 3 with attempted deliberate homicide. The State also charged

Dibert with attempted deliberate homicide. The District Court initially set Kingman’s

trial for late July 2009; however, pursuant to a defense motion, the court continued the

trial to November 12, 2009. A three-day jury trial commenced on that date.

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¶9 In the interim, local media—newspaper, television, and radio—reported on the

altercation behind the Scoop and subsequent developments related to the charges filed

against Kingman and Dibert. Most of this coverage occurred during the first three weeks

following the incident, though there was some sporadic coverage in late 2008 and the

first half of 2009 as well. In addition to the news media publicity regarding the case,

various fundraising activities occurred in the Gallatin County area on Overby’s behalf.

His friends placed donation jars in several local businesses, set up a fund at Big Sky

Western Bank, and organized a benefit (referred to as “Pillage in the Village ’08”) in Big

Sky, Montana, which reportedly raised $5,800. According to one of the news stories, the

majority of Overby’s medical costs were covered by insurance, but the moneys raised by

his friends helped with living expenses during his recovery.

¶10 On June 29, 2009, Kingman’s defense filed a motion for change of venue “due to

the inflammatory nature of the publicity, the repeated statements in the media which

presume the guilt of Mr. Kingman, and the resulting prejudice in the community such that

it is reasonable to believe he will not receive a fair and impartial trial.” As grounds for

the motion, Kingman cited § 46-13-203, MCA (providing for change of the place of trial

because of prejudice), the Sixth and Fourteenth Amendments to the United States

Constitution, and Article II, Sections 17 and 24 of the Montana Constitution.

¶11 Following a status conference, the District Court ordered the Clerk of the District

Court to draw a jury panel of 150 jurors. Both Kingman and the prosecution agreed that

the 150 individuals drawn were a representative sample of potential jurors in Gallatin

County. The prosecution and Kingman stipulated to a jury questionnaire, which was

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mailed to prospective jurors. Included in the questionnaire were several questions related

to Kingman’s motion to change venue: whether the prospective juror had seen, read, or

heard anything about the case; from what sources and how many times the juror had seen,

read, or heard about the case; what the juror thought he or she knew about the case; and,

as a result of what he or she had seen, read, heard, or discussed about the case, whether

the juror had “formed an opinion that would affect your ability to serve as a juror.” The

District Court attached a cover letter directing the prospective jurors, among other things,

not to make any investigation or inquiries into the case on their own and not to watch or

read any news accounts relating to the case. All 150 prospective jurors returned their

questionnaires. On the question whether the juror had seen, read, or heard anything about

the case, 96 marked “yes,” 47 marked “no,” 3 left the question blank, and 4 indicated

they were unsure whether they knew of the case. As to the question whether the juror

had “formed an opinion that would affect your ability to serve as a juror,” 27 marked

“yes,” 108 marked “no,” and 15 left the question blank.

¶12 The District Court held a hearing on Kingman’s motion. The court and the parties

agreed that the court would decide the motion based on the responses received to the

juror questionnaires and on the exhibits submitted by Kingman (recordings of KBZK

television broadcasts, copies of newspaper articles, census information, and circulation

statistics for the Bozeman Daily Chronicle). Kingman and the prosecution presented

arguments and thereafter filed proposed findings of fact and conclusions of law. The

District Court then issued its decision, denying the motion. The court concluded that the

pretrial publicity had not been inflammatory and that Kingman had failed to show that the

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prospective jurors could not set aside what they had heard or read in the media and decide

his guilt impartially and based solely on the evidence admitted at trial.

¶13 The case proceeded to trial. Kingman argued to the jury that he had attempted to

retreat from the altercation with Overby, but when Overby followed and shoved him

several times, Kingman reacted in self-defense. Ultimately, the jury acquitted him of

attempted deliberate homicide but convicted him of aggravated assault, a lesser included

offense. At the sentencing hearing, the prosecutor recommended the maximum sentence

of 20 years imprisonment. In so doing, the prosecutor argued that what Kingman did on

September 17, 2008, was “inhuman,” and the prosecutor likened Kingman to an “animal”

that needed to be “caged.” In response, defense counsel argued that this was an offensive

and inappropriate argument and that all persons, even those convicted of crimes, are still

afforded “at least some measure of human dignity.”

¶14 The District Court sentenced Kingman to the Montana State Prison for 20 years,

with none of that time suspended. The court also imposed restitution in the amount of

$183,115.43 and ordered Kingman to register as a violent offender. Kingman now

appeals. Additional facts are set forth below where relevant.

DISCUSSION

¶15 Issue 1. Whether Kingman’s motion to change venue should have been granted
on the basis of “presumed prejudice” resulting from pretrial publicity.

¶16 As noted, Kingman asserts his rights under the Sixth and Fourteenth Amendments

to the United States Constitution and under Article II, Sections 17 and 24 of the Montana

Constitution. Although he presents two separate analyses in this regard—one under the

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federal Constitution and the other under the Montana Constitution—we conclude, for the

reasons which follow, that the framework for analyzing change-of-venue motions is the

same under both documents.2 In reaching this conclusion, we reconcile our approach

with that followed by the federal courts so as to facilitate consistency in the analysis.

Foundational Change-of-Venue Principles

¶17 A criminal charge brought under Montana law must be filed in the county where

the offense was committed, and the place of trial must be in that same county, unless

otherwise provided by law. Sections 46-3-110(1), -111(1), MCA; see also Mont. Const.

art. II, § 24 (the accused has the right to be tried by a jury of the county or district in

which the offense is alleged to have been committed). Analogously, a federal

prosecution occurs in the state and district where the crime was committed. Skilling v.

U.S., ___ U.S. ___, 130 S. Ct. 2896, 2913 (2010) (citing U.S. Const. art. III, § 2, cl. 3,

and amend. VI).

¶18 At the same time, however, Article II, Sections 17 and 24 secure to the defendant

the right to a “fair trial” by an “impartial jury.” See State v. Allen, 2010 MT 214, ¶ 25,

357 Mont. 495, 241 P.3d 1045; In re T.J.F., 2011 MT 28, ¶ 26, 359 Mont. 213, 248 P.3d

804; State v. Dryman, 127 Mont. 579, 588, 269 P.2d 796, 800 (1954). The Sixth and

Fourteenth Amendments likewise guarantee “a fair trial by a panel of impartial,

indifferent jurors.” Hayes v. Ayers, 632 F.3d 500, 507 (9th Cir. 2011) (internal quotation

2
Of course, “we may interpret a provision of the Montana Constitution to afford
greater protection than that afforded by its federal counterpart.” State v. Clark, 1998 MT
221, ¶ 20, 290 Mont. 479, 964 P.2d 766. Hence, there may be circumstances in which a
change of venue is mandated by Montana law although the same is not required by
federal law. But the present case is not such a case.

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marks omitted). Accordingly, if there exists in the county in which the prosecution is

pending “such prejudice that a fair trial cannot be had in the county,” then the court is

required (upon motion by the defense or the prosecution) to transfer the cause to another

county, direct that a jury be selected from another county, or take any other action

designed to ensure that a fair trial may be had. Section 46-13-203, MCA. Similarly, in

the federal context, the court must transfer the proceeding to another district if “so great a

prejudice against the defendant exists in the transferring district that the defendant cannot

obtain a fair and impartial trial there.” Fed. R. Crim. P. 21(a); see also Skilling, 130

S. Ct. at 2913 (“The Constitution’s place-of-trial prescriptions . . . do not impede transfer

of the proceeding to a different district at the defendant’s request if extraordinary local

prejudice will prevent a fair trial—a ‘basic requirement of due process.’ ”).

