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 Cour t 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 November 1 20112

Justice James C. Nelson delivered the Opinion of the Court. ¶1 Miles Cassidy Kingman appeals his conv iction and sentence rendered in the Eig hteenth Judicial District Court, Gallatin County. Heraises two issues on appeal: 1. Whether Kingman’s motion to change venue should have been g ranted on the basis of “presumed prejudice ” re sulting from pretrial publicity. 2
. Wh ether Kingman’s right of dignity under Article II, Section 4 of the Montana Constitution was violated by the prosecutor’s argumentsduring sentencing. We affirm as to both issues
. **BACKGROUND** ¶2 Kingman and his friend, Ryan Dibert, went out drinking at a numb er 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 around1 : 15 a .m., Dibert noticed a motor scooter in the parking lotbehind the bar. Dibert jumped on thescooter 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
. O verby toldD ibert and Kingman to leave the scooter alone
. Dibert apologized and go t of f 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 “g

et the hell out of here.” Dibertand Kingman , in turn , proceeded to arg ue back. The interaction escal ated and caught the attention of two p assersby, who observedO verby, Dibert, and Kingman shouting, ge sturing, and posturing. Kingman
ev entually g rabbed Dibert and they began to walk away, but Overby followed , insulting and threatening

them. Overby shovedKingman several times and hit Kingman once, at3

which point Kingman turned and punchedOverby. One of the bystander s , who testified at trial , heard Overby state: “Is that all you got?” Overby then turned around and started to walk back towardthe Scoop, at which point Kingman struck Overby on the sideof the head
. This appeared to stun Overby. Kingman hit Overby again, which caused Overby to fall to the g

round. At that poin

t, 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, manyt imes ov

er and over and over again.”O verby, meanwhile, just lay there, not responding at all. Oneo f the bystanders yelled at Kingman to stop. Kingman then got off Overby , but Dibert decided to deliver a few “ending blows” and kickedOv erby three to fivetimes
. Dibert and Kingman then fled the scene. ¶4 Witnesses approach edOverby, who was lying on the g round unconscious. His face was unrecognizable. I t was covered in blood and one of hiseyes 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 roll ed Overby on his sidet o allow the blood to flow out of his mouth
. A nother 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 compressio ns, and Overby eventually started to breatheagain, al though he still gaspedand gurgled . M edical personnel soon arrived, took over Overby’ s care, and transported him to the hospital. ¶5 Overby su ffered extensive fractures to the v ast majority of the bones in his face. Not only werethe bones fractured, they had been “pushed back”

— meaning that while the4

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 av ailable 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 rehab ilitation
. ¶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 gashon his hand which would not stop bleeding
. Lacking first aid supplies, h e decided to g o to the home of his friends Zane and Josette in Belgrade to get his hand stitched up. Kingman later explained at trialt

hat Zane and Josette were “ like fa mily”t o him. Also, he and Zane were “big fans of UFC boxing and contact sports.
. . . [I]f one of u s 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. C all me b ack, dude. I b eat this guy to death. I, there’s blood all over the house. In fact , both of my legs have splatters of blood on them. A

nd my right hand, it ’ s split so f
- -- ing 1 g narly bad like thank god I’m drunk cause it would hurt horrible. I can’t even wash it out it hurts so bad. But ohm y g od , dude. Wait til lyou see my shoes and my pants. I kicked the f

-- -o utta this guy, dude. I j ust stood over him like f
--- ing Chuck Lid dell getting knocked out. J ust one, two, one, one, one, 1 To av oid the g ratuit ous recitation of expletives, Kingman’s repeated and v aried usages of the word “fuck” have been abbreviated, as indicated. The message is otherwise quoted verbatim from the audio recording contained in the record.5

two. Just splatters all over both my pants. I’m never washing them ag ain , dude. Yeah. Two knockouts in one night. I, ohm y god dude. This guy’s got brain damage. Ohm y 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 hasf

