                                                                                          October 17 2013


                                          DA 11-0366

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2013 MT 308



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

NEVADA R. UGALDE,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DC 09-344
                       Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Gregory D. Birdsong; Birdsong Law Office, PC; Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant
                       Attorney General; Helena, Montana

                       Scott Twito, Yellowstone County Attorney; Juli M. Pierce, Deputy
                       Yellowstone County Attorney; Billings, Montana



                                                   Submitted on Briefs: July 10, 2013
                                                              Decided: October 17, 2013


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.



¶1    Nevada Ugalde appeals her conviction by a jury in the Thirteenth Judicial District

Court of aggravated assault, a felony. We consider the following issues on appeal:

¶2    1.     Whether the District Court should have dismissed the charges against
Ugalde when, after Ugalde disclosed information and defense strategies to the State
Medical Examiner, communication occurred between the Medical Examiner and the
Yellowstone County Attorney.

¶3     2.    Whether Ugalde is entitled to a new trial on the ground that the State’s
witnesses were unnecessarily cumulative or unfairly prejudicial to Ugalde.

¶4    3.     Whether Ugalde is entitled to a new trial on the ground that the
prosecution presented prejudicial victim impact testimony.

¶5    4.    Whether Ugalde is entitled to a new trial on the ground of prosecutorial
misconduct during closing argument.

¶6     5.      Whether Ugalde is entitled to a new trial because her counsel provided
ineffective assistance.

¶7    We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶8    On the morning of June 11, 2008, Nevada Ugalde placed several urgent phone

calls to Susan Napier, the mother of the child she was babysitting. Through tears, Ugalde

told Napier that the child, I.N., had fallen from the crib and expressed concern about the

way he was acting and breathing.

¶9    Napier did not have a vehicle with her, so she began walking toward Ugalde’s

home. Meanwhile, Ugalde called her husband and told him about I.N.’s condition.

Ugalde’s husband asked or told her to “Call 911,” hung up the phone, left his workplace,


                                            2
and began driving home. On the way, he spotted Napier walking on the side of the road

and stopped to pick her up. They arrived at the Ugalde home together, approximately

thirty minutes after the initial phone call between Ugalde and Napier. Ugalde never

called 911.

¶10    Ugalde handed I.N. to Susan at the front door. I.N.’s eyes were nearly closed and

he was barely breathing. Ugalde’s husband took Susan and I.N. to the emergency room

at the Billings Clinic.

¶11    In the emergency room, Dr. Curtis Lee discovered multiple injuries to I.N.’s head

and internal bleeding. Dr. Linda Johnson, a general practice pediatrician, and Dr. Eugen

Dolan, a neurosurgeon, were called in to assist with I.N.’s care. Dr. Johnson helped

identify and reduce immediate problems with intracranial pressure.            Dr. Lee and

Dr. Dolan decided to fly I.N. to a children’s hospital in Denver for additional treatment.

¶12    Since the incident, I.N. has undergone extensive physical, speech, and

occupational therapy. I.N. suffered hearing loss and visual impairments requiring several

surgeries. The State’s professional witnesses believed the injuries were inconsistent with

simply falling from a crib to a carpeted floor.

¶13    Several people involved with I.N.’s treatment reported the incident to law

enforcement pursuant to mandatory reporting obligations. On June 29, 2009, the State

filed an Information charging Ugalde with aggravated assault in violation of § 45-5-202,

MCA (2007). The Information alleged that Ugalde purposely or knowingly “shook or

slammed” I.N. on June 11, 2008, causing serious bodily injury. Ugalde entered a plea of



                                              3
not guilty and received a public defender. Due to a conflict, Ugalde was appointed new

counsel on July 2, 2009.

¶14    Ugalde’s counsel decided she would need to retain a pathologist as an expert. To

that end, she consulted with Eric Olsen, coordinator for resource allocations to contract

counsel for the Office of the Public Defender [OPD], to comply with the OPD’s internal

policy that requires approval for any expenses over $200.

¶15    After voicing concerns about funding, Olsen explained that he was “not inclined to

approve the request” and instead put Ugalde in contact with Dr. Gary Dale, the State

Medical Examiner at the State Crime Lab. Ugalde could consult Dr. Dale without charge

due to an agreement between the OPD and the State Crime Lab.

¶16    Under the impression that her communications would be kept confidential,

Ugalde’s counsel spoke with Dr. Dale. Dr. Dale remarked that the State’s identification

of Dr. Thomas Bennett as an expert in the case surprised him, in part because he knew

the State already was aware of potential problems with using Dr. Bennett in child abuse

cases. Dr. Dale recommended Dr. Mary Case as an independent expert for the defense.

Dr. Dale never signed a written agreement with the public defender’s office or with

Ugalde’s counsel. Nor apparently did he discuss with defense counsel any agreement to

maintain confidentiality.

¶17    After concluding that his involvement with Ugalde was “terminated,” Dr. Dale

telephoned Dennis Paxinos, the Yellowstone County Attorney, and discussed what he

perceived as problems with the use of Dr. Bennett as an expert in this case. Dr. Dale

warned against using Dr. Bennett as a witness, though he indicated that he agreed with

                                            4
Dr. Bennett’s conclusion that the injuries were inconsistent with an accidental cause.

Paxinos later related the information obtained from Dr. Dale to the prosecutor handling

the case.

¶18    On November 25, 2009, Ugalde filed a motion to dismiss the charge for alleged

violations of confidentiality and due process. Ugalde argued that by revealing defense

information and strategy to Paxinos, Dr. Dale violated a duty to keep his consultation

with Ugalde’s counsel confidential. In addition, Ugalde’s motion alleged interference

with the attorney-client relationship in violation of the Sixth Amendment and a violation

of the right to effective assistance of counsel.

¶19    The District Court denied the motion to dismiss on March 16, 2010, concluding

that Dr. Dale owed the defense no duty of confidentiality and that the proper remedy in

any event would be disqualification of the witness—not dismissal of the Information.

The court rejected Ugalde’s due process violation and Sixth Amendment arguments.

Finally, the court concluded that these facts did not demonstrate ineffective assistance of

counsel.

¶20    Trial commenced on April 19, 2010, and lasted five days.          The State listed

twenty-two anticipated witnesses in its trial brief and called eighteen witnesses at trial.

One witness for the State, Dr. Smith, was added fourteen days before the trial began.

¶21    On the first day of trial, Ugalde objected to the State’s plan to call more than ten

witnesses, especially the wide range of experts called to establish the element of serious

bodily injury. Ugalde’s counsel argued that the parade of witnesses was unnecessary,



                                               5
cumulative, and could serve only to generate hostility toward Ugalde and sympathy for

the victim.

¶22      In response, the court asked if Ugalde would stipulate to the element of serious

bodily injury and thereby remove the State’s obligation to prove that required element of

the offense. Ugalde’s counsel indicated that she was not comfortable stipulating to

serious bodily injury. The court stated, “Then I think the State has to prove it.” The

court overruled each of Ugalde’s many subsequent objections to cumulative testimony

throughout the trial. In total, the State called approximately eleven witnesses over the

next three-and-a-half days to testify to various aspects of the injuries to I.N.

¶23      The theory of the defense was that I.N. fell from the crib at Ugalde’s home.

Ugalde called two expert witnesses: Dr. Kenneth Monson, a biomechanical engineer,

who testified that the injuries could have been caused by a short accidental fall, and

Dr. John Plunkett, a pathologist, who explained that a short fall could cause this

constellation of injuries. Dr. Plunkett also testified about a growing skepticism to shaken

baby     syndrome    in   certain sections    of   the   medical community—particularly

biomechanical engineers and, increasingly, pathologists. Lisa Justis, a social worker,

testified about I.N.’s ability to pull himself up to a position where falling from the crib

was possible, and Ugalde also testified on her own behalf. In its closing argument,

defense counsel emphasized that, despite the surfeit of expert witnesses, the State could

not eliminate the possibility of an accidental cause of the injuries beyond a reasonable

doubt.



                                              6
¶24    On April 23, 2010, a unanimous jury found Ugalde guilty of aggravated assault.

The District Court sentenced her to twenty years, with five suspended, and ordered her to

pay $1,331,636.65 in restitution.

¶25    Following the trial, Ugalde filed a motion for a new trial or dismissal based on

Dr. Dale’s disclosure of confidential information to Paxinos, cumulative evidence, the

presentation of evidence previously ruled improper, and improper closing argument. The

District Court denied the motion. Ugalde appeals her conviction and the court’s denial of

her motion for a new trial.

