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 

1 

CU .- - 7 * ,, ) 

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

c: , cl (1~ - February 14, 1990 

L. i 

-. I 

~i~edG :, -: 

c*-8 . * 

it.! .J-+ 

LIE:: 

- # 

c-3 .- - 

c. 2 c3 -- 4 e -- Clerk 
Chief 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 the District Court err in denying Campbell's requested 

instruction on flight? 

On the afternoon of August 4, 1988, a body was found near the 

railroad tracks just north of Dillon, Montana. The victim had 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 included a fractured nose, fractures of both the upper 

and lower jaws, a deep laceration of the jaw, bruised lips and 

eyes, swollen nose 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 of 
August 5, the pathologist estimated the victim had been dead one 

to two days. 

The State's case against Campbell was based on circumstantial 

evidence. The evidence at trial showed that Campbell had been seen 

with the victim in and around Dillon for several weeks prior to the 

homicide. Campbell testified that he had 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 91 north of Dillon. 

The State presented evidence at trial that on August 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's body was later found. That night, Campbell rented a motel 

room in Dillon. The next morning he purchased a bus ticket and 

went to Idaho Falls, Idaho. 

In Idaho Falls, Campbell Iflived it up1' for several days. He 

checked into the Quality Inn, where he stayed for four nights. He 
went out for fast food. In addition to buying six-packs or twelvepacks of beer in grocery stores, he drank mixed drinks in bars, at 

one of which he exhibited a large sum of cash and bought a round 

of drinks for the house. On August 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 articles of his clothing were 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 evidence produced 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 revealing the victim's identity were 

found in a fire ring near where the body was found. 

Campbell relied on an alibi defense, claiming that he had not 

been at the scene of the homicide on August 4. In his testimony, 

he described in detail his activities during 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 he had 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 by 
the State and denied traveling with, camping with, staying in the 

motel with, or visiting the welfare 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 expressed his personal 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 that you made 

$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 I never 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 attorney continued with another question and never received 

an answer to the last question above. 

Campbell cites State v. Armstrong (1980), 189 Mont. 407, 616 

P.2d 341. In that case, the prosecutor began writing ffliesu or 

"liarn on a chalkboard as he cross-examined the defendant. 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. 

Unlike Armstronq, in the present case the county attorney did 

not characterize anyone as a liar. He asked the defendant to 

characterize someone as a liar. The rationale in Armstronq 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." 
State v. Rhys (1909), 40 Mont. 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's characterization of him, 

in closing argument, as a liar. No objection was made to the first 

characterization, in which the county attorney explained his long 

cross-examination of Campbell as the only way to expose a "pathological liar. During defense counsel s closing argument, he said 

that Campbell was ''not the type of man who's just going to come in 

here and make up a story to cover for himself .I1 Campbell's counsel 

also stated in his closing argument that Campbell was 'Ithe most 

candid witness we've had, or at least at the top of the heap." 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 argues that he had a continuing objection from his 

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 objection was 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 of 
him during its closing argument. We have held that no error may 

be claimed where the prosecutor'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 improperly gave his personal 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 office wants to do is convict an innocent 

man. 

Defense counsel objected and was overruled. The county attorney 

continued: 

But the second to the last thing that we want 

to do is turn a guilty man loose. I ask you, 

ladies and gentlemen of the jury, don't turn 

this man loose. Look at the evidence, look at 

what we've shown. The inescapable conclusion, 

who done it? Jack Lee Campbell. Thank you. 

The law on prosecutorial comments about the guilt of an 

accused has been described as follows: 

It has been 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 evidence which 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 jurors1 minds without directly 
expressing the prosecutor's personalized views 

as such. In those instances in which a prosecutor's personalized argument has been considered misconduct, it has occasionally been 

reasoned that the expression of the prosecutor's knowledge of, 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 the more practical and substantial reasons for considering a 

prosecutor's personalized argument improper 

are that the prosecutor's expression of his 

own views injects into the case irrelevant and 

inadmissible matters or a fact not legally 

proved by the evidence, and adds to the probative force of the testimony adduced at the 

trial the weight of the prosecutor's personal, 

professional, or official influence. Thus, 

there are several different theoretical bases 

underlying the rules concerning the propriety 

of a prosecutor's personalized argument. . . 

Annotation, Propriety and Prejudicial Effect of Prosecutor's 

Argument to Jury Indicating His Belief or Knowledge as to Guilt of 

Accused--Modern State Cases, 88 A.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 statement by the prosecuting attorney was challenged: 

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 this testimony, I'm convinced that 

Musgrove is a liar and he is responsible. 

Musqrove, 582 P.2d at 1252. 

This Court reasoned that 

The first statement of the prosecutor that we 

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 therefore highly 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 the county attorney s remarks in closing 

argument do not constitute reversible error. 

Finally, Campbell argues that he was denied a fair trial based 

on the cumulative effect of the cross-examination and closing 

argument discussed above. While Montana recognizes that the 

accumulation of errors may prejudice a defendant's right to a fair 

trial, mere allegations of error without proof of prejudice are 

inadequate to satisfy the doctrine. State v. Grant (1986), 221 
Mont. 122, 137, 717 P. 2d 562, 572. In this case, the prosecution's 

challenged remarks and 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 the Montana 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? 

The District Court instructed the jury, at Instruction No. 20: 

If you are satisfied that the crime charged in 

the information has been committed by 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 to prove 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 for departure inconsistent with consciousness of guilt. He 

asserts that his leaving Dillon on August 4 can be explained by 
his transient lifestyle. He maintains 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). It accurately 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 4 bus trip did not show flight. We 

hold that the flight instruction given was not erroneous. 

Affirmed. 

We concur: 

Justices