-- - ing got blood sp l atters 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 . A sk Ryan , dude , I just f
-- - ing, it sounded like I was like Rocky punching wet meat on this mother. Ev erybody, a hundredpeople around , “S top 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 goo d. S o good. C all me back when you get this. B eep, beep, beep. I don’t care how late. It’s so good . B eep, 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 f riend 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 Zaneand 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 ev

asive when Katelin inquired about what had happened. She found his explanations implausible and the whole situation “shocking,” “creepy,” and “suspicious
. ” A fter dropping Kingman and Dibert off in Belgrade , Katelin contactedthe police
. ¶8 Kingman was arrested later thatmorning ( September 17 , 2008 ) , and the State charged him October 3 with attempted deliberate homicide. The State also charged Dibert with attempted deliberate homicide
. Th e District Court initially set Kingman’s trial for late July 2009 ; howev er, pursuant to a defense motion, the court continued the trial to November 12, 2009. A three
- day jury trial commenced on that date.6

¶9 In the interim, l ocal media

— newspaper, television, and radio

— reported on the altercation behind the Scoop and subsequent developmentsrelated to the charges filed ag ainst Kingmanand Dibert . Most of thiscov erage occurred during the first three weeks following the incident , though there was some sporadicc overage in late 2008 and the first half of 2009 a s well
. In addition to the news media publicity reg arding the case, variousf undraising activities occurred in the Gallatin County area on Overby’s behalf. His friends placed donation jars in several loc al 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
ma jority 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 statementsin 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 prosecutionand Kingman stipulated to a jury questionnaire , w hich was7

ma iled 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 th e

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 C ourt attached a cover letter directing the prospectivejurors , 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 rel ating to the case. All 150 prospective jurors returned their questionnaires. Onthe question whether the juror had seen, read, or heard anything about the case , 96 marked“yes , ”4 7 ma rked“no,” 3 left the question blank, and 4 indicated they were unsure whether they knew of the case. As tot he 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 ag reed 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 n ewspaper articles, c ensus information, and circulation statistics for the Bozeman Daily Chronicle). Kingman and the prosecution presented arg uments 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 the8

prospective jurors could not set aside what they had heard or read inthe media and decide his guiltimpartially and based s olely 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 re acted in self
- defense. Ul timately, the jury acquitted him of attempted deliberate homicidebut 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 need edto be “ caged.”In response, defense counsel argued that this was an offensive and inappropriate argumentand that allpersons, even those convicted of crimes, are still afforded “at least some measure of human dignity .” ¶14 The D istrict Court sentenced Kingman to the Montana State Prison for 20 years, with none of that time suspended. The court also imposedrestitutio n in the amount of $183,115.43 and ordered Kingman to register as a violent offender. Kingman now appeals. Additional facts areset 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 assertshis 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 separatea nalysesin this reg

ard

—one under the9

federal Constitution and the other under the Montana Constitution

— we conclude, for the
reasons which follow , that the framework for analyzing chang e - of
- venue motions isthe
sameunder both documents . 2 In reaching this conclusion, we reconcile our approach with that followed by the federal courts so as to facilitate consisten cy in theanalysis.

**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 . Section s46
- 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 c ounty or district in which the offense isalleg ed to have been committed)
. A nalogously, a federal prosecution occurs in the state and district where the crime was c ommitted. 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, Section s 17 and 24 secure to the defendant the right to a “fair trial” by an “impartialj ury. ” 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 provisio n 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

v enue is mandated by Montanal aw although the same is not required by federal law. But the present case is not such a case.10

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 defenseor 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 e

nsure that a fair trial may be had. Section 46
- 13
- 203, MCA
. S imilarly, 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.” F ed. 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 diff erent 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 willprev ent a fair and impartial trial in the currentv

enue . There are various forms theprejudice mighttake

—such as a community uproar or too many people in the community with close ties to the v ictim

— 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. LaFav e et al., Criminal Procedurev

ol. 4, § 16.3(b), 806 (3d ed., Thomson/West 2007). In this regard , Kingmanpoints out that prejudice may be “presumed” in certain circumstances. Indeed, as explained below, a motion for change of venue ma y be founded on presumed prejudice
or onactual prejudice , and different standards apply depending on which sort of prejudice11

is claimed . This distinction is recognized explicitly in federal caselaw but, until now, has been essentially implicit in our own cases .

**Presumed Pre**

**judice 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 ev idence and arg

ument in open court, and not by any outside influence, whether of private talk or p ublic 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 chang e of venue, by two methods: h e can demonstrate that the jury pool is actuallyp rejudiced ag ainst him, or he can demonstrate that juror prejudice should be presumed f rom 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 perv asive 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, 11 81 (1st Cir. 1990) (prejudicial, inflammatory publicity about the case has so saturated the community as to render it virtually impossible to12

obtain an impartial jury) ; U.S. v. Campa , 459 F.3d 1121, 1150 (11th Cir. 2006) (en banc) (prejudicial publicity ha s saturatedthe 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 s ensational 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 ov er the local telev

ision station, resulting in a “kangaroo court” which derailed due process and quashed any hope of a fa ir 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 conf essing 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 me mbers 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, perv asive and prejudicial publicity” that occurred before and during Sheppard’s trial on the charge of m urdering his wife
. Not only wasthe case made “notorious” by the “virulent publicity” about13

Sheppard andt

he 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 n ewsmen taking ov er practically the entirec ourtroom and hounding most of the participants in the trial, especially Sheppard. Sheppard, 384 U.S. at 353
- 55, 358, 86 S. Ct. at 15 17
- 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 (196 5) (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 “presumedprejudice ” isthat “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 P atton 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 g eneral atmosphere in the community or courtroom is sufficiently inflammatory.” (citation sand internal quotation marks om itted)) ; U.S. v. Abello

-Silva , 948 F.2d 1168 , 1176
-77 (10th Cir. 1991) (“In rare cases, the community is14

so predisposed that prejudice can be presumed, and venue must be transferred as a matter of law.”) ; LaFave et al. , Criminal Procedurev ol. 6, § 23.2(a), 264 (“[P]rejudicial publicity ma y be so in flammatory and so pervasive that the voir dire simply cannot be trusted to fully reveal the likely prejudice among prospective jurors.”)
. Th e principle of presumed prejudiceis “rarely applicable ” and is reserved for “extreme situation s.” 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 t o prove presumed prejudice is , correspondingly, “extremely hig

h.” 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 gu ilt or innocence.” Abello

-Silva , 948 F.2d at 1176. I t likewise has been said that prejudice cannot be presumed unless the trial atmosphere has been “utterly corrupted by press cov

erage.” Campa , 459 F.3d at 1144 (internal quotation marks omitted). Circumstances amount ing to “ acircus 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 rev iewing court

“must find that the publicity in essence displaced the judicial process, th ereby denying the defendant his constitutional right to a fair trial.” McVeigh , 153 F.3d at 118 1
.15

¶25 Where circumstances are not so extreme as to warrant a presumption of prejudice , the defendant may claim “ actual prejudice
. ”Actual prejudice exists when vo ir dire
rev eals 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 rev eals that thee ffect of pretrial publicity is so substantial as to taint the entire jury pool )
. The voir dire testimony and the record of publicity must rev eal “the kind of wav

e of public passion ”tha

t would make a fa ir trial unlikely by a jury em paneled 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 10 35 , 104 S. Ct. at 289 1
. “Impartiality does not mean jurors are totally ignorant of the case. I ndeed, it is difficult to imagine how an intelligent venireman could be completely uninformed of significant ev ents 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 resolvedthe question of prejudice ina 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
wascharged with aggravated kidnapping and sexual interc ourse without consent. B ail initially was set at $100,000, but the district court reduced it to $15,000, which Coburn16

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. I n addition, some articles gave quoted statements by the sheriff, the c ounty attorney, and a d eputy c ounty attorney that were prejudicial to the defendant. Coburn , 202 Mont. at 22
- 30 , 655 P.2d at 503
- 0 7 . On several occasions, the newspaper went beyond an objective dissemination of information.

“ Instead of calming an enraged community and prov iding an atmosphere in which the processes of justice could g o f orward without

bias, the [newspaper] inflamed an already angry populace.” Coburn , 202 Mont. at 30
- 31, 655 P.2d at 507. ¶28 When the distric t court denied his motion for change of venue, Coburn filed a petition for a writ of supervisory control . Appearing on behalf of the respondent j udge , the prosecutor argued that voir dire is the proper time to determine whether prejudice ag ainst Coburn still existed. We disagreed. Citing federal caselaw, we explained: While the determination of whether widespread prejudice prohibits s election of an impartial jury is usually made during vo ir 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 chang

e of venue ma y be decided prior to voir dire if the circumstances of the case indicate inherent prejudice. E ffective and economic judicial administration is not well served by calling an inordinate and unwieldy number of veniremen to see if an unbiased jury mightb e obtained, especially when it is already apparent that a substantial chance of intolerable prejudice exists.17

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, 6 63 P.2d 322, 324 (1983) (finding voir dire unnecessary giventhe extensive and inflammatory media cov erage 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 ev en to himself. ” Coburn , 202 Mont. at 33, 655 P.2d at 508. I n 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 motionto 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 identifiedby Spotted Hawk : people in the county believed the Cheyenne Indianshadkilled Hoover ; thus, roughly 200 armed cowboys and ranchmen had gathered near the Cheyenne Indian Agency intending either to force the murderer s ’ 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 denoun ced the Indiansand u nduly excitedthe inhabitantswith18

“extravagant and inflammatory” publications ; at the time Hoover’s body was found , and thereafter, there wasunfriendly talk ag ainst Spotted Hawk, and the inhabitants of the county held him in utter contempt ; bitterness ag ainst the Indians extended to all parts of the county and existed atthe 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 w hen the public sentiment is in “ ablaze of excitement and passion” ag ainst one of the parti es to the action, the pressure of this public sentiment could make itself felt during the trial and could influence

o r biasthe 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 ag e, 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 firstappeal 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 of19

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 d eliberately, by trickery, delay and fa voritism, 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 pic ture 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 Cou nty. 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 58 1
- 83, 269 P.2d at 797
- 98. In ad dition 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 ag reed that Dryman should be housed at the state penitentiary in Deer Lodge , rather than the Too le 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 themotion 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 af ter the murder and Dryman’s guilty plea. The “widespread and deep
- seated opinion” was that Dryman was guilty and should be20

hanged. Dryman , 127 Mont. at 586
- 87 , 590, 269 P.2d at 799
- 800 , 801
. We notedthat “ it
seems natural that such opinion should exist in Toole County,” given Dryman’s gu ilty plea and the inflammatory press cov erage . But the existence of such opinion led usto hold that hewas 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 C ourtwill presume prejudice

—similar to the approach of the federal courts

—in extreme situations where there are such perv asive 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. Ab e, 1998 MT 206, ¶¶ 36
- 41, 290 Mont. 393, 965 P.2d 882 (concluding that the publicity,
ev en if inflammatory, was not so widespread as to generate a general belief about t he defendant’s guilt throughout the jury pool). A part from such exceptionalcases, 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 gu ilt 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 requirementinclude 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
- 1 0, 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.21

497, 50 5
-07, 757 P.2d 1275, 1280
- 81 (1988); State v. Ritchson , 199 Mont. 51, 55, 647 P.2d 830, 832 (1982); State v. Armstrong , 18 9 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 andproceduresf or analyzing the two different types of prejudice. As the basis of a motion for change of v enue , the defendant may allege presumed prejudice, actual prejudice, or both. Wherepresumed prejudice is alleged

— meaning that the court is being aske d to presume that jurors selected from the community cannot be impartial

— the bar is extremely high. The defendantm ust demonstratet

hat 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 gu ilt or innocence. Presumed prejudice, necessitating a chang e of venue, will be found only in situations analogousto 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 partial ity 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, b ecause mediac ov erage ma y occur throughout the pretrial period andt he trial its elf, and because new publicity ma y generate new concerns about the defendant’s ability to receive a fair and impartial trial, a motion for change of venue may22

be madeo r renewed at any point during the pretrial period, vo ir 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 exist ing atthe time the motion is decided and that if further delay or changed circumstances justify reconsiderationo f 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 newconcerns 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 trialc ourt was wrong for refusing to granta 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 not es 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 revisethis standard where, as here, the defendant alleges“presumed prejudice.” He arguesin this regard , first, that the standard of review under federal law is de novo where the motion is based on presumed prejudice and, se cond, that we should adopt the s ame 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.23

¶35 We decline to adopt this approach. First , it is truethat “[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 othergrounds , 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 t he United States.”). Yet, c ontrary to Kingman’s implication, there is no c learly established federal law

—lea st of all by the Supreme Court

— holding that “de novo” rev iew applies to claims of presumed prejudice. ¶36 In support of this proposition , Kingman cit es McVeigh , 153 F.3d at 1179 , where the Tenth Circuit state d, on one hand, that it would undertake de novo review of whether the complained
- of publicity and t he circumstances surrounding that public ity were “ of such a nature as to render impartiality impos sible ”(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 neg ative pretrial publicity”( actual prejudice). We note that t he Fifth Circuit statedthe same dual standard sin U.S. v. Skilling , 554 F.3d 529, 557
- 58 (5th Cir. 2009)( “We review de novo whether pre sumed prejudice tainted a trial
. . . . I n rev iewing 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 n or 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 evalu ating presumed prejudice
. M ore importantly,24

however, it appears that a side 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. Misl a - 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
- 8 6(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)
. I

t 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
rev iew 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 me chanism allowing thed efendant to obtain a change of venue isf

ounded primarily on the principlethat a defendant is constitutionally entitled to a fair trial by an impartial jury
. A nd 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
. “A25

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 fa ir trial in accordance with due process is still a question over which we exercise plenary review. ¶39 However, in determining the more specific question wh ether , in light of extant circumstances, such prejudice exists as to necessitate a change of venue, the trial court must be afforded broaddeference . I ndeed, the nature of this determination simply does not lend itself to de nov

o 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 ba se 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 re action to the crime has been , and the overall community sentiment
. Conversely,
appellate courts making af ter- 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 isthis true with respect to claims of presumed prejudice, it is
ev en more compelling in the cont ext of alleged actual prejudice.

Rev iewing courts are properly resistant to second
- guessing the trial judge’s estimation of a juror’s imparti ality, 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 voir26

direaffords the trial court a more intimate and immediate basi s 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 constitution al 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 andon the exhibits submitted by Kingman (recordings of KBZK telev ision 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 con clusion of
vo ir dire or during trial. He states on appeal that his motion is based on presumed prejudice, not actual prejudice.27

¶42 The Supreme Court’s decision in Skilling and our decisions in Spotted Hawk, Dryman , and Coburn indicate that a variety of facto rs 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 there from. First, the size and characteristics of the community in which the crime occurredare clearly relevant
. The larger and more diverse the jury pool , the more likely that 12 impartial individuals
canbe empaneledf

rom 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. a t 30, 655 P.2d at 507. A thirdf actor is the nature of the publicity

— whether it is of the type that readers or vie wers 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 291 6 ; 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 co uld not determine the defendant’ s guilt or innocence in a fair and unbiased manner and based solely upon the evidence admitted at trial.”)
. A nother 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 , 12728

Mo nt. at 586
- 87, 269 P.2d at 799
- 800
. Lastly, and of “prime significance”w hen
ev aluating 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 defend ant 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 fa ilure of proof of guilt of so me of the alleged crimes indicates a fa ir 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 so me, 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 wasdrawn. 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 “allegation s,” “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 nine29

broadcasts weref

rom local television station KBZK. Based on the statistics provided by Kingman, the District Court estimated that roughly h alf of the households in Gallatin Co unty are exposed to the Chronicleon a daily basis. Furthermore, t he KBZK news report, in conjunction with the station’ss ister affiliate in Butte, reaches approximately 100,000 vie wers ; howev

er , 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 Chroniclearticles 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 wa s set for November 12, 2009. ¶45 Finally, as to ostensible adverse community reaction, the District Court rejected Kingman’s argumentthat the fundraising efforts t o assist Overby wereindicative of, and fostered, a community
- held perceptionthat Overby was an innocent victim and Kingman
was a brutal, unprovoked attacker. The court observedthat Kingmanhad presented no
ev idence in supporto f

this contention
. Turning to the juror questionnaires, the co urt 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?” (A s noted, 108 marked “no” and 15 left the question blank.) The court found this percentageof affirmative responses to be insufficient to establish that Kingman could not receive a fair and impartial trial in Gallatin County, particularl y 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,30

and whether the juror could lay that opinion aside and render a verdict based on the
ev idence presente d. The questionnaire also asked those respondent s who had read , heard, seen, or discussed thec ase to “please tell us ev erything you think you know about t his case, in as much detail as possible. ” In response, s ome 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 inj ured and unconscious.” Kingman claimed theseresponses 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 indicatedthey 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, equatesto prejudice against Kingman or a fixedopinion about his guilt. ¶46 For the sereasons, 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 c ourt’s analysis and argues that several factors mandate a finding of presumed prejudice
. ¶47 First , Kingmanc ontendst hat 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
ev ocative and emotional language to describe the events , emphasized the graphic details31