¶19 As these rules make clear, the prerequisite for obtaining a change of venue on the

ground of “prejudice” is that there is such prejudice as will prevent a fair and impartial

trial in the current venue. There are various forms the prejudice might take—such as a

community uproar or too many people in the community with close ties to the victim—

but the ground most commonly advanced for a “fair trial” change of venue is that adverse

pretrial publicity precludes selection of an unbiased jury. Wayne R. LaFave et al.,

Criminal Procedure vol. 4, § 16.3(b), 806 (3d ed., Thomson/West 2007). In this regard,

Kingman points out that prejudice may be “presumed” in certain circumstances. Indeed,

as explained below, a motion for change of venue may be founded on presumed prejudice

or on actual prejudice, and different standards apply depending on which sort of prejudice

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is claimed. This distinction is recognized explicitly in federal caselaw but, until now, has

been essentially implicit in our own cases.

Presumed Prejudice versus Actual Prejudice under Federal Law

¶20 “ ‘The theory of our [trial] system is that the conclusions to be reached in a case

will be induced only by evidence and argument in open court, and not by any outside

influence, whether of private talk or public print.’ ” Skilling, 130 S. Ct. at 2913 (brackets

in Skilling) (quoting Patterson v. Colorado, 205 U.S. 454, 462, 27 S. Ct. 556, 558

(1907)). A defendant can establish that jurors drawn from the community cannot judge

his case impartially and unswayed by outside influence, thus necessitating a change of

venue, by two methods: he can demonstrate that the jury pool is actually prejudiced

against him, or he can demonstrate that juror prejudice should be presumed from

prejudice in the community and pretrial publicity. See Murphy v. Florida, 421 U.S. 794,

803, 95 S. Ct. 2031, 2038 (1975); U.S. v. Higgs, 353 F.3d 281, 307-08 (4th Cir. 2003);

Foley v. Parker, 488 F.3d 377, 387 (6th Cir. 2007); U.S. v. Blom, 242 F.3d 799, 803 (8th

Cir. 2001); Gallego v. McDaniel, 124 F.3d 1065, 1070 (9th Cir. 1997); House v. Hatch,

527 F.3d 1010, 1023-24 (10th Cir. 2008); see also e.g. Skilling, 130 S. Ct. at 2913-25

(analyzing the defendant’s claims of presumed prejudice and actual prejudice).

¶21 “[P]rejudice is presumed where ‘pretrial publicity is so pervasive and prejudicial

that we cannot expect to find an unbiased jury pool in the community.’ ” House, 527

F.3d at 1023 (quoting Goss v. Nelson, 439 F.3d 621, 628 (10th Cir. 2006)); see also U.S.

v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990) (prejudicial, inflammatory publicity

about the case has so saturated the community as to render it virtually impossible to

11
obtain an impartial jury); U.S. v. Campa, 459 F.3d 1121, 1150 (11th Cir. 2006) (en banc)

(prejudicial publicity has saturated the community, and there is a reasonable certainty that

the prejudice prevents the defendant from obtaining a fair trial). To justify a presumption

of prejudice under this standard, the publicity must be both extensive and sensational in

nature. Angiulo, 897 F.2d at 1181.

¶22 The seminal case on presumed prejudice is Rideau v. Louisiana, 373 U.S. 723, 83

S. Ct. 1417 (1963). There, the defendant’s videotaped confession to authorities was

repeatedly broadcast to the relatively small community over the local television station,

resulting in a “kangaroo court” which derailed due process and quashed any hope of a

fair trial in that locale. Rideau, 373 U.S. at 726, 83 S. Ct. at 1419. The Supreme Court

held that “the spectacle of Rideau personally confessing in detail to the crimes with

which he was later to be charged,” to the tens of thousands of people who saw and heard

it, “in a very real sense was Rideau’s trial—at which he pleaded guilty to murder. Any

subsequent court proceedings in a community so pervasively exposed to such a spectacle

could be but a hollow formality.” Rideau, 373 U.S. at 726, 83 S. Ct. at 1419 (emphasis in

original). The Supreme Court reached this conclusion “without pausing to examine a

particularized transcript of the voir dire examination of the members of the jury.”

Rideau, 373 U.S. at 727, 83 S. Ct. at 1419-20. Prejudice was presumed.

¶23 The Supreme Court also presumed prejudice in Sheppard v. Maxwell, 384 U.S.

333, 335, 86 S. Ct. 1507, 1508 (1966), due to “the massive, pervasive and prejudicial

publicity” that occurred before and during Sheppard’s trial on the charge of murdering

his wife. Not only was the case made “notorious” by the “virulent publicity” about

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Sheppard and the murder, but numerous pictures of the jurors, with their addresses,

appeared in the newspapers, exposing them to expressions of opinion from both cranks

and friends. Moreover, “bedlam” and a “carnival atmosphere” reigned at the courthouse

during trial, with newsmen taking over practically the entire courtroom and hounding

most of the participants in the trial, especially Sheppard. Sheppard, 384 U.S. at 353-55,

358, 86 S. Ct. at 1517-18, 1520. Due to the “inherently prejudicial publicity” which

saturated the community and the “disruptive influences” in the courtroom, the Supreme

Court concluded that Sheppard’s trial had been “inherently” lacking in due process.

Sheppard, 384 U.S. at 351-52, 363, 86 S. Ct. at 1516-17, 1522-23; see also e.g. Estes v.

Texas, 381 U.S. 532, 536, 85 S. Ct. 1628, 1629 (1965) (presuming prejudice where the

media’s overzealous reporting efforts led to “considerable disruption” of the proceedings

and denied the “judicial serenity and calm to which [the defendant] was entitled”).

¶24 The rationale underlying “presumed prejudice” is that “we simply cannot rely on

jurors’ claims that they can be impartial,” and we therefore declare the publicity to be

“prejudicial as a matter of law.” U.S. v. McVeigh, 153 F.3d 1166, 1182 (10th Cir. 1998)

(internal quotation marks omitted); see also Patton v. Yount, 467 U.S. 1025, 1031, 104

S. Ct. 2885, 2889 (1984) (“[A]dverse pretrial publicity can create such a presumption of

prejudice in a community that the jurors’ claims that they can be impartial should not be

believed.”); Hayes, 632 F.3d at 511 (“We may give little weight to a prospective juror’s

assurances of impartiality where the general atmosphere in the community or courtroom

is sufficiently inflammatory.” (citations and internal quotation marks omitted)); U.S. v.

Abello-Silva, 948 F.2d 1168, 1176-77 (10th Cir. 1991) (“In rare cases, the community is

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so predisposed that prejudice can be presumed, and venue must be transferred as a matter

of law.”); LaFave et al., Criminal Procedure vol. 6, § 23.2(a), 264 (“[P]rejudicial

publicity may be so inflammatory and so pervasive that the voir dire simply cannot be

trusted to fully reveal the likely prejudice among prospective jurors.”). The principle of

presumed prejudice is “rarely applicable” and is reserved for “extreme situations.” See

Hayes, 632 F.3d at 508; Campa, 459 F.3d at 1143; accord Skilling, 130 S. Ct. at 2915

(“A presumption of prejudice, our decisions indicate, attends only the extreme case.”).

The bar facing the defendant seeking to prove presumed prejudice is, correspondingly,

“extremely high.” McVeigh, 153 F.3d at 1182. Thus, it has been said that to establish

presumptive prejudice, the defendant must show that “an irrepressibly hostile attitude

pervade[s] the community” and that the publicity “dictates the community’s opinion as to

guilt or innocence.” Abello-Silva, 948 F.2d at 1176. It likewise has been said that

prejudice cannot be presumed unless the trial atmosphere has been “utterly corrupted by

press coverage.” Campa, 459 F.3d at 1144 (internal quotation marks omitted).

Circumstances amounting to “a circus atmosphere or lynch mob mentality” would justify

a presumption of prejudice. Stafford v. Saffle, 34 F.3d 1557, 1566 (10th Cir. 1994). So

would proceedings that are “entirely lacking in the solemnity and sobriety to which a

defendant is entitled in a system that subscribes to any notion of fairness and rejects the

verdict of a mob.” Murphy, 421 U.S. at 799, 95 S. Ct. at 2036. The reviewing court

“must find that the publicity in essence displaced the judicial process, thereby denying

the defendant his constitutional right to a fair trial.” McVeigh, 153 F.3d at 1181.

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¶25 Where circumstances are not so extreme as to warrant a presumption of prejudice,

the defendant may claim “actual prejudice.” Actual prejudice exists when voir dire

reveals that the jury pool harbors actual partiality or hostility against the defendant.

Foley, 488 F.3d at 387; Hayes, 632 F.3d at 508; see also House, 527 F.3d at 1024 (actual

prejudice manifests at jury selection when voir dire reveals that the effect of pretrial

publicity is so substantial as to taint the entire jury pool). The voir dire testimony and the

record of publicity must reveal “the kind of wave of public passion” that would make a

fair trial unlikely by a jury empaneled from that community. House, 527 F.3d at 1024

(internal quotation marks omitted). The relevant question is whether prospective jurors’

responses reflect “such fixed opinions that they could not judge impartially the guilt of

the defendant.” Patton, 467 U.S. at 1035, 104 S. Ct. at 2891. “Impartiality does not

mean jurors are totally ignorant of the case. Indeed, it is difficult to imagine how an

intelligent venireman could be completely uninformed of significant events in his

community. It is sufficient if the juror can lay aside his impression or opinion and render

a verdict based on the evidence presented in court.” Abello-Silva, 948 F.2d at 1178

(internal quotation marks omitted); accord Foley, 488 F.3d at 387.

Montana Law

¶26 Our own cases have resolved the question of prejudice in a similar manner.

¶27 In State ex rel. Coburn v. Bennett, 202 Mont. 20, 655 P.2d 502 (1982), we held

that a change of venue should have been granted based on “inherent prejudice.” Coburn

was charged with aggravated kidnapping and sexual intercourse without consent. Bail

initially was set at $100,000, but the district court reduced it to $15,000, which Coburn

15
posted, after which he was released. This prompted outrage in the community. Angry

citizens marched on the courthouse; public meetings were held; organizations were

established devoted to removing the district court judge and to dealing with persons who

commit sex crimes; vandalism occurred; and threats were made against Coburn. The

local newspaper reported on these events, detailing much of the evidence gathered by

investigators and tying that evidence to the defendant. In addition, some articles gave

quoted statements by the sheriff, the county attorney, and a deputy county attorney that

were prejudicial to the defendant. Coburn, 202 Mont. at 22-30, 655 P.2d at 503-07. On

several occasions, the newspaper went beyond an objective dissemination of information.

“Instead of calming an enraged community and providing an atmosphere in which the

processes of justice could go forward without bias, the [newspaper] inflamed an already

angry populace.” Coburn, 202 Mont. at 30-31, 655 P.2d at 507.

¶28 When the district court denied his motion for change of venue, Coburn filed a

petition for a writ of supervisory control. Appearing on behalf of the respondent judge,

the prosecutor argued that voir dire is the proper time to determine whether prejudice

against Coburn still existed. We disagreed. Citing federal caselaw, we explained:

While the determination of whether widespread prejudice prohibits
selection of an impartial jury is usually made during voir dire, each case
must turn on its special facts. It is widely recognized in the federal courts
that while voir dire is usually essential to resolution of a venue question, a
motion for change of venue may be decided prior to voir dire if the
circumstances of the case indicate inherent prejudice. Effective and
economic judicial administration is not well served by calling an inordinate
and unwieldy number of veniremen to see if an unbiased jury might be
obtained, especially when it is already apparent that a substantial chance of
intolerable prejudice exists.

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Coburn, 202 Mont. at 32-33, 655 P.2d at 508 (citations and internal quotation marks

omitted); accord State v. Paisley, 204 Mont. 191, 194-95, 663 P.2d 322, 324 (1983)

(finding voir dire unnecessary given the extensive and inflammatory media coverage of

the charges against the defendant). We noted, in addition, that “[b]eyond the question of

judicial economy lie the problems inherent in the voir dire system itself. . . . The

courtroom can exert a unique pressure upon a juror or prospective juror which may

render that person’s degree of impartiality indiscernible even to himself.” Coburn, 202

Mont. at 33, 655 P.2d at 508. In this connection, we cited another case, State v. Spotted

Hawk, 22 Mont. 33, 55 P. 1026 (1899), in which this Court also presumed prejudice.

¶29 In Spotted Hawk, the defendant (Spotted Hawk) was charged in Custer County

with the murder of a man named Hoover. Spotted Hawk’s motion to change the place of

trial was denied, after which he was tried, convicted, and sentenced to be hanged. On

appeal, we reversed and ordered a new trial. We did so in light of the following facts and

circumstances identified by Spotted Hawk: people in the county believed the Cheyenne

Indians had killed Hoover; thus, roughly 200 armed cowboys and ranchmen had gathered

near the Cheyenne Indian Agency intending either to force the murderers’ surrender or to

go on the Reservation and “exterminate the tribe”; these men were only persuaded from

attacking the Indians by the civil authorities of the county; at the time of Hoover’s burial,

a large number of men took an oath that they would be present at the trial of the Indians

charged with Hoover’s murder, and, if they were acquitted, the men “would take the law

in their own hands, and hang the Indians before they left the courthouse yard”; the Custer

County newspapers denounced the Indians and unduly excited the inhabitants with

17
“extravagant and inflammatory” publications; at the time Hoover’s body was found, and

thereafter, there was unfriendly talk against Spotted Hawk, and the inhabitants of the

county held him in utter contempt; bitterness against the Indians extended to all parts of

the county and existed at the time of the trial; and the military authorities sent several

companies of soldiers to prevent an outbreak of hostilities between the whites and Indians

over Hoover’s murder. Spotted Hawk, 22 Mont. at 47-48, 53-55, 55 P. at 1029, 1031-32.

In these circumstances, we presumed that such prejudice existed as to preclude a fair trial

in Custer County. Spotted Hawk, 22 Mont. at 56, 55 P. at 1032. We explained that when

the public sentiment is in “a blaze of excitement and passion” against one of the parties to

the action, the pressure of this public sentiment could make itself felt during the trial and

could influence or bias the jurors, the witnesses, and the officers of court, even if only

unconsciously, despite their honest intention of doing their duty. Spotted Hawk, 22

Mont. at 56, 55 P. at 1032 (internal quotation marks omitted).

¶30 We also presumed that an unbiased jury could not be selected in State v. Dryman,

127 Mont. 579, 269 P.2d 796 (1954). There, the defendant (Dryman), then 19 years of

age, without benefit of counsel, initially entered a plea of guilty to the charge of murder

and was sentenced to be “hanged by the neck until dead.” Following his first appeal to

this Court, Dryman was permitted to withdraw his guilty plea. He then filed a motion to

change venue on the ground that the people of Toole County were so prejudiced against

him that it would be impossible to receive a fair trial by an unbiased jury in the county.

The district court denied the motion, but on Dryman’s second appeal, we reversed. We

noted that certain publications by the local newspaper had “tended to fan the flame of

18
high feeling against the defendant rather than to quench it” and had also “tended to give

its readers the impression that the law and its procedures were deliberately, by trickery,

delay and favoritism, defeating justice.” Dryman, 127 Mont. at 589, 269 P.2d at 801.