                              STANDARD OF REVIEW

¶26    We review for abuse of discretion a district court’s denial of a motion for a new

trial. State v. Thorp, 2010 MT 92, ¶ 39, 356 Mont. 150, 231 P.3d 1096 (2010) (citing

State v. Makarchuk, 2009 MT 82, ¶ 14, 349 Mont. 507, 204 P.3d 1213).

¶27    This Court generally will “not address issues of prosecutorial misconduct

pertaining to a prosecutor’s statements not objected to at trial.” State v. Aker, 2013 MT

253, ¶ 21, 371 Mont. 491, __ P.3d __ (citing State v. Longfellow, 2008 MT 343, ¶ 24, 346

Mont. 286, 194 P.3d 694). “We may review such an issue, however, under the plain error

doctrine.” Aker, ¶ 21 (citing State v. Lacey, 2012 MT 52, ¶ 14, 364 Mont. 291, 272 P.3d

1288). The decision to invoke plain error review is discretionary. Aker, ¶ 21.

¶28    “Only record-based ineffective assistance of counsel claims are considered on

direct appeal.” Aker, ¶ 22 (citing State v. Howard, 2011 MT 246, ¶ 18, 362 Mont. 196,

265 P.3d 606). “To the extent such claims are reviewable, ‘they present mixed questions

of law and fact that we review de novo.’” Aker, ¶ 22 (quoting Howard, ¶ 18.)

                                            7
                                       DISCUSSION

¶29 1. Whether the District Court should have dismissed the charges against Ugalde
when, after Ugalde disclosed information and defense strategies to the State Medical
Examiner, communication occurred between the Medical Examiner and the Yellowstone
County Attorney.

¶30    On appeal, Ugalde argues her client confidentiality, work product privileges, and

due process rights were violated when Dr. Dale, the State Medical Examiner, disclosed

information obtained from a confidential consultation with defense counsel to Dennis

Paxinos, the Yellowstone County Attorney. She also argues that Paxinos engaged in

prosecutorial misconduct by communicating with Dr. Dale and relaying the information

to the State’s prosecuting attorney.

       A. Client Confidentiality

¶31    The District Court did not abuse its discretion in holding that the conduct of

Dr. Dale and Paxinos did not entitle Ugalde to dismissal of the information or a new trial.

“Because it is a drastic step, dismissing an indictment is a disfavored remedy.” U.S. v.

Rogers, 751 F.2d 1074, 1076 (9th Cir. 1985).

¶32    A defendant’s “access to expert assistance is a crucial element in assuring a

defendant’s right to effective legal assistance, and ultimately, a fair trial.” Hutchinson v.

People, 742 P.2d 875, 881 (Colo. 1987). The confidentiality of experts “is a crucial

element in the effective legal representation of a defendant.” Hutchinson, 742 P.2d at

882.   The District Court correctly recognized, however, that when this duty of

confidentiality is breached, the proper remedy is to disqualify the expert. In re Mitchell,

981 P.2d 172, 175 (Colo. 1999) (citing Wang Laboratories, Inc. v. Toshiba Corp., 762


                                             8
F. Supp. 1246 (E.D. Va. 1991), rev’d in part on other grounds); see Rogers, 751 F.2d at

1079 (“If, in fact, Miller revealed a confidential communication in violation of his ethical

obligations as an attorney, suppression of that evidence at trial is the appropriate

remedy.”).

¶33    In Hutchinson, the Colorado Supreme Court reversed a conviction on the ground

that the prosecution should not have been permitted to call a defense-retained

handwriting expert in its case-in-chief.      Hutchinson, 742 P.2d at 876. Unlike in

Hutchinson, the expert at issue here, Dr. Dale, was never called to the stand and offered

no testimony.

¶34    In Ugalde’s brief in support of her motion to dismiss, she argued that if the test for

a breach of confidentiality by a non-attorney expert is met, “disqualification of the expert

is compelled.” Her brief further noted that “[t]he policy of excluding an expert who has

received this type of information is due to the fact that it is difficult to determine

conclusively what impact such information may have on the expert’s analysis or

subsequent testimony.”

