No. 91-480 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

plaintiff and Respondent, 

-vs- MAY 2 1 '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 Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Brian P. Fay, Bozeman, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, 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's motion for a new trial based on a comment made 

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 at the ~lpine Sinclair Station in 

Bozeman, Montana. On July 3, 1991, Goettle moved the District 

Court for a new trial based on a comment made by the deputy county 

attorney during closing argument. This comment called attention to 

the fact that Goettle's wife did not testify in support of his 

alibi defense. 

In a sentence and judgment dated August 12, 1991, the District 

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? 

In closing argument to the jury, a deputy county attorney made 

the following comment: 
Now, there is something that I wondered about here. 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. 

Goettlels counsel objected to this comment as improper and the 

District Court sustained the objection. Goettlels counsel then 

moved that the comment be stricken and the ~istrict Court granted 

this motion. 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 Goettlels alibi 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 

Ifwithin the sound discretion of the trial court and should not be 

disturbed on appeal unless an abuse of 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 discretion when it denied Goettle's motion 

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 

appear damaging 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: