DA 06-0789

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 343

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

WILLIAM FLYNN LONGFELLOW,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. CDC-05-102

Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Meghan Lulf Sutton,

Law Office of Meghan Sutton, Great Falls, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General; John 

Paulson, Assistant Attorney General, Helena, Montana

Brant Light, Cascade County Attorney; Susan Weber and Joel

Thompson, Deputy County Attorneys, Great Falls, Montana

Submitted on Briefs: June 11, 2008

 Decided: October 9, 2008 

Filed:

__________________________________________

Clerk

October 9 2008
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Chief Justice Karla M. Gray delivered the Opinion of the Court.

 

¶1 William Flynn Longfellow appeals from the judgment entered by the Eighth Judicial 

District Court, Cascade County, upon a jury verdict convicting him of the felony offense of 

sexual intercourse without consent. We affirm.

¶2 The restated issues on appeal are:

¶3 1. Did the District Court abuse its discretion by determining W.G., a developmentally 

disabled woman, was competent to testify?

¶4 2. Did the District Court abuse its discretion by denying the defense’s motion for a 

mistrial based on prosecutorial misconduct?

BACKGROUND

¶5 The State of Montana charged Longfellow by amended information with the 

alternative felony charges of sexual intercourse without consent and attempted sexual 

intercourse without consent. The State alleged, among other things, that Longfellow 

digitally penetrated the vagina of W.G., a developmentally disabled woman. 

¶6 On Longfellow’s motion, the District Court held a pretrial hearing regarding W.G.’s 

competency to testify. At the hearing, the court heard testimony from W.G. and other 

witnesses, and admitted recordings and transcripts of W.G.’s interviews with a police 

detective and psychologist Dr. Bruce Frumkin into evidence. The court orally ruled W.G. 

was competent to testify; it subsequently entered a written order denying the defense’s 

request to disqualify her. The case proceeded to trial, and W.G. and other witnesses testified. 

¶7 The defense objected twice during the prosecution’s closing arguments, and the 
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District Court overruled both objections. Immediately after submission of the case to the 

jury, the defense moved for a mistrial. The District Court denied the motion. 

¶8 The jury convicted Longfellow of felony sexual intercourse without consent, and the 

District Court entered judgment and sentence. Longfellow appeals. 

STANDARDS OF REVIEW

¶9 We review a district court’s ruling on witness competency for abuse of discretion. 

See State v. Olson, 286 Mont. 364, 370, 951 P.2d 571, 575 (1997) (citation omitted). We 

also review a district court’s ruling on a motion for a mistrial for abuse of discretion. See 

State v. Ferguson, 2005 MT 343, ¶ 80, 330 Mont. 103, ¶ 80, 126 P.3d 463, ¶ 80 (citations 

omitted). 

DISCUSSION

¶10 1. Did the District Court abuse its discretion by determining W.G. was competent to 

testify?

¶11 Every person is competent to be a witness except as otherwise provided in the 

Montana Rules of Evidence. M. R. Evid. 601(a). A person is disqualified to be a witness if 

the court finds that (1) the person is incapable of expression concerning the matter so as to be 

understood by the judge and jury either directly or through interpretation by one who can 

understand the person or (2) the person is incapable of understanding the duty to tell the 

truth. See M. R. Evid. 601(b). 

¶12 At the pretrial hearing, the District Court orally reasoned, among other things, that

Longfellow had failed to establish that W.G. was incapable of expression concerning the 

matter so as to be understood; psychiatrist Dr. William Stratford could not state W.G. did not 
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understand the duty to tell the truth based on Frumkin’s report or otherwise; W.G.’s 

statements “did not seem to be particularly inconsistent as to the basic allegation here”; and 

W.G.’s interview statements and hearing testimony established she understood her 

responsibility to tell the truth and the difference between the truth and a lie. The court also 

observed the proposition that inconsistencies go to witness credibility rather than 

competency, and stated that proposition was “not overcome . . . by the consistency issues 

that have been raised here, her weak IQ and susceptibility to suggestion, the fact that a 

retarded person would have a less accurate memory are not persuasive [sic].” Longfellow 

does not mention any of this reasoning on appeal. 

¶13 Acknowledging that determinations of witness credibility are within the province of 

the jury, Longfellow asserts that W.G.’s statements were inconsistent. He argues that the 

consistency of a witness in reporting an event is crucial in determining his or her competency 

to testify, and advances State v. A.D.M., 216 Mont. 419, 701 P.2d 999 (1985), and State v. 

