State v. Kingman

Decision Date01 November 2011
Docket NumberNo. DA 10–0260.,DA 10–0260.
PartiesSTATE of Montana, Plaintiff and Appellee,v.Miles Cassidy KINGMAN, Defendant and Appellant.
CourtMontana Supreme Court

OPINION TEXT STARTS HERE

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.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 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 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- - -ing 1 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, 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.

¶ 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...

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