No. 14443 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

- STATE OF MONTANA, Plaintiff and Respondent,

PRENTISSN. KIRKLAND, Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judgepresiding. 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, CountyAttorney, Billings, Montana

LC. r ' 

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## - Filed: i. Submitted: September 11, 1979 Decided: 

## NOV 

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## 1979Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendantwas convicted of aggravated assault following

a jury trial in the District Court of Yellowstone County and sentenced to 30years imprisonment without parole as a persistent felony offender. He appeals from the judgmentof conviction, the sentence imposed, and denial of a new trial. In themonths preceding February, 1978,defendant Prentiss N. Kirkland had received several threats on his life. In December, 1976, hispickup truck was blown up by persons unknown. On February 12, 1978,he and Mary Gunschwere in the Squire Lounge in Billings,Montana when he received an anonymousphone 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 fromhis 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 Billingspolice.On February 17, 1978,defendantwas charged with attempted deliberatehomicide. He retained his own counsel and plead not guilty. OnApril 14defendant 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 defendantmoved 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 themotion to change the place of trialpending 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 toprevent the defense from suggesting to the jury that the death sentence

was a possible punishment. On themorning of April 18,the jurywas empanelled and

sworn. That afternoon the trial started, The jurywas 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 21during the course of trial,defense counsel moved that the jury be questioned concerning their exposure to telecasts from Billings television stationsbranding defendant as

a hired killer. Thepresiding 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 thejury had been admonished on the 18th not to read newspapersor listen to news accounts of the trial. On April 24defendantmoved for a mistrial based on the news releases. Themotion 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 founddefendant to be a persistent felony offender and sentenced him to 30years in the State Prisonwithout the possibility of parole or prisoner furlough. Defendant appeals advancing seven specifications of error: 1. Denial of hismotion to strike the information. 2. Denial of his motion for a continuanceof the trial. 3. Denial of his right to question prospective jurors

on the deathpenalty. 4. Denial of interrogationof jurors concerning their exposure toprejudicial 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 codeprovision on deliberate homicide,and (2) the statute on attempt provides a possible deathpenalty in violation of constitutional prohibitions against cruel and unusualpunishment. Here the information charged defendantwith attempted deliberatehomicide. 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 "incustomary form the statute,rule, or other provision of lawwhich the defendant is alleged to have violated." Section46-11-401(~), MCA. Defendant'sattack fails on two grounds. First,his motion to strike the informationwas untimely. Themotion 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 twomonths after entry of defendant's plea, Secondly,themotion was properly denied on themerits. The test to be applied is "Would a person of common understanding knowwhat 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 homicidemay 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 constitutionalprohibitions. 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 isneither 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 thisprinciple in Statev. Booke (1978), Mont. 

### , 583 P.2d 405, 35 Mont. St.Rep. 1249,and State v. Azure (1979), 

## , 591 P,2d 1125, 36 St.Rep. 514, 521.Defendant next contends that itwas reversible error to deny his motion for a continuance of his trial. The gist of his argument is that he was thusdeprived of dueprocess and the right to effective assistance of counselbecause he lacked time and money to investigate the facts surrounding the alleged crime and to examine and test the alleged weapon. Defendantwas incarcerated throughout the pretrial period. His motion for a continuancewasmade and denied onApril 17, the day before trial. The gun allegedly involved in the shooting

was returned to the prosecution onApril 14 from the FBI laboratory. Theprosecution furnished defendant's counsel a list of its witnesses, their proposed testimony,and cooperatedwith defense counsel inmaking the weapon available for inspection and testing after itwas 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. (Citationomitted.) The district court cannotbe overturned on appeal in absence of a showing of prejudice to themovant. (Citation omitted.) "Defendant's argument thereforemust stand or fall on the issue of prejudice, for the district court can be said to have abused itsdiscretion only if its ruling was prejudicial. We have not found a single case

# ... in which the denial of a motion for continuancewas reversed without a showing of resulting prejudice to themovant." Statev. Paulson (1975), 167Mont. 310, 538 P.2d 339. Defendant's claim of lack of time to investigate the facts surrounding the alleged crime has a hollow ring. Twomonths elapsed between entry of defendant's plea and his motion for a continuance. Theprosecution 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 anindependent investigation and interview. What conflict? What vagueness? What witnesses? The record isbarren. Defendant also claimed lack of funds to hire an investigatoruntil 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 theweapon prior to trial. He arguably did not have time to secure expert testimony regarding theweapon. But here his defense was based on accidental discharge of the gun. The expert witness for the prosecution testified theweapon had "apotential for accidental discharge." Where is the prejudice? For the foregoing reasons, the District Court did not abuse its discretion in denying defendant a continuanceof his trial. There isnothing to indicate he was prejudiced or denied a fair trial by reason thereof. Defendant claims reversibleerror 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 deathpenalty

nor was he sentenced to death. Our prior holdings in Johnson and McFarland togetherwith our subsequent rulings in Booke and Azure establish thisprinciple. Defendant's principal specification of error is the refusal of the District Court topermit interrogation of members of the jury concerning their exposure to inflammatory and prejudicial news releases indicatinghe 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 hismotion by three news releases. The firstwas airedover a Billings television station onApril 17,the day before trial: "PrentissKirkland isbeing tried for attempted deliberatehomicide. 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 unknownperson or persons to shoot and kill Sparboe." The second news releasewas fromUP1 on April 17: "They believe that Kirkland was paid to shoot Sparboe who was wounded on February 12th. Police say Sparboewas 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 onApril

"Policehave received information that the defendant was hired by an unknownperson orpersons to shoot and kill Sparboe." The apparent sourceof this information was an application for a search warrant to inspect defendant's bank recordsappearing in the District Court file and reading as follows: "Inattempting to determine defendant's motive for allegedly shooting Sparboe,police have received information that defendantwas hired by unknown persons(s) to shoot and kill Sparboe. Investigation reveals that Sparboe is a financially successfulbusinessman,whose estate is estimated at well over $5million, and several persons could profit by his death. Investigationreveals 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 hiswallet were found certain bank deposit receipts, for account #427856 at First Citizen'sBank in Billings, reflecting deposits of over $25,000.00 in the last eight months. One deposit alone accounted for $22,000.00. There isno evidence that defendant has been employed during thisperiod of time,or that he has any legitimate source of income." The application for searchwarrant was filed onMarch 14. The warrant was issued. The search was made and the return filed onMarch 14. On April 14 defendantmoved for a change of theplace of trial on grounds "that there has been an attemptby certain parties in the community to brand [the defendant] as a paid assassin." (Bracketed identificationparaphrased.) Themotion

was denied on the first day of trial "pending jury selection efforts." Itwas not renewed thereafter and is not specified as error in this appeal. Defendant'smotion to interrogate the jurors on their exposure to these news releases was made onApril 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 jurywas specifically instructednot to read newspaper accountsnor to listen to television or radio reports of the trial." In fact the admonition of the 18th did not specificallycover the latter. However, on the 19th the court specifically stated to the jury: "Irequest that you do not read newspaper accounts of this trial nor listen to radio nor television reports." A similar specific admonitionwas given again at the end of the day onApril 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. Inhis instructions to the jury the judge stated: "Inyour deliberations you will only consider the testimony of thewitnesses 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, defendantmoved for amistrial on the ground that publicity given the case had made a fair trial impossible. The focusof our inquiry into this specification of erroris twofold: (1) What action is required of the trial judge when news releasesprejudicial to defendant appear during the

course of trial? (2) Did theprejudicial news releases taint any juror in this case? We have not previously been confronted with determining what action, if any, a trial judgemust take when prejudicial

news releases are brought to his attentionduring 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 ascertainwhether 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 statementby the United StatesCourt of Appeals of the Seventh Circuit: 

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# . . the procedure required by this Circuit where prejudicial publicity isbrought to the court's attention during a trial is that the court must ascertain if any jurors who had been exposed to suchpublicity had read or heard the same. Such jurorswho respond affirmativelymust then be examined, individually and outside the presence of the other jurors, to determine the effect of the publicity." Margoles v. U.S. (7thCir. 1969), 407 F.2d 727, 735. In accord: U.S. v. Hankish (4thCir. 1974), 502 F.2d 71;u.S.

v. Jones (4thCir. 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 ismandated by constitutionaldueprocess 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 jurywas aware of the publicity and when it doesnot appear thepublicity was massive,pervasive or disruptive of trial proceedings, no trial error appears for there isno showing that defendant was deprivedof a fair trial. Itsrationale appears in the following passage: "Inour judgment the dispositionof thispoint is governed by State v. Smith, 215 Kan. 34, 523 P.2d 691,and Statev. Potts, 205 Kan, 42, 468 P.2d 74. In Smithwe held that a motion to inquire during trial isnot a proper method to determine if members of a jury are aware of prejudicial articlespublished by a newspaper during a trial, A similar situationwas before the court in Potts where we stated that an inquiry pertaining to newspaper publicity during the trialmay 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 articlepublished by the news media. In Potts in refusing to reverse a criminal case on the grounds of prejudicial newspaper publicity we emphasized that no attemptwas made at the hearing on the motion for a new trial to show that anymember of the jurywas 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 singlemember of the jurywas 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 isno showing that defendant was deprived of a fair trial. Here the record on appeal fails to show that a singlemember of the jury wasmade aware of the newspaper publicity or that the publicitywas massive, pervasive or disruptive of the trialproceedings. In order toprove 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 itsverdict. 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." Statev. Stewart (1976), 219 Kan. 523, 548 P.2d 787, 793-94. In accord: Louisiana v. Hegwood (1977), La. 

## , 345 So.2d 1179; Commonwealthv. Nolin (1977), Mass. 

## , 364N.E.2d 1224. We are not persuaded to adopt a rule requiring a trial judge in every casewhere a prejudicial news release isbrought 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 offendingpublicity and if so,the effect of suchpublicity. 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 forthis. A mandatory, affirmative requirement of an immediate juror inquiry is an inflexible rule denying the trial judge discretion in controlling trial proceedings. Such inquirymight 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 ispotentially prejudicial in the fertilemind of defense counsel might well disrupt trial proceedingsunnecessarily and divert the attention of the jurors from their principal functionof 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 ispreserved. 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 largediscretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. (Citationomitted.) 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 severalof the jurors admitted having read the prejudicial

news article as in Marshall v. U.S., supra. The core of this case is whether defendantwas 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 counselwas permitted tovoir dire the prospective jurors on their knowledgeof 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 counselwas aware of an attempt to brand his client as a paid assassin. A month prior to trial theprosecution had filed an affidavit to the effect that thepolice had received information thatdefendantwas 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'smotion after 3-1/2 days of trial to interrogate the jurors on their exposure to the two news releasesof April 17was not an abuse of discretion. The news release of April 18 occurred after the jury was

sworn and the trial had commenced. Thus the jurywas not interrogated on their exposure to this release. This telecast contained the same information included in the two news releasesprior to trial, specifically thatpolice had received information that the defendantwas 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 thatno factswere submitted on defendant'smotion for a new trial indicating that any juror had been exposed to any of the threenews releases. For the foregoing reasons,we hold that the trial judgedid not abuse his discretion in denying the defendant's motion for interrogation of the jury onApril 21. Defendant's attack on the jury instructions iswithout merit. He contends that the instruction on attempted deliberate homicide isunconstitutional because the death penalty could be imposed. This attack fails for the reasonspreviously 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 shirtpocket when he was shot,and that the bullet struck off it and broke a pen in the samepocket. 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 evidencewas not suppressedby 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 isnotwithheld 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; Jamesv. State (1977), Tex

# . , 546 S.W.2d 306. The final specificationof error is that the sentenceof30 years in the State Prison at hard laborwithout eligibility for parole or participation in the prisoner furloughprogram constitutes cruel and unusual punishment in violation of the EighthAmendment to the United States Constitution. Here the sentencewas 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 (10thCir. 1978), 573 F.2d 25. We have held this to be the general rule. State v. Karathanos (1972), 158Mont. 461, 493 P.2d 326. Defendant has the burden of proving by a preponderance of the evidence that his sentence falls within an exMont

# . ception to the general rule. In re Jones (1978), 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