¶35    Ugalde argues on appeal that the alleged breach of confidentiality here warrants a

new trial or dismissal of the action. Her brief points out that, “[b]ecause Dr. Dale is not a

retained expert for the prosecution in this matter, exclusion is not a remedy for his

actions.” But, as the District Court recognized, this does not mean that dismissal is

appropriate. See U.S. v. Morrison, 449 U.S. 361, 364-65, 101 S. Ct. 665, 668 (1981)

(“[A]bsent demonstrable prejudice, or substantial threat thereof, dismissal of the

indictment is plainly inappropriate, even though the violation may have been

                                             9
deliberate.”).1 To the contrary, the fact that Dr. Dale was not called as a witness means

that the type of harm against which exclusion is meant to protect never occurred here in

the first place.

¶36    “The trial court has discretion to grant a criminal defendant a new trial but may do

so only if required in the interests of justice.” State v. Billedeaux, 2001 MT 9, ¶ 23, 304

Mont. 89, 18 P.3d 990; § 46-16-702(1), MCA. The court’s decision to deny a new trial

must be justified by the law and the weight of the evidence. Billedeaux, ¶ 23; § 46-16-

702(3), MCA. Ugalde relied on an unspoken—and ultimately misguided—assumption

that her communications with Dr. Dale were confidential. The record shows that the

prosecution already knew of the problems surrounding Dr. Bennett. Dr. Dale sent a letter

on December 9, 2005—a considerable time before this case was filed—informing the

Montana County Coroners and County Attorneys of Dr. Bennett’s problematic history.

Ugalde was not affected by Dr. Dale’s disclosure of his ultimate opinion that Ugalde

intentionally harmed I.N. because this opinion never reached the jury. Thus, we agree

with the District Court that the evidence presented here does not warrant dismissal of the

information or a new trial.

       B. Work-Product Privilege

¶37    Ugalde argues that “[Dr.] Dale’s disclosures violated work-product privilege,

resulting in unfair and irremediable prejudice to her case.” The work-product doctrine

protects against the disclosure of “the mental processes of an attorney, providing a


1
 There is nothing in the record here to suggest that there was a deliberate violation of any
confidentiality agreement.
                                            10
privileged area within which [the attorney] can analyze and prepare [a] client’s case.”

State v. Miller, 231 Mont. 497, 513, 757 P.2d 1275, 1285 (1988) (citing U.S. v. Nobles,

422 U.S. 225, 238, 95 S. Ct. 2160, 2170 (1975)). “The reality of our legal system

demands that the embraces of the protection also extend to agents of the attorney.”

Miller, 231 Mont. at 513, 757 P.2d 1285.

¶38    Here, it is uncertain to what extent, if any, work product was disclosed. The

disclosure of Dr. Dale’s ultimate opinion regarding causation is irrelevant because he

never testified. Even if he had, his opinion necessarily would have been disclosed to the

State prior to his taking the stand. State v. Anderson, 211 Mont. 272, 280, 686 P.2d 193,

98 (1984) (citing State v. Hardy, 235 S.E.2d 828, 841 (N.C. 1977) (“The privilege is

certainly waived when the defendant or the State seeks at trial to make a testimonial use

of the work product.”)). Ugalde’s intention to impeach Dr. Bennett qualifies as work

product but it is unclear whether this intention was disclosed to Paxinos. It appears as

though Dr. Dale only discussed the problems with calling Dr. Bennett as a witness

generally, consistent with his previous letter. In essence, Ugalde argues that she was

prejudiced by the disclosure of facts already known to all parties, and the fact that she

was denied the chance to impeach an expert who never testified.         “The burden to

demonstrate an abuse of discretion is on the party seeking reversal of an unfavorable

ruling.” State v. Criswell, 2013 MT 177, ¶ 42, 370 Mont. 511, 305 P.3d 760. Ugalde has

not carried her burden of demonstrating that these facts warrant dismissal of the

information or a new trial.



                                           11
       C. Due Process

¶39    Ugalde alleges general due process violations resulting from Dr. Dale’s disclosure

of information to Paxinos pertaining to Dr. Bennett. “A district court may dismiss an

indictment where the government’s investigatory or prosecutorial conduct violates a

defendant’s due process rights.” U.S. v. King, 200 F.3d 1207, 1213 (9th Cir. 1999)

(citing U.S. v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991)). “To violate due

process, government conduct must be ‘so grossly shocking and so outrageous as to

violate the universal sense of justice.’” King, 200 F.3d at 1213 (quoting U.S. v. Restrepo,

930 F.2d 705, 712 (9th Cir. 1991)).           When the government’s investigatory or

prosecutorial conduct has violated a defendant’s right to due process, it is within the

district court’s discretion to dismiss an indictment. King, 200 F.3d. at 1213.

