No. 89-300 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STATE OF MONTANA, Plaintiff and Respondent,-vsJACK LEE CAMPBELL, a/k/a JAMES AUSTIN, Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Beaverhead, The Honorable Frank Davis, Judge presiding. COUNSEL OF RECORD: For Appellant: J. Blaine Anderson, Jr., Dillon,Montana Vincent J. Kozakiewicz,Dillon,Montana For Respondent: Hon. Marc Racicot,Attorney General, Helena,Montana Elizabeth S. Baker,Asst. Atty. General, Helena Thomas R. Scott, County Attorney; Calvin J. ~rb, Deputy, Dillon,Montana

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,, )I0 - , Submitted on Briefs: Jan. 4, 1990 

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# -- ClerkChief Justice J. A. Turnage delivered the Opinion of the Court. Jack Lee Campbell appeals from a jury verdict in the Fifth Judicial District Court, Beaverhead County. He was convicted of deliberate homicide, robbery, theft, and two counts of tampering with or fabricating physical evidence. We affirm. The issues are: 1. Was Campbell denied a fair trial by prosecutorial misconduct during his cross-examination and during closing argument? 2. Did theDistrictCourt err indenying Campbell'srequested instruction on flight? On the afternoon of August 4, 1988,abody was found near the railroad tracks justnorth of Dillon,Montana. Thevictimhad only a small amount of change and no identifying information on his person. He was later identified as Russell Junior Stubblefield, a/k/a Ronald Smith, a transient who had been seen in the Dillon

area for several weeks. The victim had died from a subdural hematoma as the result of multiple severe injuries to the head. His injuries includeda fracturednose, fracturesofboth theupper and lower jaws, a deep laceration of the jaw, bruised lips and eyes, swollennose tissue, a laceration on the scalp, and a large hinge fracture at the base of the skull. He also had minor injuries indicating that he had been dragged across the ground prior to his death. At the autopsy conducted on the morning ofAugust 5, the pathologist estimated the victim had been dead one to two days. The State'scaseagainst Campbell wasbased on circumstantial evidence. The evidenceat trial showed thatCampbell had been seen with thevictim in and around Dillon for several weeks prior to the homicide. Campbell testified thathehad been a transient for some fourteen years and had last been employed as a cherry picker in Oregon for two weeks in June 1988. Campbell and the victim had appeared together at the welfare and unemployment offices on several occasions, applying for food stamps and work. The victim had told a welfare agent that he and Campbell were traveling together. Both men listed their addresses,on their applications for food stamps, as camped along Highway 91north of Dillon. The Statepresented evidence at trial that onAugust 1, 1988, the victim had received a $569 money transfer through the Dillon Western Union office. That night, he rented a motel room for two people. A maid identified Campbell as an occupant of the room. Campbell was last seen with the victim on the evening of August 3, 1988. They were drinking beer in the area where the victim'sbodywas later found. Thatnight, Campbell rented amotel room in Dillon. The next morning he purchased a bus ticket and went to Idaho Falls, Idaho. In Idaho Falls, Campbell Iflivedit up1'for several days. He checked into the Quality Inn,where he stayed for fournights. Hewent out for fast food. Inaddition tobuying six-packsor twelvepacks of beer in grocery stores,he drankmixed drinks in bars, at one of which he exhibited a large sum of cash and bought a round of drinks for thehouse. OnAugust 8,Campbell returned to Dillon

on a freight train. He was arrested the next day. At the time he was arrested, Campbell had in his possession all of the food stamps which had been issued to the victim on August 3. Several articlesofhis clothingwere stained with blood which was consistent with the victim's. All but one set of the clothes in Campbell's possession appeared to have been freshly laundered. Additional evidenceproduced by the State included Campbell's fingerprints on several beer cans found at the site where the victim was killed and footprints matching Campbell's at the same site. Partially-burned papers revealingthevictim's identitywere found in a fire ring near where the body was found. Campbell relied on an alibi defense, claiming thathe had not been at the scene of the homicide on August 4. Inhis testimony, he described in detail his activitiesduring the summer months of 1988 and testified that the cash for his Idaho trip was money he had saved over the summer. He testified that hehad purchased the food stamps later identified as the victim's from an unknown transient in Idaho Falls. He further testified that his association with the victim was much less extensive than that claimed bythe State and denied traveling with, camping with, staying in the motel with, orvisiting thewelfare and unemployment offices with the victim. Much of the extensive cross-examination was devoted to developing inconsistencies in Campbell's testimony. I Was Campbell denied a fair trial because of prosecutorial misconduct during his cross-examination and during closing argument? Campbell makes several arguments which we have grouped under this issue. First, Campbell argues that it was improper for the county attorney to ask him, during cross-examination, whether he believed another witness was lying. He also claims misconduct in that, in the county attorney's closing argument, the county attorney called Campbell a liar and expressedhispersonal opinion that Campbell was guilty. Last, Campbell argues that the cumulative effect of these errors deprived him of a fair trial. The county attorney asked Campbell the following questions on cross-examination: Q. Okay. Let's talk about the second time that you talked to Sheriff Later and I. Do you recall telling Sheriff Later thatyoumade $60 in Helena working two days? A. No, sir, I do not. Q. If Sheriff Later came in and testified to that fact he'd be lying?A. I wouldn't know if he was lying or not. But 

### Inever made no statement to that fact. Q. Well, if you never made that statement to him, then he'd be lying;wouldn't he? Campbell's counsel objected that "[hie's requiring the witness to harass another witness." The court overruled the objection. The county attorneycontinuedwith another question and never received

an answer to the last question above. Campbell cites Statev. Armstrong (1980), 189 Mont. 407, 616 P.2d 341. In that case, the prosecutor began writing ffliesu or "liarnona chalkboard ashe cross-examinedthedefendant. Defense counsel objected, the court sustained the objection, and the jury

was admonished to disregard statements of counsel not based upon the evidence. Armstronq, 616 P.2d at 353. UnlikeArmstronq, in thepresent case the county attorney did not characterize anyone as a liar. He asked the defendant to characterizesomeone asa liar. Therationale inArmstronq dealing with statements of counsel not based upon the evidence does not apply. Although Campbell has cited cases from several jurisdictions which have held that asking a defendant to characterize another witness as a liar is error, the State has cited several in which such questions were ruled not erroneous. This Court has held that "[wlhen a defendant goes upon the witness stand in his

own behalf, and denies the commission of the crime with which he is charged,a very wide latitude of cross-examination is allowed."Statev. Rhys (1909), 40Mont. 131, 136, 105 

### P. 494, 496. In the absence of an answer to the question, we are unwilling to use it as grounds for reversal. Campbell next objects to the State'scharacterization of him, in closing argument,asa liar. No objectionwasmade tothe first characterization, in which the county attorney explained his long cross-examinationofCampbellastheonly way toexpose a "pathological liar. During defense counsel s closing argument, he said that Campbell was ''notthe type ofman who's just going to come in here andmake up a story to cover forhimself.I1 Campbell'scounsel also stated in his closing argument that Campbell was 'Ithemost candid witness we've had, or at least at the top of theheap." In the State's rebuttal argument, the county attorney listed all of the situations where Campbell's testimony conflicted with his earlier statements, as examples of Campbell as a liar. As to the first reference to Campbell as a llpathological liar, Campbell arguesthathehad a continuing objection fromhis objection to use of the word llliar"on cross-examination. We conclude that these were divergent enough in time and subject matter that a new objectionwas required. We will not review the reference where no objection was made at trial. State v. Wiman

(Mont. 1989), 769 P.2d 1200, 1204, 46 St.Rep. 279, 286. The prosecution's extensive characterization of Campbell as a liar in rebuttal was made in response to the defense characterization ofhim during its closing argument. We have held that no error may be claimed where theprosecutor's actions were provoked by defendant's counsel. State 

### v. Close (1981), 191 Mont. 229, 242, 623 P.2d 940, 947. We hold that the characterizations of Campbell as a liar are not reversible error for that reason. Campbell claims that,at the end of his closing argument, the county attorney improperlygavehispersonal opinion that Campbell

was guilty. The challenged remarks were as follows: Ladies and gentlemen of the jury, the worst thing in the world and the last thing that this officewants to do is convictan innocent man. Defense counsel objected and was overruled. The county attorney continued:But the second to the last thing thatwe want to do is turn a guiltyman loose. I ask you, ladies and gentlemen of the jury, don't turn thisman loose. Look at the evidence, look at whatwe've shown. The inescapableconclusion, who done it? Jack Lee Campbell. Thank you.

The law on prosecutorial comments about the guilt of an accused has been described as follows: Ithasbeen declared that,generally speaking, the duty of a prosecuting attorney, if convinced of the guilt of an accused, is to lead the jurors to a like assessment by pointing out to them, intelligently and impartially, that evidencewhich cannot reasonably justify any other conclusion;and that the better way of fulfilling such duty is to confine his argument to a fair effort to produce such a belief in the jurors1minds without directlyexpressingtheprosecutor's personalizedviews as such. Inthose instances inwhich aprosecutor's personalized argument has been considered misconduct, it has occasionally been reasoned that the expression of the prosecutor'sknowledgeof,belief in, or opinion as to guilt constitutes an invasion of the province of the jury and a usurpation of its function to declare the guilt or innocence of an accused and, moreover, that there is a danger that the jurors might, consciously or unconsciously, accept or adopt the prosecutor s views instead of exercising their independent judgment as to the conclusion to be drawn from the testimony. On the other hand, it has also been stated that themore practical and substantial reasons for considering a prosecutor's personalized argument improper are that the prosecutor's expression of his own views injects intothe case irrelevant and inadmissible matters or a fact not legally proved by the evidence, and adds to theprobative force of the testimony adduced at the trial theweight of theprosecutor'spersonal, professional, or official influence. Thus, there are several different theoretical bases underlying the rules concerning thepropriety of a prosecutor's personalized argument. 

# . . Annotation, Propriety and Prejudicial Effect of Prosecutor's Argument to Jury IndicatingHis Belief or Knowledge as to Guilt of Accused--Modern State Cases, 88A.L.R.3d 449, 454-55 (1978). In State v. Musgrove (1978), 178 Mont. 162, 582 P.2d 1246, rev'd. on other grounds after remand, 202 Mont. 59, 655 P.2d 982, the following statementby theprosecuting attorneywaschallenged: We told you that we were going to give you every shred of evidence that we had, whether it was good or bad because we were convinced that all the evidence would convince you beyond a reasonable doubt the defendant was responsible for the death of John Linker.Now, we have kept our bargain. And after hearing all thistestimony,I'mconvinced that Musgrove is a liar and he is responsible. Musqrove, 582 P.2d at 1252. This Court reasoned that The first statement of theprosecutor thatwe have quoted above appears to be based on his analysis of the evidence and is a matter on which he could properly argue. Therefore no improprieties exist with respect to that portion of the closing argument. However, with respect to the second portion of the argument which we have quoted above, the prosecutor is expressing his personal opinion as to the guilt or innocence of the accused and it is thereforehighly improper. Musqrove, 582 P.2d at 1252. In the present case, the county attorney did not state that he believed Campbell was guilty. He said that the inescapable conclusion from the evidence was that Campbell had committed the crimes. His remarks do not imply any knowledge separate from the evidence at trial: "Look at the evidence, look at what we've shown. We conclude that thecounty attorney s remarks in closing argument do not constitute reversible error. Finally,Campbell argues thathe wasdenied a fairtrialbased

on the cumulative effect of the cross-examination and closing argument discussed above. While Montana recognizes that the accumulationof errorsmay prejudice a defendant'sright to a fair trial, mere allegations of error without proof of prejudice are inadequate to satisfy the doctrine. State v. Grant (1986), 221Mont. 122, 137, 717 P.2d 562, 572. Inthis case,theprosecution's challenged remarksand questions when viewed in the context of the lengthy trial were not prejudicial. The circumstantial evidence against Campbell was compelling. Campbell's own testimony was preposterous. In light of the entire record, we conclude that Campbell has not shown that he was prejudiced by the challenged questions and remarks. The Court takes this opportunity to remind prosecuting attorneys of the provision of Rule 3.4(e) of theMontana Rules of Professional Conduct prohibiting a lawyer from stating in trial a personal opinion as to the guilt or innocence of an accused.

Was the flight instruction given by the District Court erroneous? TheDistrict Court instructed the jury, at InstructionNo. 20: Ifyou are satisfied that the crime charged in the informationhasbeen committedby someone, then you may take into consideration any testimony showing, or tending to show, flight by the defendant. This testimony may be considered by the jury as a circumstance tending toprove a consciousness of guilt,but is not sufficient of itself to prove guilt. The weight to be given such circumstance and significance, if any, to be attached to it are matter [sic] for the jury to determine. Campbell argues that the court failed to instruct the jury on motives fordeparture inconsistentwith consciousnessof guilt. He asserts that his leaving Dillon on August 4 can be explained byhis transient lifestyle. Hemaintains that the court should have used his offered flight instruction instead of the one offered by the State. The flight instruction given the jury was taken from the Montana Criminal Jury Instructions (1983). Itaccurately reflects the law. See State v. Burk (Mont. 1988), 761 P.2d 825, 828, 45 St-Rep.1777, 1782. The instruction would have allowed the jury to find that Campbellls August 4bus trip did not show flight. We hold that the flight instruction given was not erroneous. Affirmed.

We concur:

Justices