Eiler, 234 Mont. 38, 762 P.2d 210 (1988), in support of his position. 

¶14 In A.D.M., the issue was whether a young girl’s testimony was sufficient, without 

corroboration, to support the defendant’s conviction of felony sexual assault. We observed 

that Montana law does not require corroboration of a victim’s testimony in a sexual assault 

case. We then discussed prior cases regarding the competency of child witnesses, 

determined the girl’s testimony was consistent with her prior reports and a psychologist’s 

testimony, and concluded she was competent to testify. We also stated the defendant’s 

arguments went to the weight or credibility of the testimony. A.D.M., 216 Mont. at 421, 701 
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P.2d at 1000. 

¶15 In Eiler, the appellant asserted a child witness was not competent to testify and 

pointed to her inability to remember certain details of the alleged acts. We cited to A.D.M. 

after concluding the consistency of the child’s testimony and reports, along with a doctor’s 

supporting testimony, demonstrated her capacity to remember the occurrence and her ability 

to relate her impressions. Eiler, 234 Mont. at 42-43, 762 P.2d at 213. Noting our prior 

holding that inconsistencies regarding perception of location do not affect the competency of 

a witness, we then determined that the rephrasing of questions regarding a timeframe 

alleviated the child’s difficulties in answering. Eiler, 234 Mont. at 43, 762 P.2d at 213-14 

(citing State v. Phelps, 215 Mont. 217, 226, 696 P.2d 447, 453 (1985)). We also stated that 

inconsistencies go to credibility, a matter decided by the jury. Eiler, 234 Mont. at 43, 762 

P.2d at 214 (citations omitted).

¶16 Longfellow asserts W.G. was “far less consistent” than the witnesses in A.D.M. and 

Eiler, although his discussion of those cases’ facts consists of rather scant assertions that the 

reports and testimony of the witness in each case were consistent and supported by another 

witness. He also sets forth a number of W.G.’s asserted inconsistencies in the “statement of 

facts and case” portion of his brief, but presents no developed argument that those 

inconsistencies—as opposed to the inability of the witness to recall details in Eiler—render a 

witness incompetent to testify. Nor, as mentioned above, does he address the District 

Court’s determination that W.G.’s statements were not particularly inconsistent with respect 

to the “basic allegation.” We agree with Longfellow that W.G.’s statements were not 
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altogether consistent. We reject, however, Longfellow’s assertion that these inconsistencies 

bear on an evidentiary question regarding W.G.’s competency to testify rather than a jury 

question regarding her credibility. 

¶17 Next, Longfellow advances Olson, 286 Mont. at 370, 951 P.2d at 575, and that case’s 

citation to Eiler, in positing that, to be competent, a witness must understand the duty to tell 

the truth. In the “statement of facts and case” portion of his brief, Longfellow sets forth 

some of W.G.’s responses to questions regarding the truth and lies. In his argument, 

Longfellow points to other such responses and asserts Frumkin was concerned regarding 

W.G.’s conception of the truth because Frumkin believed W.G. was suggestible and likely to 

“mirror” statements to please others. Longfellow also asserts W.G. was “coached” and 

sought to please the female prosecutor in this case.

¶18 The appellant bears the burden of establishing error, and must cite to legal authority to 

meet that burden. See State v. Hicks, 2006 MT 71, ¶ 22, 331 Mont. 471, ¶ 22, 133 P.3d 206, 

¶ 22 (citation omitted). Absent authority or developed argument, we decline to address 

Longfellow’s apparent assertion that Frumkin’s opinions regarding suggestibility and 

mirroring render a witness unable to appreciate the duty to tell the truth or otherwise 

incompetent. We also conclude, absent argument to the contrary, that some of W.G.’s 

hearing testimony—that lying is a “[b]ad thing” and her correct responses that certain 

statements were true and others were lies—are similar to the testimony at issue in Olson and 

Eiler, wherein we affirmed district courts’ determinations that the witnesses understood the 

duty to tell the truth. See Olson, 286 Mont. at 371, 951 P.2d at 575; Eiler, 234 Mont. at 44-
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45, 762 P.2d at 214-15. Moreover, we observe again that Longfellow totally ignores the 

District Court’s reasoning which, by its terms, addressed these matters. 

