No. 91-480 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, plaintiff and Respondent, -vs- 

# MAY21'11992 DEAN J. GOETTLE, Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial ~istrict, In and for the County of Gallatin, The Honorable ThomasA. Olson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Brian P. Fay, Bozeman, Montana 

### For Respondent: Hon.MarcRacicot, AttorneyGeneral,Helena,Montana John Paulson,Assistant Attorney General,Helena A. Michael Salvagni, County Attorney; Gary Balaz, Deputy and Gerry Higgins, Deputy, Bozeman, Montana

Submitted 

### on Briefs: April 30, 1992 Filed:Chief Justice J, A. Turnage delivered the Opinion of the 

### Court. Dean J. Goettle appeals a sentence and judgment of the Eighteenth Judicial District, 

### alla at in County, which denied his motion for a new trial. We affirm. The issue 

### is whether the District Court abused its discretion by denying Goettle'smotion foranewtrialbased on a commentmade by the prosecution during closing argument. On June 25, 1991, a jury found Goettle guilty of criminal endangerment and criminal mischief in connection with an incident that involved

### two gun shots fired atthe~lpine Sinclair Station in Bozeman, Montana. On July 3, 1991, Goettle moved the District Court fora 

### new trial based on a commentmade by the deputy county attorney during closingargument. This comment called attentionto the fact that Goettle's wife did not testify in support of his alibi defense. 

### Ina 

### sentence and

### judgment dated

### August 12, 1991,

### theDistrict Court denied Goettle's motion for a new trial. From this sentence and judgment, Goettle appeals.

Did the District Court abuse 

### its discretion by denying Goettle's motion for a new trial based on a comment made by the prosecution during closing argument? 

### Inclosingargument to the jury,adeputy county attorneymade the following comment:Now, there 

### is something that 

### Iwondered abouthere. 

### And that is, that we were told in the defense's opening statement that Pam Goettle, the defendant's wife, was going to testify and 

### we would hear from her as to what went on. But that didn't happen. Goettlelscounsel objected to this comment as improper and the District Court sustained the objection. Goettlelscounsel then moved that the comment be stricken and the ~istrict 

### Court granted thismotion. Later, the ~istrict Court issued the 

### jury a 

### curative instruction regarding the comment. Following the trial, Goettle moved for and the ~istrict Court denied Goettle a new trial based
on this comment. Goettle argues that 

### this comment was improper and cannot be considered harmless 

### error. The State argues that 

### this comment was an invited and appropriate response to the lack of evidentiary support to Goettlelsalibi defense and did not deprive him of a fair and impartial trial. Alternatively, the State argues that even if 

### the comment

### was improper, it

### was harmless error in light of the strong case presented 

### by the State against Goettle. Section 46-16-702, MCA, provides that 

### a district court 

### may grant a 

### new trial to a criminal defendant "if required in the interest of justice.'I The granting or denial of a new trial rests Ifwithinthe sound discretion of the trial court and should not be disturbed on appealunless an abuseof discretion is shown.I1 State


### v. Goodwin (lggl), 249 Mont. 1, 17, 813 P.2d 953, 963 (citation omitted).Following a review of the record,we hold that the District Court did not abuse its discretionwhen itdenied Goettle'smotion for a new trial. In the absence of any reference to Goettle's wife's testimony, the comment that she failed to testify does not appeardamaging to Goettle. Furthermore, any prejudice caused to Goettle from this comment was rendered harmless through the District Court's actions of sustaining Goettle's objection, granting Goettle's motion to strike, and issuing a curative instruction to the jury. We therefore affirm the ~istrict Court's sentence and judgment datcd August 12, 1991.

We concur: