No. 14443 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

- 

STATE OF MONTANA, 

Plaintiff and Respondent, 

PRENTISS N. KIRKLAND, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Lee Overfelt, Billings, Montana 

Gary D. Overfelt argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Sheri Sprigg argued, Assistant Attorney General, Helena, 

Montana 

Harold Hanser, County Attorney, Billings, Montana 

LC. r ' N'" ti '- - 

Filed: i. 

Submitted: September 11, 1979 

Decided : NOV 7 1979 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

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 ~pril 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 ~prill8 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(~), 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. 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 

is 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 he was able to hire his own attorney, did 

not request the court to pay for an investigator from public 

funds, or claim indigency. 

Defendant also claims inability to examine and test the 

weapon and to secure expert testimony regarding the weapon because of time constraints. Defendant clearly had time to examine 

and test the weapon prior to trial. He arguably did not have time 

to secure expert testimony regarding the weapon. But here his 

defense was based on accidental discharge of the gun. The expert witness for the prosecution testified the weapon had "a potential for accidental discharge." Where is the prejudice? 

For the foregoing reasons, the District Court did not abuse 

its discretion in denying defendant a continuance of his trial. 

There is nothing to indicate he was prejudiced or denied a fair 

trial by reason thereof. 

Defendant claims reversible error because he was denied 

the right to question prospective jurors on the death penalty. 

As previously discussed he has no standing to raise this issue because he was not convicted of a crime involving the death penalty 

nor was he sentenced to death. Our prior holdings in Johnson and 

McFarland together with our subsequent rulings in Booke and Azure 

establish this principle. 

Defendant's principal specification of error is the refusal 

of the District Court to permit interrogation of members of the 

jury concerning their exposure to inflammatory and prejudicial news 

releases indicating he was a hired killer. 

Defendant's motion seeking interrogation of jurors was 

made on April 21 following 3-1/2 days of trial testimony. He 

supported his motion by three news releases. The first was aired 
over a Billings television station on April 17, the day before 

trial: 

"Prentiss Kirkland is being tried for attempted 

deliberate homicide. He used a .38 caliber 

pistol to shoot Sparboe in the chest on February 

12th. According to district court records, however, police have received information that Kirkland 

was hired by an unknown person or persons to shoot 

and kill Sparboe." 

The second news release was from UP1 on April 17: 

"They believe that Kirkland was paid to shoot 

Sparboe who was wounded on February 12th. Police 

say Sparboe was shot in the chest at close range 

by a man using a .38 caliber pistol. According 

to district court records . . . police have received information that the defendant Kirkland 

was hired by a person or persons unknown to shoot 

and kill Sparboe." 

The third was aired over a Billings television station on April 

"Police have received information that the defendant was hired by an unknown person or persons to 

shoot and kill Sparboe." 

The apparent source of this information was an application 

for a search warrant to inspect defendant's bank records appearing in the District Court file and reading as follows: 

"In attempting to determine defendant's motive for 

allegedly shooting Sparboe, police have received 

information that defendant was hired by unknown 

persons(s) to shoot and kill Sparboe. Investigation reveals that Sparboe is a financially successful businessman, whose estate is estimated at well 

over $5 million, and several persons could profit 

by his death. Investigation reveals that it is common hearsay among persons acquainted with both the 

victim and the defendant that defendant was hired 

to shoot and kill the victim, At the time of defendant's arrest, he was searched and booked into 

the county jail, where all his personal effects were 

seized and held as evidence. In his wallet were 

found certain bank deposit receipts, for account 

#427856 at First Citizen's Bank in Billings, reflecting deposits of over $25,000.00 in the last eight 

months. One deposit alone accounted for $22,000.00. 

There is no evidence that defendant has been employed 

during this period of time, or that he has any legitimate source of income." 

The application for search warrant was filed on March 14. The 

warrant was issued. The search was made and the return filed on 
March 14. 

On April 14 defendant moved for a change of the place of 

trial on grounds "that there has been an attempt by certain 

parties in the community to brand [the defendant] as a paid 

assassin." (Bracketed identification paraphrased.) The motion 

was denied on the first day of trial "pending jury selection 

efforts." It was not renewed thereafter and is not specified as 

error in this appeal. 

Defendant's motion to interrogate the jurors on their 

exposure to these news releases was made on April 21, the fourth 

day of trial. It was denied on the basis that the voir dire examination of prospective jurors on April 18 covered "their knowledge of notoriety in the press" which would seem to cover the two 

releases of April 17 and that on the 18th "the jury was specifically instructed not to read newspaper accounts nor to listen to 

television or radio reports of the trial." In fact the admonition 

of the 18th did not specifically cover the latter. 

However, on the 19th the court specifically stated to the 

jury: "I request that you do not read newspaper accounts of this 

trial nor listen to radio nor television reports." A similar 

specific admonition was given again at the end of the day on April 

19, the second day of trial, again at the end of the fourth day of 

trial, and again at the end of the fifth day of trial. In his 

instructions to the jury the judge stated: 

"In your deliberations you will only consider 

the testimony of the witnesses upon the witness 

stand and such exhibits as have been admitted in 

evidence. No juror shall allow himself to be 

influenced by anything which he may have seen or 

read outside of the evidence and exhibits received 

by the Court during the course of this trial." 

We also note that at the close of the State's case-in-chief, 

defendant moved for a mistrial on the ground that publicity given 

the case had made a fair trial impossible. 

The focus of our inquiry into this specification of error 
is twofold: (1) What action is required of the trial judge 

when news releases prejudicial to defendant appear during the 

course of trial? (2) Did the prejudicial news releases taint 

any juror in this case? 

We have not previously been confronted with determining 

what action, if any, a trial judge must take when prejudicial 

news releases are brought to his attention during the course of 

a criminal trial. Specifically, does the trial judge have a 

mandatory and affirmative duty to initiate an inquiry of the 

jurors to ascertain whether any of them had heard or read the 

prejudicial news release? 

Some federal and state appellate courts require this. 

Typical of this view is the following statement by the United 

States Court of Appeals of the Seventh Circuit: 

" . . . the procedure required by this Circuit where 

prejudicial publicity is brought to the court's 

attention during a trial is that the court must 

ascertain if any jurors who had been exposed to 

such publicity had read or heard the same. Such 

jurors who respond affirmatively must then be 

examined, individually and outside the presence of 

the other jurors, to determine the effect of the 

publicity." Margoles v. U.S. (7th Cir. 1969), 

407 F.2d 727, 735. 

In accord: U.S. v. Hankish (4th Cir. 1974), 502 F.2d 71; u.S. 

v. Jones (4th Cir. 1976), 542 F.2d 186; State v. Keliiholokai 

(1977), 58 Haw. 356, 569 P.2d 891, It is noted that those courts 

that have adopted this rule, with the exception of the Hawaii 

Court, have apparently done so in their supervisory capacity over 

trial courts and not because the procedure is mandated by constitutional due process requirements. 

A contrary view has been taken by the Kansas Supreme 

Court. That court adopted the rule that where the record on 

appeal fails to show that a single member of the jury was aware 

of the publicity and when it does not appear the publicity was 

massive, pervasive or disruptive of trial proceedings, no trial 

error appears for there is no showing that defendant was deprived 
of a fair trial. Its rationale appears in the following passage: 

"In our judgment the disposition of this point 

is governed by State v. Smith, 215 Kan. 34, 523 

P.2d 691, and State v. Potts, 205 Kan, 42, 468 P.2d 

74. In Smith we held that a motion to inquire 

during trial is not a proper method to determine 

if members of a jury are aware of prejudicial articles published by a newspaper during a trial, A 

similar situation was before the court in Potts where 

we stated that an inquiry pertaining to newspaper 

publicity during the trial may place prejudicial 

matter before the jury and create a basis for a mistrial and that the trial of a case should not be 

interrupted for inquiry on each article published 

by the news media. In Potts in refusing to reverse 

a criminal case on the grounds of prejudicial newspaper publicity we emphasized that no attempt was 

made at the hearing on the motion for a new trial 

to show that any member of the jury was aware that 

such an article had been published. The rule to be 

followed is that where the record on appeal fails 

to show that a single member of the jury was made 

aware of the publicity and when it does not appear 

the publicity was massive, pervasive or disruptive 

of the trial proceedings, no trial error appears 

for there is no showing that defendant was deprived 

of a fair trial. Here the record on appeal fails 

to show that a single member of the jury was made 

aware of the newspaper publicity or that the publicity was massive, pervasive or disruptive of the 

trial proceedings. In order to prove that members 

of the jury were aware of the newspaper article, 

counsel for the defendant could have requested a 

poll of the jury after it returned its verdict. In 

the alternative he could have subpoenaed the jurors 

on motion for a new trial to show that they had knowledge of the article. Under the circumstances we 

hold that there has been no showing that the defendant was deprived of a fair trial because of prejudicial newspaper publicity." State v. Stewart (1976), 

219 Kan. 523, 548 P.2d 787, 793-94. 

In accord: Louisiana v. Hegwood (1977), La. , 345 So.2d 

1179; Commonwealth v. Nolin (1977), Mass. , 364 N.E.2d 1224. 

We are not persuaded to adopt a rule requiring a trial 

judge in every case where a prejudicial news release is brought 

to his attention during the course of a trial to launch an immediate inquiry of the jurors to determine whether they are aware of 

the offending publicity and if so, the effect of such publicity. 

We prefer to leave that to the trial judge's judgment and discretion, subject to his later review after verdict on appropriate 

motion, and our review on appeal. There are several reasons for 
this. A mandatory, affirmative requirement of an immediate 

juror inquiry is an inflexible rule denying the trial judge 

discretion in controlling trial proceedings. Such inquiry might 

inject error into the trial where none existed before. An 

immediate, mandatory inquiry during the course of trial into 

every news article, radio broadcast or telecast that is potentially prejudicial in the fertile mind of defense counsel might 

well disrupt trial proceedings unnecessarily and divert the attention of the jurors from their principal function of determining the guilt or innocence of the defendant under the evidence 

produced at the trial. Finally, the need for such a rule is 

questionable as the defendant's right after verdict to inquire into, develop and indicate any prejudice is preserved. On appeal, 

the ruling of the trial judge on juror inquiry is subject to review. 

We proceed to a determination of whether the prejudicial 

news releases in this case tainted the jury, bearing in mind the 

general rule enunciated by the Supreme Court of the United States: 

"The trial judge has a large discretion in ruling 

on the issue of prejudice resulting from the 

reading by jurors of news articles concerning 

the trial. (Citation omitted.) Generalizations 

beyond that statement are not profitable, because 

each case must turn on its own special facts." 

Marshall v. U.S. (1959), 360 U.S. 310, 79 S.Ct. 

1171, 3 L Ed 2d 1250. 

The record in this case does not indicate continuous and 

massive publicity pervading the entire community which had a slopover effect on the jury as in Estes v. Texas (1965), 381 U.S. 532, 

85 S.Ct. 1628, 14 L Ed 2d 543, or Sheppard v. Maxwell (1966), 

384 U.S. 333, 86 S.Ct. 1507, 16 L Ed 2d 600. Nor is it a case 

where several of the jurors admitted having read the prejudicial 

news article as in Marshall v. U.S., supra. 

The core of this case is whether defendant was denied a 

fair trial by reason of three news releases, two of which were 

the day before the trial and the third on the first day of trial. 
The record before us is barren of any indication that any juror 

was aware of the news releases. Defense counsel was permitted 

to voir dire the prospective jurors on their knowledge of notoriety 

in press. The selected jurors indicated they had not been influenced by media reports and they would render a verdict based only 

on the evidence introduced at the trial. At the time of voir dire 

examination of the prospective jurors, defense counsel was aware 

of an attempt to brand his client as a paid assassin. A month 

prior to trial the prosecution had filed an affidavit to the effect 

that the police had received information that defendant was hired 

by unknown person(s) to shoot and kill Sparboe. Four days before 

trial, defense counsel had filed an affidavit disclosing his knowledge of an attempt to brand his client as a paid assassin. Under 

such circumstances the District Court's denial of defendant's motion after 3-1/2 days of trial to interrogate the jurors on their 

exposure to the two news releases of April 17 was not an abuse of 

discretion. 

The news release of April 18 occurred after the jury was 

sworn and the trial had commenced. Thus the jury was not interrogated on their exposure to this release. This telecast contained 

the same information included in the two news releases prior to 

trial, specifically that police had received information that the 

defendant was hired by an unknown person or persons to shoot and 

kill Sparboe. We find no reason to treat this telecast any differently in our analysis than the first two news releases. 

Additionally we have previously pointed out the admonitions 

of the trial judge and his instruction to the jury. We further 

note that no facts were submitted on defendant's motion for a new 

trial indicating that any juror had been exposed to any of the 

three news releases. 

For the foregoing reasons, we hold that the trial judge 
did not abuse his discretion in denying the defendant's motion 

for interrogation of the jury on April 21. 

Defendant's attack on the jury instructions is without 

merit. He contends that the instruction on attempted deliberate 

homicide is unconstitutional because the death penalty could be 

imposed. This attack fails for the reasons previously discussed 

under defendant's first specification of error and will not be 

repeated here. 

Defendant argues that the District Court should have 

granted him a new trial because the victim Sparboe referred to 

an item not in evidence. 

During his testimony Sparboe apparently took a beeper or 

pocket pager from the clothes he was wearing at the trial, indicated it was in his shirt pocket when he was shot, and that the 

bullet struck off it and broke a pen in the same pocket. Defendant's counsel asserts he did not hear this testimony at the trial, 

accordingly did not object, and only learned of it the next day. 

On appeal, defendant contends the prosecution suppressed this exculpatory evidence entitling him to a new trial. 

This evidence was not suppressed by the prosecution. The 

state did not take possession of the pager nor consider it evidence. 

After defendant learned of its existence at trial, he did not attempt to have it admitted in evidence during the succeeding four 

days of trial. He did not request a continuance. He did not seek 

its admission in evidence or request the prosecution to do so. Evidence is not withheld or suppressed if the defendant has knowledge 

of the facts or circumstances, or if the facts become available 

to him during trial. State v. Rueckert (1977) , 221 Kan. 727, 561 

P.2d 850. See also Beasley v. State (F1a.Dist.A~~. 1975), 315 

So.2d 540; Roman v. Commonwealth (1977) , KY , 547 S.W.2d 

128; James v. State (1977), Tex . , 546 S.W.2d 306. 

The final specification of error is that the sentence of 
30 years in the State Prison at hard labor without eligibility 

for parole or participation in the prisoner furlough program 

constitutes cruel and unusual punishment in violation of the 

Eighth Amendment to the United States Constitution. 

Here the sentence was within the statutory limits. 

MCA . Section 46-18-502 (1) and 46-18-202 (2),/ A sentence within statutory limits is presumed not to be cruel and unusual punishment. 

U. S. v. Kuck (10th Cir. 1978), 573 F.2d 25. We have held this 

to be the general rule. State v. Karathanos (1972), 158 Mont. 

461, 493 P.2d 326. Defendant has the burden of proving by a preponderance of the evidence that his sentence falls within an exception to the general rule. In re Jones (1978), Mont . I 

578 P.2d 1150, 35 St.Rep. 469. Here defendant has not done so. 

Thus his specification of error lacks substance. 

Affirmed . 

Chief Justice