¶19 We decline to address Longfellow’s assertion that W.G. cried as soon as she took the 

stand and “fell apart” when questioned by defense counsel at the competency hearing, 

because Longfellow advances no authority suggesting these factors bear on witness 

competency. See Hicks, ¶ 22. We also decline to consider Longfellow’s arguments 

regarding W.G.’s trial testimony in reviewing the District Court’s pretrial competency 

determination. Finally, we do not address Longfellow’s Confrontation Clause arguments, in 

light of our longstanding rule that we generally do not address issues raised for the first time 

on appeal. See State v. Rahn, 2008 MT 201, ¶ 22, 344 Mont. 110, ¶ 22, 187 P.3d 622, ¶ 22 

(citation omitted).

¶20 We hold the District Court did not abuse its discretion in determining W.G. was 

competent to testify.

¶21 2. Did the District Court abuse its discretion by denying the defense’s motion for a 

mistrial based on prosecutorial misconduct?

¶22 Toward the end of the State’s initial closing argument, the following exchange 

occurred between the prosecutor, defense counsel and the trial court: 

MS. WEBER: The defendant’s case is based purely on speculation and 

trickery. They [apparently referring to defense counsel and Frumkin] have 

shown very succinctly that they can trick a retarded girl.

MR. VAN DER HAGEN: Your Honor, I’m objecting at this point; that’s 

inappropriate and also that violates due process clause of the constitution and 

federal constitution.

MS. WEBER: It’s argument, Your Honor.
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THE COURT: Overrule the objection.

MS. WEBER: Thank you. They can trick a retarded girl. Now they have to 

trick you.

The defense objected again during the prosecution’s rebuttal closing argument:

MS. WEBER: Their entire defense is based upon the experts that you heard 

testify. You saw how vulnerable [W.G.] was on that witness stand. They tried 

to trick her. They tried to confuse her. They tried to take advantage of her 

disabilities just like the defendant did on March 3rd of 2005. And, again, the 

only suggestions that were made were those from Mr. van der Hagen and Dr. 

Frumkin.

The reason the defendant picked [W.G.] as his victim is the same 

reason they are claiming she can’t be believed; she’s retarded. You can’t 

believe her, she’s retarded. Reject that, ladies and gentlemen. Reject it 

outright. Don’t let them get away with it. Don’t allow this type of a defense 

to be effective in our town. Send a message to everyone out there that all the 

members of our community—

MR. VAN DER HAGEN: Your Honor, I object to this.

THE COURT: Overruled.

MS. WEBER: —mentally retarded, physically handicapped or otherwise will 

be protected. I’m confident that you will do the right thing, that you will do 

what’s just, that you will make the only decision that fits the facts and the law. 

 I’m confident that you will find William Longfellow guilty.

¶23 Immediately after the jury was excused to deliberate, defense counsel moved for a

mistrial:

MR. VAN DER HAGEN: Your Honor, I move for a mistrial based on the 

statements of counsel’s made [sic] using trickery. I think that, that’s an 

inappropriate comment on counsel, violates the due process clause of the 

Montana Constitution, the Federal Constitution. I think it’s also reversible 

error and I think she also went over the top when she charged them to send a 

message to the community. I think that’s grounds for a mistrial.

THE COURT: Miss Weber.
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MS. WEBER: Your Honor, this was all in argument. We’re entitled to argue 

the facts that have been presented to the jury. The facts that were presented is 

that whatever suggestion that he want [sic] to talk about came through Mr. van 

der Hagen and the doctor from Florida and I was simply arguing that. I’m 

allowed to use the wording that I think is appropriate. And I believe that 

trickery is absolutely appropriate under the circumstances and we have every 

right to charge the jury to do what is right under the law based upon the facts 

that they’ve been given.

THE COURT: All right. Motion is denied. We’re in recess.

¶24 In addition to the statements set forth above, Longfellow discusses other aspects of 

the prosecutor’s conduct, including objections posed during the defense’s cross-examination

of W.G. and statements during closing arguments to which defense counsel did not object. 

Longfellow advances no authority for the proposition that an objection may constitute 

prosecutorial misconduct; thus, we do not address his objection-related assertions. See 

Hicks, ¶ 22. Moreover, while we consider an allegedly improper statement in the context of 

the entire closing argument, State v. Roubideaux, 2005 MT 324, ¶ 15, 329 Mont. 521, ¶ 15, 

125 P.3d 1114, ¶ 15 (citations omitted), we generally do not address issues of prosecutorial 

misconduct pertaining to a prosecutor’s statements not objected to at trial. See State v. Racz, 

2007 MT 244, ¶ 36, 339 Mont. 218, ¶ 36, 168 P.3d 685, ¶ 36. Indeed, we have only once 

granted a party’s request for plain error review of a prosecutorial misconduct issue, and we 

have no such request before us here. See State v. Hayden, 2008 MT 274, ¶¶ 29-33, 345 

Mont. 252, ¶¶ 29-33, 190 P.3d 1091, ¶¶ 29-33. Thus, we do not address as stand-alone 

arguments Longfellow’s assertions regarding matters other than the statements during 

closing arguments to which the defense objected at trial. 
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¶25 Prosecutorial misconduct is determined by reference to established norms of 

professional conduct. To demonstrate the trial court abused its discretion in denying a 

motion for a mistrial based on alleged prosecutorial misconduct, the defendant must show 

that the prosecutor engaged in misconduct and that the prosecutorial misconduct violated his 

substantial rights; this Court will not presume prejudice. See State v. Duffy, 2000 MT 186, ¶ 

35, 300 Mont. 381, ¶ 35, 6 P.3d 453, ¶ 35 (citations omitted).

¶26 With respect to whether the prosecutor engaged in misconduct, Longfellow 

acknowledges a prosecutor may comment during closing argument on conflicts and 

contradictions in testimony, and may comment on the evidence and suggest reasonable 

inferences the jury may draw from the evidence. See e.g. State v. Raugust, 2000 MT 146, ¶ 

43, 300 Mont. 54, ¶ 43, 3 P.3d 115, ¶ 43 (citation omitted). He asserts, however, that we 

strongly disapproved of prosecutors’ characterizations of witness testimony as untruthful in 

Ferguson, ¶ 82, and State v. Arlington, 265 Mont. 127, 157-58, 875 P.2d 307, 325 (1994). 

He also argues that the prosecutor violated Rule 3.4(e) of the Montana Rules of Professional 

Conduct, which states in part that a lawyer shall not “in trial . . . state a personal opinion as to 

the justness of a cause, the credibility of a witness . . . or the guilt or innocence of an 

accused.” Longfellow asserts the prosecutor played to the jurors’ sympathies and advanced 

the justness of the cause by calling on them to “send a message” and stating she was 

confident the jurors would do what was “just.”

¶27 The State responds that the prosecutor’s “trickery” remarks may properly be 

characterized as comments on the evidence and reasonable inferences the jury could make 
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from the evidence. It also asserts, based on federal cases, that the “send a message” remark 

was a proper appeal to the jury to act as the conscience of the community because it was an 

isolated remark that was not designed to inflame the jury. In addition, the State asserts the 

“send a message” remark was consistent with the District Court’s jury instruction that the 

jury was not to be governed by sentiment, conjecture, sympathy, passion, prejudice, public 

opinion or public feeling. 

¶28 It is not entirely clear whether Longfellow advances the “comments on 

untruthfulness” portions of Ferguson and Arlington in relation to the prosecutor’s “trickery” 

remarks, as opposed to her other comments made without objection—which, as discussed 

above, we do not address. In any event, the record reflects that, in an apparent attempt to 

demonstrate W.G.’s suggestibility, both Frumkin’s pretrial interview and defense counsel’s

cross-examination of W.G. at trial included questions positing incorrect facts, to which W.G. 

sometimes responded affirmatively. On this record and absent developed argument, we are 

not convinced that the prosecutor’s “trickery” remarks necessarily related to the truthfulness 

of any witness. With regard to the “send a message” and “just” remarks, Longfellow’s only 

relevant authority is the above-mentioned Rule 3.4(e) and, having failed to file a reply brief, 

he does not address the State’s arguments or federal authorities to the effect that “send a 

message” comments and appeals to act as the conscience of the community are not improper. 

We conclude Longfellow has not established the prosecutor engaged in misconduct; thus, we 

need not address his assertions of prejudice. See Duffy, ¶ 35.

¶29 We hold Longfellow has failed to establish an abuse of discretion in the District 
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Court’s denial of his motion for a mistrial based on prosecutorial misconduct. 

¶30 Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

/S/ BRIAN MORRIS