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 ag ainst an esteemed lo cal. Having reviewed the articles and broadcasts, however, we cannot agree that the media reports were as slanted and inflammatory as Kingman su gge sts. Although the reports describeabrutal and g

ruesome 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“ alleg ation s,” “accusations,” and “charges. ” Most of the complained
-of reports were published or broadcast within the first few weeks af

ter the fight, over a year before Kingman’strial. No tably, a subsequent Chroniclearticle, dated May 2 8 , 2009, reports Kingman’ss ide of the story and his claim that Overby was the aggressor and Kingman acted in self
- defense. While Kingman speculates that the impact of thee arly publicity hadnot appreciab ly diminish edb y the time of trial, we do not agree that this is a case like Dryman , where the impact of the
news itemswas still felt more than a year after they werepublished. See 127 Mont. at 586, 269 P.2d at 799 (opinion of the Court), 127 Mont. at 5 91, 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 onKingman
.32

¶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 th e type of information which , like the videotaped confession in Rideau , readers and vie wers could not reasonably be expected to shut from sight. He also points outthat even wherethe information reported by the media is “f

actual ” ( as opposed to editorial izing) , it may still have a prejudicial impact. He maintains that his “confession” was blatantly prejudicial. ¶49 It is true that “factual” information ma y create prejudice in the community. See e.g. Dryman , 127 Mont. at 590, 269 P.2d at 801 (the “fact” that Dryman had pleaded gu ilty was one of the main reasons that the widespread and deep
- seated opinion in Toole County wasthat he was guilty and should be hanged) ; Devlin , ¶ 22 ( factual information
ma y be reported in an inflammatory manner , and the reporting o f factual information may be inflammatory in light of the particular circumstances)
. It is also truethat 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 persuadedhere , however, that the reporting of Kingman’s voicemail message justifies presumed prejudice. It should be noted that the
me ssage was not broadcast or printedrepeatedly . 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.” Thethird 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 portion33

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

f elt, o h g od it felt so good. So good. Call me back when you get this.” I n Rideau , howev

er, the Supreme Court emphasized the inherently prejudicial impact of repeatedly vie wing Rideau confess in detail during a 20
- minut e interrogation by the local sheriff
. 373 U.S. at 724, 83 S. Ct. at 1418. The Court statedthat it was a denial of due process of law to refuse the request for a chang e 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 proceedin gs in a community so perv asively 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
me ssage in which the speaker eng ag ed 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 , i f34

one also considers the short quotations taken from “charging documents”in the second article ). I

mportantly, 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 arg ues that the fundraising efforts for Overby are evidence that the community was inflamed by the pretrial publicity. Hequotes 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 v

ictims, the girl, was d iscovered 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 parent s 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 arelatively small community, is a strong indication that the venue should be changed. Maine , 438 P.2d at 378
-79 (footnote omitted). I n 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 fateas to justify a presumption of communitywide antipathy to ward Kingman
. There is no evidence that the media or Overby’s friends “urged every citizen to contribute.” In fact, Kingman has producedno35

ev idence 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.” Devli n , ¶ 30. ¶51 Lastly, Kingman arg ues that the publicity’s perva siveness and prejudicial effectis
ev idenced 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 opin ion that would affect their ability to serve as juror s . 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 tha t “social science has repeatedly correlated potential jurors’ exposure to pretrial publicity and prejudgment of criminal defendants.”3 Ev

en 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. S howing 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 th at would affect their ability to serve as juror s. These numbers belie
a presumption that the entire jury pool was corrupted by anti
- Kingman press cov erage. Ev en with reg

ard 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).36

question isn ot very useful in assessing prejudice. As the District Court noted, the question provide s n o 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 op inion 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 i mpression or opinion and render a verdict based on the evidence presented in court. Devlin , ¶ 32
. The questionnaire responses hered o not show that the jury pool was firmly p redisposed to convict Kingman. ¶52 Kingman raises a fe w other considerations, none o f which merits discussion. In light of all the facts and circumstancesdiscussed above , we hold under the United States Constitution and the Montana Constitution that the District Court did not abuse its discretion in denying Kingman’smotion to change venue based on presumed prejudice. Kingman’sevidence of pretrial publicity and community sentiment does not even come close to meeting the high standard necessary to establish suchp rejudice. There is no indication that the Gallatin County populace was in censed . 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 publ icity effectively displaced the judicial process37

and dictated the community’s opinion as to his gu ilt or innocence. I ndeed, Kingman’s claim of presumed prejudice is substantially refuted by the fact that he ultimately was acquitted o f 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, 1 30 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 sentenc e 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 hi s past offenses, his failure to comply with the terms and conditions of his previous probation, and the need to protect the public
. F inally, the prosecutor discussed the psychological ev aluations of Kingman, which found that he had problems with anger andimpulse 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. S ome animals need to be caged. S ome 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.38

When he’s over at the DetentionC enter acting up, pounding on walls, breaking sprinkler heads, 4h e’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
ar gued that it is downright offensive and wrong to label anyone as “an animal that needs to be locked up in a cag

e.” C ounsel noted that “[p]eople in this country are afforded at least some measure of human dignity. And reg ardless 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 altercationwith Overbybut Overby continued to provoke and shove Kingman from behind
. C ounsel assertedthat “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 arg ued that Kingman’s potential to be a productive member of society would be wastedif he were given the maximum sentence. Counsel recommended fi ve 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 Kin gman’s willingness to take responsibility for his actions and his honest expression sof remorse for what he had done
. Nevertheless, the court imposed the maximum sentence of 20 yearsat

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.39

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 observ ed that Kingman’s “ actions were deliberate. He did not walk away when he could hav e. He totally lost control of himself, and he continued to beat Mr. Overby af

ter he was down on the ground.” Moreo ver, af ter the attack, Kingman “was not horrified by what he had done or how he had responded. I nstead, he was thrilled with the effect of w hat he did and how he continued to beat Paul Overby like ‘Rocky punching wet meat.’ ” The court also factored into its considerationthe severity of the injuries inflicted by Kingmanand his“ significant criminal history” involving violence and anger mixed with drug and alcohol abuse. In addition, the court noted Kingman’s repeated fa ilure to comply with the terms an d conditions of his previous probationand 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 dang er to any community in which he stays with his ang er 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 “ needsto be cag ed.” 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 is40

inviolable.
. . . ” Kingman requests that we vacate his sentence and remand his case for resentencing before a different judge. ¶58 At the outset, certainof the prosecutor’s remarks at the sentencing hearing clearly pushed the bounds of proper argument
. The prosecutor’s stat ement 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 su gge stionthatthe court ought to view Kingman as an “animal” needing to be “caged” is l ikewise inappropriate
. As we have recognized, treatment which deg rades or demeans persons, that is, treatment which deliberately reduces the value of persons, and which fa ils to acknowledge their worth as persons, d irectly 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 nev

er disrespect the core humanityo f the prisoner.’ ” Walker , ¶ 81 (emphases added) (quoting M atthew O. Clifford & Thomas P. Huff , Some Thoughts on the Meaning and Scope of the Montana Constitution’s “Dignity” Clause wi th Possible Applications , 61 Mont. L. Rev. 301 , 331 (2000) )
. The se principles apply no less to the proceeding in which the appropriate punishment is determined, and argumentw hich , in that context,deliberately reduces the value of the convicted defendant or disrespects the defendant’s core humanity is improper. ¶59 That b eing said, we cannot agree with Kingman’s premise that the prosecutor’s remarks

—“offensive” as they ma y have been

—actually played any part in the District Court’s decision to impose the maximum sentence. For one thing, defense counsel made41

a point of argu ing 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 sev ere drug and alcohol abuse and committed this crime while extremely intoxicated, that he has continued to act out in angereven 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. [Emphase s added.] Finally, t he 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 in flicted 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
ev idence the court considers to have probative force). ¶60 Kingman notesin his opening brief that he “claims no improper action on the part of the district co urt in regard to his sentencing.” His claim, therefore, appears to be that when a prosecutor makes improper argu ment at sentencing, the defendant is entitled to be resentenced (by a different judge ) ev en though the prosecutor’s remarks had no influence on the trial court’s decision to impose the concededly legal sentence that the defendant42

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 resentencedbased 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