Most notably, the paper had circulated a flyer captioned “Extra” at the top, containing a

picture of Dryman with the word “Killer” over his picture and detailing the story of the

crime and what took place in the courtroom when Dryman was first sentenced to death

following his plea of guilty. The article described Dryman as a “cold blooded killer.” It

noted that Dryman had the rights to counsel, to a jury trial, and to a change of venue, but

that he had declined to exercise these rights. The author opined that Dryman “must have

pre-judged in his own heart the black guilt in which he perpetrated the most dastardly

deed in the history of Toole County. Either that, or as it appeared he was so steeped in

criminal tendencies that nothing could appeal to his warped and stony mind.” Dryman’s

prior conviction for robbing a liquor store was cited. Dryman, 127 Mont. at 581-83, 269

P.2d at 797-98. In addition to the press coverage, we noted that pending his first appeal

to this Court, the trial judge, the local sheriff, and the State Prison Commission had all

agreed that Dryman should be housed at the state penitentiary in Deer Lodge, rather than

the Toole County jail, because “there was such a feeling and prejudice in Toole County

that defendant might have been lynched if he had been kept in Toole County.” Dryman,

127 Mont. at 588, 269 P.2d at 800. Moreover, at the hearing on the motion for change of

venue, the State’s witnesses conceded that the feeling in the community toward Dryman

was the same then as it had been immediately after the murder and Dryman’s guilty plea.

The “widespread and deep-seated opinion” was that Dryman was guilty and should be

19
hanged. Dryman, 127 Mont. at 586-87, 590, 269 P.2d at 799-800, 801. We noted that “it

seems natural that such opinion should exist in Toole County,” given Dryman’s guilty

plea and the inflammatory press coverage. But the existence of such opinion led us to

hold that he was entitled to have his new trial moved “from Toole County to some other

county not adjacent thereto.” Dryman, 127 Mont. at 590, 269 P.2d at 801.

¶31 As can be seen from these examples, this Court will presume prejudice—similar to

the approach of the federal courts—in extreme situations where there are such pervasive

and strong passions of anger, hatred, indignation, revulsion, and upset in the community

that we simply cannot rely on jurors’ claims that they can be impartial. Cf. State v. Abe,

1998 MT 206, ¶¶ 36-41, 290 Mont. 393, 965 P.2d 882 (concluding that the publicity,

even if inflammatory, was not so widespread as to generate a general belief about the

defendant’s guilt throughout the jury pool). Apart from such exceptional cases, however,

we have required the defendant to show that jurors selected from the community actually

could not set aside what they have heard or read in the media and decide the defendant’s

guilt impartially and based solely on the evidence admitted at trial. State v. Devlin, 2009

MT 18, ¶ 32, 349 Mont. 67, 201 P.3d 791. Voir dire, we have noted, is a primary method

of demonstrating that potential jurors have been so affected by pretrial publicity that they

would be unable to render a fair and impartial verdict. Devlin, ¶ 30. Cases reflecting this

requirement include Devlin, ¶¶ 30-34; State v. Bar-Jonah, 2004 MT 344, ¶¶ 83-89, 324

Mont. 278, 102 P.3d 1229; State v. Hill, 2000 MT 308, ¶¶ 54-55, 302 Mont. 415, 14 P.3d

1237; State v. Fuhrmann, 278 Mont. 396, 408-10, 925 P.2d 1162, 1170-71 (1996); State

v. Moore, 268 Mont. 20, 52-55, 885 P.2d 457, 477-79 (1994); State v. Miller, 231 Mont.

20
497, 505-07, 757 P.2d 1275, 1280-81 (1988); State v. Ritchson, 199 Mont. 51, 55, 647

P.2d 830, 832 (1982); State v. Armstrong, 189 Mont. 407, 422-23, 616 P.2d 341, 350

(1980); and State v. Williams, 185 Mont. 140, 145-46, 604 P.2d 1224, 1227-28 (1979).

Framework and Standard of Review

¶32 In light of the foregoing discussion of federal and Montana cases, we now clarify

the standards and procedures for analyzing the two different types of prejudice. As the

basis of a motion for change of venue, the defendant may allege presumed prejudice,

actual prejudice, or both. Where presumed prejudice is alleged—meaning that the court

is being asked to presume that jurors selected from the community cannot be impartial—

the bar is extremely high. The defendant must demonstrate that an irrepressibly hostile

attitude pervades the jury pool or that the complained-of publicity has effectively

displaced the judicial process and dictated the community’s opinion as to the defendant’s

guilt or innocence. Presumed prejudice, necessitating a change of venue, will be found

only in situations analogous to Rideau, Sheppard, Spotted Hawk, Dryman, and Coburn—

i.e., circumstances amounting to “a circus atmosphere or lynch mob mentality.” Where

such extreme circumstances are not present, and actual prejudice is alleged, the defendant

must show through voir dire or other means that the jury pool harbors actual partiality or

hostility against the defendant that cannot be laid aside. The same standards apply if the

prosecutor moves for a change of venue under § 46-13-203, MCA.

¶33 Furthermore, because media coverage may occur throughout the pretrial period

and the trial itself, and because new publicity may generate new concerns about the

defendant’s ability to receive a fair and impartial trial, a motion for change of venue may

21
be made or renewed at any point during the pretrial period, voir dire, or the trial, as

circumstances dictate. We have adopted a similar approach with respect to speedy trial

motions, explaining that such motions must be evaluated based on the facts existing at the

time the motion is decided and that if further delay or changed circumstances justify

reconsideration of the issue, then a renewed motion for a speedy trial must be made.

State v. Hendershot, 2009 MT 292, ¶¶ 30-32, 352 Mont. 271, 216 P.3d 754. Likewise, if

subsequent events raise new concerns regarding juror impartiality or the ability to receive

a fair trial in the current venue, then a renewed motion for change of venue or a post-trial

motion for a new trial may be filed. Correspondingly, on appeal, a party will not be

heard to complain that a trial court was wrong for refusing to grant a change of venue

based on publicity or concerns that arose after the request was made. See e.g. State v.

Brandon, 264 Mont. 231, 247, 870 P.2d 734, 743 (1994); cf. Hendershot, ¶ 32.

¶34 Lastly, it is necessary to address our standard of review. Kingman notes that since

territorial days, this Court has reviewed a trial court’s change-of-venue ruling for abuse

of discretion. See e.g. Territory v. Corbett, 3 Mont. 50, 57 (1877); Paisley, 204 Mont. at

194, 663 P.2d at 324; Devlin, ¶ 15. Kingman asks us to revise this standard where, as

here, the defendant alleges “presumed prejudice.” He argues in this regard, first, that the

standard of review under federal law is de novo where the motion is based on presumed

prejudice and, second, that we should adopt the same standard for purposes of Montana

law because a motion to change venue on account of prejudicial publicity is rooted in the

defendant’s constitutional rights to due process and a fair trial by an impartial jury.

22
¶35 We decline to adopt this approach. First, it is true that “[t]his Court cannot adopt a

lower standard to protect any right in the United States Constitution than the United

States Supreme Court has recognized.” State v. Lone Elk, 2005 MT 56, ¶ 20, 326 Mont.

214, 108 P.3d 500, overruled on other grounds, State v. Brinson, 2009 MT 200, ¶ 9, 351

Mont. 136, 210 P.3d 164; accord State v. Bentley, 156 Mont. 129, 134, 477 P.2d 345, 347

(1970) (“Montana cannot guarantee less protection for a citizen under its laws than is

demanded by the Constitution of the United States.”). Yet, contrary to Kingman’s

implication, there is no clearly established federal law—least of all by the Supreme

Court—holding that “de novo” review applies to claims of presumed prejudice.

¶36 In support of this proposition, Kingman cites McVeigh, 153 F.3d at 1179, where

the Tenth Circuit stated, on one hand, that it would undertake de novo review of whether

the complained-of publicity and the circumstances surrounding that publicity were “of

such a nature as to render impartiality impossible” (presumed prejudice), but, on the other

hand, that it would review for abuse of discretion “whether the seated jury could remain

impartial in the face of negative pretrial publicity” (actual prejudice). We note that the

Fifth Circuit stated the same dual standards in U.S. v. Skilling, 554 F.3d 529, 557-58 (5th

Cir. 2009) (“We review de novo whether presumed prejudice tainted a trial . . . . In

reviewing actual prejudice, however, we afford greater deference to the district court

. . . .”), vacated in part on other grounds, 130 S. Ct. 2896.

¶37 Notably, neither McVeigh nor the Fifth Circuit’s Skilling opinion provides a

satisfactory explanation for why a trial court is accorded greater deference in evaluating

actual prejudice than it is accorded in evaluating presumed prejudice. More importantly,

23
however, it appears that aside from these two cases, the federal courts of appeals

uniformly recite an “abuse of discretion” standard of review for both presumed prejudice

and actual prejudice. See U.S. v. Misla-Aldarondo, 478 F.3d 52, 58-59 (1st Cir. 2007);

U.S. v. Sabhnani, 599 F.3d 215, 232-34 (2d Cir. 2010); U.S. v. Inigo, 925 F.2d 641,

654-55 (3d Cir. 1991); U.S. v. Higgs, 353 F.3d 281, 307-09 (4th Cir. 2003); U.S. v.

Jamieson, 427 F.3d 394, 412-13 (6th Cir. 2005); U.S. v. Nettles, 476 F.3d 508, 513-15

(7th Cir. 2007); U.S. v. Rodriguez, 581 F.3d 775, 784-86 (8th Cir. 2009); U.S. v. Collins,

109 F.3d 1413, 1416 (9th Cir. 1997); U.S. v. Langford, 647 F.3d 1309, 1319, 1332-34

(11th Cir. 2011). It should also be noted that the Tenth Circuit’s and the Fifth Circuit’s

own precedents are inconsistent in requiring “de novo” review. Compare McVeigh, 153

F.3d at 1179, and Skilling, 554 F.3d at 557-58, with U.S. v. Abello-Silva, 948 F.2d 1168,

1176 (10th Cir. 1991) (acknowledging the two types of prejudice and then stating that

“[s]ince the decision to transfer venue is within the trial court’s discretion, we review for

an abuse of discretion”), and U.S. v. Asibor, 109 F.3d 1023, 1037 (5th Cir. 1997) (“We

review all questions concerning venue under the abuse of discretion standard. The trial

court is entitled to broad discretion in ruling on motions to transfer venue, and its

decision will be upheld absent an abuse of discretion.”).

¶38 Second, it is also true that the mechanism allowing the defendant to obtain a

change of venue is founded primarily on the principle that a defendant is constitutionally

entitled to a fair trial by an impartial jury. And it is well established that we review

questions of constitutional law de novo. State v. Stock, 2011 MT 131, ¶ 16, 361 Mont. 1,

256 P.3d 899; State v. Couture, 2010 MT 201, ¶ 47, 357 Mont. 398, 240 P.3d 987. “A

24
district court has no discretion in the correct interpretation of the Constitution.” State v.

Norquay, 2011 MT 34, ¶ 13, 359 Mont. 257, 248 P.3d 817. Hence, the question whether

the defendant ultimately received a fair trial in accordance with due process is still a

question over which we exercise plenary review.

¶39 However, in determining the more specific question whether, in light of extant

circumstances, such prejudice exists as to necessitate a change of venue, the trial court

must be afforded broad deference. Indeed, the nature of this determination simply does

not lend itself to de novo review on the cold record. As the Supreme Court has pointed

out, primary reliance on the judgment of the trial court makes especially good sense when

pretrial publicity is at issue, because the judge sits in the locale where the publicity is said

to have had its effect and may base her evaluation on her own perception of the depth and

extent of news stories that might influence a juror. Skilling, 130 S. Ct. at 2918. The

judge is also, we note, more intimately familiar with the defendant’s reputation, what the

local reaction to the crime has been, and the overall community sentiment. Conversely,

appellate courts making after-the-fact assessments of the media’s impact on jurors “lack

the on-the-spot comprehension of the situation possessed by trial judges.” Skilling, 130

S. Ct. at 2918. Not only is this true with respect to claims of presumed prejudice, it is

even more compelling in the context of alleged actual prejudice.

Reviewing courts are properly resistant to second-guessing the trial
judge’s estimation of a juror’s impartiality, for that judge’s appraisal is
ordinarily influenced by a host of factors impossible to capture fully in the
record—among them, the prospective juror’s inflection, sincerity,
demeanor, candor, body language, and apprehension of duty. In contrast to
the cold transcript received by the appellate court, the in-the-moment voir

25
 dire affords the trial court a more intimate and immediate basis for
assessing a venire member’s fitness for jury service.

Skilling, 130 S. Ct. at 2918 (citation omitted).

¶40 In short, the trial judge is uniquely positioned to assess whether a change of venue

is called for due to prejudice in the community. For this reason, and because there is no

clearly established law under the United States Constitution mandating “de novo” review

of “presumed prejudice” claims, we will continue to review for abuse of discretion a trial

court’s ruling on a motion for change of venue. We reiterate, though, that “in exercising

its discretion, the court is bound to uphold the defendant’s constitutional right to a trial by

an impartial jury.” Devlin, ¶ 15.

Analysis of Kingman’s Claim

¶41 Kingman filed his motion for change of venue during the pretrial period, based on

media coverage and community sentiment that existed as of late June 2009. The District

Court approved the jury questionnaire in August, held a hearing in September, and

rendered its decision on October 7, five weeks before trial commenced. By stipulation of

the parties, the court’s ruling was based on the responses to the questionnaires and on the

exhibits submitted by Kingman (recordings of KBZK television broadcasts, copies of

newspaper articles, census information, and circulation statistics for the Bozeman Daily

Chronicle). Kingman did not renew his motion for change of venue at the conclusion of

voir dire or during trial. He states on appeal that his motion is based on presumed

prejudice, not actual prejudice.

26
¶42 The Supreme Court’s decision in Skilling and our decisions in Spotted Hawk,

Dryman, and Coburn indicate that a variety of factors may bear on the question whether

prejudicial, inflammatory publicity about the case has so saturated the community as to

warrant a presumption that an impartial jury cannot be drawn therefrom. First, the size

and characteristics of the community in which the crime occurred are clearly relevant.

The larger and more diverse the jury pool, the more likely that 12 impartial individuals

can be empaneled from that pool. See Skilling, 130 S. Ct. at 2915. Second, community

sentiment is relevant. The more demonstrably enraged or inflamed the community is, the

less likely it will be to find jurors who can render a decision free from bias. See Spotted

Hawk, 22 Mont. at 53-55, 55 P. at 1031-32; Dryman, 127 Mont. at 586-89, 269 P.2d at

799-801; Coburn, 202 Mont. at 30, 655 P.2d at 507. A third factor is the nature of the

publicity—whether it is of the type that readers or viewers could not reasonably be

expected to shut from sight, and whether it invites prejudgment of the defendant’s

culpability. See Skilling, 130 S. Ct. at 2916; Dryman, 127 Mont. at 589, 269 P.2d at 801;

Coburn, 202 Mont. at 30-31, 655 P.2d at 507; see also Devlin, ¶ 24 (“ ‘Inflammatory’

publicity is publicity which, by its nature, has the tendency to stir up in the community

pervasive and strong passions of anger, hatred, indignation, revulsion, and upset such that

there are reasonable grounds to believe that jurors chosen from this community could not

determine the defendant’s guilt or innocence in a fair and unbiased manner and based

solely upon the evidence admitted at trial.”). Another relevant factor is the amount of

time that elapsed between the crime and the defendant’s trial, and whether community

passions diminished during that period. See Skilling, 130 S. Ct. at 2916; Dryman, 127

27
Mont. at 586-87, 269 P.2d at 799-800. Lastly, and of “prime significance” when

evaluating post-verdict whether prejudice existed, is the question whether jurors’ actions

ultimately ran counter to a presumption of prejudice—e.g., if they acquitted the defendant

of some of the charges. See Skilling, 130 S. Ct. at 2916 (Skilling’s jury acquitted him of

nine insider-trading counts); U.S. v. Arzola-Amaya, 867 F.2d 1504, 1514 (5th Cir. 1989)

(“The jury’s ability to discern a failure of proof of guilt of some of the alleged crimes

indicates a fair minded consideration of the issues and reinforces our belief and

conclusion that the media coverage did not lead to the deprivation of [the defendants’]

right to an impartial trial.”). This list identifies some, but not necessarily all, of the

factors pertinent to a “presumed prejudice” analysis.

¶43 In the present case, the District Court determined that the number of eligible jurors

in Gallatin County was 63,000, from which a representative sample of 150 was drawn.

The court observed that Kingman had been charged with a “serious” offense, but that

homicide charges “sadly are not a rare occurrence in Gallatin County recently.” The

court noted that the news articles and broadcasts presented by Kingman contained factual

accounts of the background of the case and various courtroom proceedings occurring

after Kingman’s arrest. While the reports spoke of the “brutality” of the injuries inflicted

on Overby, the court found that the information was not reported in an inflammatory

manner, that terms such as “allegations,” “accusations,” and “charges” were used, and

that the reports were not calculated to improperly sway public opinion against Kingman.

¶44 Nine of the ten articles provided by Kingman were from the Bozeman Daily

Chronicle; one article was from a monthly publication entitled The BoZone; and the nine

28
broadcasts were from local television station KBZK. Based on the statistics provided by

Kingman, the District Court estimated that roughly half of the households in Gallatin

County are exposed to the Chronicle on a daily basis. Furthermore, the KBZK news

report, in conjunction with the station’s sister affiliate in Butte, reaches approximately

100,000 viewers; however, the court had insufficient information to estimate how many

individuals eligible to serve as jurors in Gallatin County are exposed to KBZK news

reports daily. The court noted that six of the Chronicle articles and six of the KBZK

reports were printed/aired in the first 36 days following the incident, that the remaining

articles and broadcasts were printed/aired in late 2008 and early 2009, and that trial was

set for November 12, 2009.

¶45 Finally, as to ostensible adverse community reaction, the District Court rejected

Kingman’s argument that the fundraising efforts to assist Overby were indicative of, and

fostered, a community-held perception that Overby was an innocent victim and Kingman

was a brutal, unprovoked attacker. The court observed that Kingman had presented no

evidence in support of this contention. Turning to the juror questionnaires, the court

noted that 27 of the 150 respondents had marked “yes” to the question: “As a result of

what you have seen, heard, read or discussed about this case, have you formed an opinion

that would affect your ability to serve as a juror?” (As noted, 108 marked “no” and

15 left the question blank.) The court found this percentage of affirmative responses to

be insufficient to establish that Kingman could not receive a fair and impartial trial in

Gallatin County, particularly since the question provided no insight into what the juror’s

opinion was, why the juror believed that opinion would affect his or her ability to serve,

29
and whether the juror could lay that opinion aside and render a verdict based on the

evidence presented. The questionnaire also asked those respondents who had read, heard,

seen, or discussed the case to “please tell us everything you think you know about this

case, in as much detail as possible.” In response, some of the prospective jurors indicated

they had heard a great deal about the case, and they described what they knew using

terms that had been utilized in news reports, such as “attack,” “stabbed,” and “the victim

was injured and unconscious.” Kingman claimed these responses showed that numerous

jurors actually had formed an opinion about the case and about his guilt which affected

their ability to be impartial, even if they were not aware that they had formed such an

opinion. The District Court rejected this argument, however, observing that while 96 of

the 150 prospective jurors indicated they had read, seen, or heard something about the

case, 108 respondents indicated they had not formed an opinion that would affect their

ability to serve. The court refused to infer that mere knowledge of the case, even in some

detail, equates to prejudice against Kingman or a fixed opinion about his guilt.

¶46 For these reasons, the District Court concluded that Kingman had failed to show a

reasonable possibility that he could not receive a fair and impartial trial in Gallatin

County due to prejudicial pretrial publicity. Kingman disagrees with the court’s analysis

and argues that several factors mandate a finding of presumed prejudice.

¶47 First, Kingman contends that the circumstances of the fight, in which he inflicted

extensive injuries with his hands and then expressed pleasure about having done so,

would reasonably elicit revulsion and antipathy. He asserts that the news accounts used

evocative and emotional language to describe the events, emphasized the graphic details

30
of Overby’s injuries, and presented a “hackneyed narrative” in which Kingman was

portrayed as a “dangerous outsider” who disturbed the tranquility of a small community

by committing a “brutal,” “vicious,” and “savage” crime against an esteemed local.

Having reviewed the articles and broadcasts, however, we cannot agree that the media

reports were as slanted and inflammatory as Kingman suggests. Although the reports

describe a brutal and gruesome beating, the incident is not reported in a sensationalized

manner. The reports do not go beyond an objective dissemination of information, nor do

they inflame an already angry populace. Cf. Coburn, 202 Mont. at 30-31, 655 P.2d at

507. The reports do not take a position on Kingman’s guilt. Cf. Dryman, 127 Mont. at

582-83, 269 P.2d at 797-98. They use terms such as “allegations,” “accusations,” and

“charges.” Most of the complained-of reports were published or broadcast within the

first few weeks after the fight, over a year before Kingman’s trial. Notably, a subsequent

Chronicle article, dated May 28, 2009, reports Kingman’s side of the story and his claim

that Overby was the aggressor and Kingman acted in self-defense. While Kingman

speculates that the impact of the early publicity had not appreciably diminished by the

time of trial, we do not agree that this is a case like Dryman, where the impact of the

news items was still felt more than a year after they were published. See 127 Mont. at

586, 269 P.2d at 799 (opinion of the Court), 127 Mont. at 591, 269 P.2d at 802 (Anderson

& Angstman, JJ., dissenting). Contrary to Kingman’s characterizations, the September

and October 2008 media reports were not so provocative as to leave the Gallatin County

citizenry chomping at the bit for 13 months to exact retribution on Kingman.

31
¶48 Second, Kingman observes that his “dramatic confession” in the voicemail left for

Zane was reported in three newspaper articles and one television broadcast (all in late

September and early October 2008). He asserts that this is the type of information which,

like the videotaped confession in Rideau, readers and viewers could not reasonably be

expected to shut from sight. He also points out that even where the information reported

by the media is “factual” (as opposed to editorializing), it may still have a prejudicial

impact. He maintains that his “confession” was blatantly prejudicial.

¶49 It is true that “factual” information may create prejudice in the community. See

e.g. Dryman, 127 Mont. at 590, 269 P.2d at 801 (the “fact” that Dryman had pleaded

guilty was one of the main reasons that the widespread and deep-seated opinion in Toole

County was that he was guilty and should be hanged); Devlin, ¶ 22 (factual information

may be reported in an inflammatory manner, and the reporting of factual information may

be inflammatory in light of the particular circumstances). It is also true that exposing

prospective jurors to a defendant’s recorded “confession” raises concerns about whether

the jurors can shut out this information and judge the defendant impartially. Rideau, 373

U.S. at 726, 83 S. Ct. at 1419. We are not persuaded here, however, that the reporting of

Kingman’s voicemail message justifies presumed prejudice. It should be noted that the

message was not broadcast or printed repeatedly. One of the Chronicle articles cited by

Kingman does not quote from his message at all, and a second article purports to recite

information contained in “charging documents.” The third article, dated September 20,

2008, and the KBZK broadcast of the same date both report that the prosecution played

the voicemail message at Kingman’s bail hearing. The article quotes a significant portion

32
of what Kingman said, and the KBZK broadcast (a copy of which is contained in the

record) includes a somewhat indiscernible snippet of the message being played at the bail

hearing, with Kingman quoted as saying: “I was just like crack, crack, crack, crack on

this *******. I felt, oh god it felt so good. So good. Call me back when you get this.”

In Rideau, however, the Supreme Court emphasized the inherently prejudicial impact of

repeatedly viewing Rideau confess in detail during a 20-minute interrogation by the local

sheriff. 373 U.S. at 724, 83 S. Ct. at 1418. The Court stated that

it was a denial of due process of law to refuse the request for a change of
venue, after the people of Calcasieu Parish had been exposed repeatedly
and in depth to the spectacle of Rideau personally confessing in detail to
the crimes with which he was later to be charged. For anyone who has ever
watched television the conclusion cannot be avoided that this spectacle, to
the tens of thousands of people who saw and heard it, in a very real sense
was Rideau’s trial—at which he pleaded guilty to murder. Any subsequent
court proceedings in a community so pervasively exposed to such a
spectacle could be but a hollow formality.

Rideau, 373 U.S. at 726, 83 S. Ct. at 1419 (emphasis in original). Whereas the television

broadcasts of Rideau showed him admitting, under questioning by authorities, that he had

committed three crimes—hence the Supreme Court’s observation that this “in a very real

sense was Rideau’s trial”—the broadcast here involved an excerpt of a voicemail

message in which the speaker engaged in a drunken and “adrenaline-hyped” rant to a

friend. Thus, purely as a qualitative matter, the present case is distinguishable from

Rideau in that Kingman’s voicemail message cannot fairly be characterized as his “trial”

to those who heard it. But more importantly, his “confession” during the message was

not broadcast or printed “repeatedly and in depth.” In fact, it was broadcast briefly, and

only once, on television. Likewise, it was quoted only once in the newspaper (twice, if

33
one also considers the short quotations taken from “charging documents” in the second

article). Importantly, these instances occurred early on, and long before trial. On these

facts, we will not presume that the entire jury pool was prejudiced against Kingman.

¶50 Third, Kingman argues that the fundraising efforts for Overby are evidence that

the community was inflamed by the pretrial publicity. He quotes in part from Maine v.

Super. Ct. of Mendocino Co., 438 P.2d 372 (Cal. 1968), wherein the California Supreme

Court observed:

One of the victims, the girl, was discovered on a public road nearly
unconscious with bullet wounds about her neck and head. Her condition
was critical and several complicated operations were performed to save her
life. Local citizens immediately organized a fund to help the girl’s parents
defray the medical expenses, and the Ukiah Daily Journal, the local
newspaper, urged every citizen to contribute. It is no small measure of the
community’s laudable warmth and generosity that a substantial sum was
quickly raised, mostly in modest contributions. We do not hold it to be an
invariable rule that sympathy for a victim demonstrates antipathy to the
alleged perpetrators of an offense. But such pervasive civic involvement in
the fate of a victim, particularly when the events all transpire in a relatively
small community, is a strong indication that the venue should be changed.

Maine, 438 P.2d at 378-79 (footnote omitted). In the present case, Overby’s friends

placed donation jars in several local bars and at Poor Richard’s News on Main Street, set

up a fund at Big Sky Western Bank, and organized a benefit in Big Sky that raised

$5,800. As Kingman notes, these fundraising activities are a tribute to the kindness and

generosity of the people of Gallatin County. Kingman has not shown, however, that they

constitute such “pervasive civic involvement” in Overby’s fate as to justify a presumption

of communitywide antipathy toward Kingman. There is no evidence that the media or

Overby’s friends “urged every citizen to contribute.” In fact, Kingman has produced no

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evidence as to how many individuals provided contributions and how much of the

community was involved in the fundraising. It bears repeating that “a motion for change

of venue requires . . . fact-specific proof by the moving party.” Devlin, ¶ 30.

¶51 Lastly, Kingman argues that the publicity’s pervasiveness and prejudicial effect is

evidenced by the 27 questionnaire respondents who marked that, as a result of what they

had seen, read, heard, or discussed about the case, they had formed an opinion that would

affect their ability to serve as jurors. He also posits that the 96 respondents who indicated

that they had seen, read, or heard something about the case “could be predisposed toward

conviction.” Regarding this latter point, he asserts that “social science has repeatedly

correlated potential jurors’ exposure to pretrial publicity and prejudgment of criminal

defendants.”3 Even if such a correlation exists, however, it does not justify presuming in

this case that Kingman could not obtain an unbiased jury in Gallatin County. Showing

that some of the potential jurors know about the case does not suffice to demonstrate that

an irrepressibly hostile attitude pervaded the community. See Stafford, 34 F.3d at 1567.

Moreover, Kingman reads way more into the questionnaire responses than is warranted.

Nearly a third of the respondents indicated that they had not seen, read, or heard anything

about the case, and nearly three-quarters of the respondents indicated that they had not

formed an opinion that would affect their ability to serve as jurors. These numbers belie

a presumption that the entire jury pool was corrupted by anti-Kingman press coverage.

Even with regard to the 27 persons who indicated that they had formed an opinion, this

3
For this proposition, Kingman cites Christina A. Studebaker and Steven D.
Penrod, Pretrial Publicity: The Media, the Law, and Common Sense, 3 Psychol., Pub.
Policy and L. 428, 434-35 (1997).

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question is not very useful in assessing prejudice. As the District Court noted, the

question provides no insight into what the juror’s opinion was, why the juror believed

that opinion would affect his or her ability to serve, and whether the juror could lay that

opinion aside and render a verdict based on the evidence presented. As we have pointed

out before, it is not required that jurors be totally ignorant of the facts and issues or that

jurors be without any impression or opinion as to the merits of the case. Indeed, the mere

existence of a preconceived notion as to the accused’s guilt or innocence, without more,

is insufficient to rebut the presumption of a prospective juror’s impartiality. The relevant

question is whether the juror can lay aside his or her impression or opinion and render a

verdict based on the evidence presented in court. Devlin, ¶ 32. The questionnaire

responses here do not show that the jury pool was firmly predisposed to convict

Kingman.

¶52 Kingman raises a few other considerations, none of which merits discussion. In

light of all the facts and circumstances discussed above, we hold under the United States

Constitution and the Montana Constitution that the District Court did not abuse its

discretion in denying Kingman’s motion to change venue based on presumed prejudice.

Kingman’s evidence of pretrial publicity and community sentiment does not even come

close to meeting the high standard necessary to establish such prejudice. There is no

indication that the Gallatin County populace was incensed. Nor is there any evidence of

“a circus atmosphere or lynch mob mentality” directed at Kingman. He has not shown

that an irrepressibly hostile attitude pervaded the jury pool. More to the point, he has not

demonstrated that the complained-of publicity effectively displaced the judicial process

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and dictated the community’s opinion as to his guilt or innocence. Indeed, Kingman’s

claim of presumed prejudice is substantially refuted by the fact that he ultimately was

acquitted of the more serious charge of attempted deliberate homicide and convicted

instead of the lesser included offense of aggravated assault. “It would be odd for an

appellate court to presume prejudice in a case in which jurors’ actions run counter to that

presumption.” Skilling, 130 S. Ct. at 2916.

¶53 Issue 2. Whether Kingman’s right of dignity under Article II, Section 4 of the
Montana Constitution was violated by the prosecutor’s arguments during
sentencing.

