State v. Kirkland

• Decision Date: 30 November 1979
• Docket Number: No. 14443,14443
• Parties: STATE of Montana, Plaintiff and Respondent, v. Prentiss N. KIRKLAND, Defendant and Appellant.
• Court: Montana Supreme Court

Page 586

602 P.2d 586

184 Mont. 229

STATE of Montana, Plaintiff and Respondent, v. Prentiss N. KIRKLAND, Defendant and Appellant.

No. 14443.

Supreme Court of Montana.

Submitted Sept. 11, 1979.

Decided Nov. 7, 1979.

Rehearing Denied Nov. 30, 1979.

Lee Overfelt, Billings, Gary D. Overfelt argued, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Sheri K. Sprigg argued, Asst. Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant was convicted of aggravated assault following a jury trial in the District Court of Yellowstone County and sentenced to 30 years imprisonment without parole as a persistent felony offender. He appeals from the judgment of conviction, the sentence imposed, and denial of a new trial.

In the months preceding February, 1978, defendant Prentiss N. Kirkland had received several threats on his life. In December, 1976, his pickup truck was blown up by persons unknown. On February 12, 1978, he and Mary Gunsch were in the Squire Lounge in Billings, Montana when he received an anonymous phone call threatening to blow up his trailer house.

Later the same evening defendant and Ms. Gunsch drove to downtown Billings where they parted company. Defendant then entered the Royal Flush Lounge in the Custer Hotel where he sought out Charles Sparboe. Defendant asked Sparboe if they could talk and Sparboe assented.

There is a conflict concerning what occurred thereafter. According to defendant, he sat down opposite Sparboe and began discussing the threats he had received and the possibility of Sparboe acting as an intermediary. At some time during the conversation, defendant removed a gun from his coat and slammed it on the table to emphasize a point he was making. The gun discharged with the bullet striking Sparboe in the chest. Witness Betty Jean Baumgartner testified that both defendant and Sparboe were seated at the time of the shooting.

According to the victim Sparboe, he sat down while defendant remained standing. Without further conversation, defendant pulled a gun and shot him in the chest.

Thereafter defendant ran from the lounge and was apprehended about a block from the Hotel by Billings police.

On February 17, 1978, defendant was charged with attempted deliberate homicide. He retained his own counsel and plead not guilty.

On April 14 defendant filed a motion to change the place of trial alleging there had been an attempt by certain parties in the community to brand him as a paid assassin. On April 17 defendant moved that the weapon be produced for inspection; that the information be stricken because the attempt statute was unconstitutional in providing for a death penalty; and for a continuance of the trial on the grounds of lack of time and money to interview witnesses and lack of time to examine the weapon.

On April 17, the District Court denied the motion for continuance. On April 18 the District Court denied the motion to strike the information, denied the motion to change the place of trial pending jury selection, and noted that the record showed the prosecution's willingness to cooperate in the defendant's examination, inspection and testing of the weapon. On the same day the District Court granted the prosecution's motion to prevent the defense from suggesting to the jury that the death sentence was a possible punishment.

On the morning of April 18, the jury was empanelled and sworn. That afternoon the trial started. The jury was admonished not to form any opinion until they heard the entire case and not to talk about the case or allow anyone else to talk about it to them. No mention was made at this time about newspaper, radio or television news releases.

On April 21 during the course of trial, defense counsel moved that the jury be questioned concerning their exposure to telecasts from Billings television stations branding defendant as a hired killer. The presiding judge denied the motion stating that the voir dire examination of prospective jurors on the morning of April 18 had covered the telecast of April 17 and that the jury had been admonished on the 18th not to read newspapers or listen to news accounts of the trial.

On April 24 defendant moved for a mistrial based on the news releases. The motion was denied. The same day both parties rested their case. The following day the jury returned a verdict convicting defendant of the lesser included offense of aggravated assault, a felony. Following denial of defendant's motion for a new trial, the District Court found defendant to be a persistent felony offender and sentenced him to 30 years in the State Prison without the possibility of parole or prisoner furlough.

Defendant appeals advancing seven specifications of error:

1. Denial of his motion to strike the information.

2. Denial of his motion for a continuance of the trial.

3. Denial of his right to question prospective jurors on the death penalty.

4. Denial of interrogation of jurors concerning their exposure to prejudicial news releases.

5. Errors in jury instructions.

6. Denial of a new trial.

7. Error in the sentence imposed.

Defendant contends that his motion to strike the information should have been granted because (1) the information failed to recite the code provision on deliberate homicide, and (2) the statute on attempt provides a possible death penalty in violation of constitutional prohibitions against cruel and unusual punishment.

Here the information charged defendant with attempted deliberate homicide. It specifically cited the attempt statute but did not cite the deliberate homicide statute. The applicable statute requires the charge to state the name of the offense and to cite "in customary form the statute, rule, or other provision of law which the defendant is alleged to have violated." Section 46-11-401(c), MCA.

Defendant's attack fails on two grounds. First, his motion to strike the information was untimely. The motion must be made before a plea is entered subject to an exception not applicable to this case. Section 46-13-103, MCA. Here the motion was made two months after entry of defendant's plea.

Secondly, the motion was properly denied on the merits. The test to be applied is "Would a person of common understanding know what is intended to be charged?" State v. Dunn (1970), 155 Mont. 319, 327, 472 P.2d 288, 294. Here the information stated the crime charged, attempted deliberate homicide, and cited the attempt statute, section 45-4-103, MCA. Failure to specifically cite the deliberate homicide statute could not have deprived a person of common understanding of the crime charged particularly where he was represented by able and experienced counsel.

Defendant further contends that the information should have been stricken because a person convicted of attempted deliberate homicide may be sentenced to death under sections 45-4-103(3) and 45-5-102, MCA. He contends this constitutes cruel and unusual punishment in violation of Federal and State constitutional prohibitions.

His contention fails as he was neither convicted of attempted deliberate homicide nor sentenced to death. A defendant cannot question provisions of an act which do not apply to his case. State v. Johnson (1926), 75 Mont. 240, 259, 243 P. 1073. One who in neither injured nor jeopardized by the operation of a statute cannot challenge its constitutionality. State ex rel. City of Wolf Point v. McFarland (1927), 78 Mont. 156, 162, 252 P. 805. Since the trial of this case, we have further affirmed this principle in State v. Booke (1978) Mont., 583 P.2d 405, 35 St.Rep. 1249, and State v. Azure (1979) Mont., 591 P.2d 1125, 36 St.Rep. 514, 521.

Defendant next contends that it was reversible error to deny his motion for a continuance of his trial. The gist of his argument is that he was thus deprived of due process and the right to effective assistance of counsel because he lacked time and money to investigate the facts surrounding the alleged crime and to examine and test the alleged weapon.

Defendant was incarcerated throughout the pretrial period. His motion for a continuance was made and denied on April 17, the day before trial. The gun allegedly involved in the shooting was returned to the prosecution on April 14 from the FBI laboratory. The prosecution furnished defendant's counsel a list of its witnesses, their proposed testimony, and cooperated with defense counsel in making the weapon available for inspection and testing after it was received back from the FBI laboratory.

The question of whether denial of a motion for continuance is reversible error was addressed four years ago by this Court and the following principles emerged:

"Motions for continuance are addressed to the discretion of the trial court and the granting of a continuance has never been a matter of right. (Citation omitted.) The district court cannot be overturned on appeal in absence of a showing of prejudice to the movant. (Citation omitted.)

"Defendant's argument therefore must stand or fall on the issue of prejudice, for the district court can be said to have abused its discretion only if its ruling was prejudicial. We have not found a single case . . . in which the denial of a motion for continuance was reversed without a showing of resulting prejudice to the movant." State v. Paulson (1975), 167 Mont. 310, 538 P.2d 339.

Defendant's claim of lack of time to investigate the facts surrounding the alleged crime has a hollow ring. Two months elapsed between entry of defendant's plea and his motion for a continuance. The prosecution furnished him a list of its witnesses and their statements. Defendant states that there is sufficient conflict and vagueness in some of the statements to warrant an independent investigation and interview. What conflict? What vagueness? What witnesses? The record is barren. Defendant also claimed lack of funds to hire an investigator until shortly before trial. Yet...