¶54 At the sentencing hearing, the prosecutor recommended the maximum sentence of

20 years imprisonment. As justification, he pointed to the “savage nature” of the beating,

the severity of the injuries suffered by Overby, Kingman’s “animalistic voice” describing

in the voicemail message how much joy and satisfaction he felt, and the fact that the next

morning Kingman asked the physician who attended to his injured hand (and who later

testified at trial) “whether he would be able to punch again.” The prosecutor also cited

Kingman’s criminal history, the violent nature of some of his past offenses, his failure to

comply with the terms and conditions of his previous probation, and the need to protect

the public. Finally, the prosecutor discussed the psychological evaluations of Kingman,

which found that he had problems with anger and impulse control, especially when under

the influence of alcohol or drugs. Then, to sum up his argument, the prosecutor stated:

The basis for this recommendation is very simple, and it’s based
upon a very simple concept. Some animals need to be caged. Some
creatures are so dangerous that society can’t risk them being amongst us.
What Mr. Kingman did in September of 2008 is inhuman. No one does
that. He does not need to be treated with any sort of respect or admiration.

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 When he’s over at the Detention Center acting up, pounding on walls,
breaking sprinkler heads,4 he’s acting as the State has just characterized
him—as a caged animal. And that’s where he needs to be.

¶55 Defense counsel, as noted, took issue with the prosecutor’s characterizations. He

argued that it is downright offensive and wrong to label anyone as “an animal that needs

to be locked up in a cage.” Counsel noted that “[p]eople in this country are afforded at

least some measure of human dignity. And regardless of what they’ve done, . . . they’re

still people.” Counsel then argued for less than the maximum sentence in light of the fact

that Kingman initially had attempted to walk away from the altercation with Overby but

Overby continued to provoke and shove Kingman from behind. Counsel asserted that

“this is not a case of Mr. Kingman walking down the street and randomly attacking

someone. This is a case of self-defense gone too far.” Counsel then went on to discuss

Kingman’s difficult family background, his problems with chemical dependency, and the

findings in the psychological reports that his personality disorders are treatable. Counsel

argued that Kingman’s potential to be a productive member of society would be wasted if

he were given the maximum sentence. Counsel recommended five years. Kingman then

gave a statement in which he apologized to Overby and Overby’s family.

¶56 In pronouncing sentence, the District Court acknowledged Kingman’s personality

disorders and the positive prognosis for rehabilitation. The court also noted Kingman’s

willingness to take responsibility for his actions and his honest expressions of remorse for

what he had done. Nevertheless, the court imposed the maximum sentence of 20 years at

4
There was testimony earlier in the hearing that Kingman had punched and kicked
cell doors, broken a sprinkler head, and pushed a guard at the Detention Center.

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Montana State Prison. In so doing, the court explained that none of the factors identified

by Kingman and his counsel mitigated his culpability. “The circumstances of this crime

are outrageous; they’re aggravated; they are intolerable. They cannot be mitigated or

explained by the defendant’s social history or excused by his use or abuse of alcohol and

drugs.” The court observed that Kingman’s “actions were deliberate. He did not walk

away when he could have. He totally lost control of himself, and he continued to beat

Mr. Overby after he was down on the ground.” Moreover, after the attack, Kingman

“was not horrified by what he had done or how he had responded. Instead, he was

thrilled with the effect of what he did and how he continued to beat Paul Overby like

‘Rocky punching wet meat.’ ” The court also factored into its consideration the severity

of the injuries inflicted by Kingman and his “significant criminal history” involving

violence and anger mixed with drug and alcohol abuse. In addition, the court noted

Kingman’s repeated failure to comply with the terms and conditions of his previous

probation and his instances of misconduct and property damage while incarcerated on the

current offense. The court found that Kingman “cannot currently function in the

community,” he “is a danger to any community in which he stays with his anger

uncontrolled and his alcohol and drug abuse unchecked,” and he “requires long-term

incarceration to protect” the victim and society.

¶57 Kingman contends on appeal that in order to secure the maximum sentence, the

prosecutor “dehumanized” Kingman by referring to him as an “animal” that “needs to be

caged.” Kingman contends that this violated his right to human dignity under Article II,

Section 4 of the Montana Constitution, which states: “The dignity of the human being is

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inviolable. . . .” Kingman requests that we vacate his sentence and remand his case for

resentencing before a different judge.

¶58 At the outset, certain of the prosecutor’s remarks at the sentencing hearing clearly

pushed the bounds of proper argument. The prosecutor’s statement that Kingman “does

not need to be treated with any sort of respect” is both wrong and inappropriate, and we

categorically reject it. Moreover, the prosecutor’s suggestion that the court ought to view

Kingman as an “animal” needing to be “caged” is likewise inappropriate. As we have

recognized, treatment which degrades or demeans persons, that is, treatment which

deliberately reduces the value of persons, and which fails to acknowledge their worth as

persons, directly violates their dignity. Walker v. State, 2003 MT 134, ¶ 81, 316 Mont.

103, 68 P.3d 872. “ ‘The reformation and prevention functions of punishment both

express the community’s disrespect for the actions of the criminal, but the processes of

punishment must never disrespect the core humanity of the prisoner.’ ” Walker, ¶ 81

(emphases added) (quoting Matthew O. Clifford & Thomas P. Huff, Some Thoughts on

the Meaning and Scope of the Montana Constitution’s “Dignity” Clause with Possible

Applications, 61 Mont. L. Rev. 301, 331 (2000)). These principles apply no less to the

proceeding in which the appropriate punishment is determined, and argument which, in

that context, deliberately reduces the value of the convicted defendant or disrespects the

defendant’s core humanity is improper.

¶59 That being said, we cannot agree with Kingman’s premise that the prosecutor’s

remarks—“offensive” as they may have been—actually played any part in the District

Court’s decision to impose the maximum sentence. For one thing, defense counsel made

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a point of arguing to the court that it could not sentence Kingman based on the notion that

he is an “animal.” Furthermore, in reviewing the prosecutor’s recommendation, the court

did not even acknowledge the “animal” remarks. The court observed:

Chief Deputy County Attorney Whipple has argued that the case has to be
considered under its own facts and circumstances, that this defendant is a
dangerous individual, who has spent a number of years in and out of prison
in California; who has a history of anger issues and severe drug and alcohol
abuse and committed this crime while extremely intoxicated, that he has
continued to act out in anger even while participating in counseling and
receiving medication for his mental health issues. The State feels that it is
imperative that he not have an opportunity to hurt anyone else. [Emphases
added.]

Finally, the court’s articulated reasons make it clear that the court based Kingman’s

sentence on the “heinous” and “outrageous” nature of the offense, the severity of the

injuries inflicted on Overby, Kingman’s initial “thrill” over what he had done, his

criminal history, his pattern of violence and anger mixed with drug and alcohol abuse,

and the danger that he posed to the community. These are all valid considerations when

sentencing. See § 46-18-101, MCA; State v. Rosling, 2008 MT 62, ¶ 72, 342 Mont. 1,

180 P.3d 1102 (a sentencing court may consider evidence relating to the crime, the

defendant’s character, background history, mental and physical condition, and any other

evidence the court considers to have probative force).

¶60 Kingman notes in his opening brief that he “claims no improper action on the part

of the district court in regard to his sentencing.” His claim, therefore, appears to be that

when a prosecutor makes improper argument at sentencing, the defendant is entitled to be

resentenced (by a different judge) even though the prosecutor’s remarks had no influence

on the trial court’s decision to impose the concededly legal sentence that the defendant

41
received. It is questionable whether such a rule would serve any remedial purpose. But,

in any event, we decline to adopt this rule in the circumstances presented here.

CONCLUSION

¶61 The District Court did not abuse its discretion in denying Kingman’s motion for

change of venue. Furthermore, Kingman is not entitled to be resentenced based on his

dignity claim.

¶62 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE

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