¶40    While the communications between Dr. Dale and Paxinos constitute government

action, Ugalde does not explain how a due process violation exists when a defendant

cannot impeach an expert witness who offers no evidence. Dr. Bennett was contacted

regarding this case at a relatively early stage. The State used his professional opinion in

the affidavit and motion for leave to file the Information. It may be, given the State’s

awareness of potential issues with Dr. Bennett testifying, that he was included simply to

consult regarding other experts.    Ugalde’s protestation that this is a “close case” is

unconvincing. Even if Ugalde had impeached Dr. Bennett regarding his expert opinion

that the injuries were not accidental, the harm to the State’s case was minimal because

Dr. Bennett’s opinion was shared by four other medical doctors who testified at trial.



                                            12
¶41    The District Court determined that the government conduct was not so outrageous

or shocking as to infringe Ugalde’s due process rights and we agree.

       D. Prosecutorial Misconduct

¶42    Ugalde argues that the District Court failed to consider “the prosecutorial

misconduct implicit in Dennis Paxinos[’s] actions.”2 Specifically, Ugalde argues that

Paxinos had “an absolute obligation to end the conversation and advise Dale of the

doctor’s obligation to keep the consultation with defense counsel confidential.”

¶43    A new trial may be granted “where the prosecutor’s actions have deprived [a]

defendant of a fair and impartial trial.” State v. Gray, 207 Mont. 261, 266-67, 673 P.2d

1262, 1265-66 (1983) (citations omitted).               This Court “measures prosecutorial

misconduct by reference to established norms of professional conduct.”                   State v.

Passmore, 2010 MT 34, ¶ 48, 355 Mont. 187, 225 P.3d 1229 (2010) (citation omitted).

¶44    In Passmore, the Court noted that the defendant “cited no cases or professional

standards” that supported his argument, and did not establish prejudice since the

defendant was not tried under a problematic Information. Passmore, ¶ 48. Ugalde

likewise cites no comparable cases or standards and fails to establish prejudice. Paxinos

knew very little about the case when called by Dr. Dale. Paxinos merely facilitated the

transfer of information that was either irrelevant or already possessed by the State. The

record does not show that Paxinos sought an unfair advantage or that he obtained one.

While we do not endorse the communications that occurred in this case, we conclude that


2
  We limit our analysis to Yellowstone County Attorney Paxinos’s conduct, since Ugalde
conceded in a brief that “the specific prosecutor in this matter obviously has clean hands . . . .”
                                                13
they did not deprive Ugalde of due process. The District Court did not err in denying

Ugalde’s motions for dismissal or a new trial on this issue.

¶45 2. Whether Ugalde is entitled to a new trial on the ground that the State’s
witnesses were not unnecessarily cumulative or unfairly prejudicial to Ugalde.

¶46    Ugalde argues that the sheer quantity of the State’s witnesses was unnecessary and

unfairly prejudiced the jury against her. Specifically, she claims the State called an

excessive number of expert witnesses to prove the element of serious bodily injury,

contending that “[a]ny of these witnesses would have been sufficient to establish that I.N.

suffered serious bodily injury.” The District Court disagreed, determining that the State’s

medical witnesses provided relevant information to the jury without needlessly presenting

cumulative evidence. The court observed that each witness testified within his or her

own medical specialty and held that although there may have been some overlapping

testimony, the evidence was “not nearly as ‘cumulative’ as the defendant claims.”

¶47    “Relevant evidence is generally admissible.” State v. Vandersloot, 2003 MT 179,

¶ 16, 316 Mont. 405, 73 P.3d 174 (citing M. R. Evid. 402). Cumulative evidence is

“additional evidence of the same character to the same point.” Section 26-1-102(4),

MCA. It is true that the “testimony of one witness is sufficient to prove a fact.” State v.

Merrick, 2000 MT 124, ¶ 13, 299 Mont. 472, 2 P.3d 242. However, cumulative evidence

will be deemed harmless “unless the record shows that the error was prejudicial.” State

v. Hansen, 1999 MT 253, ¶ 86, 296 Mont. 282, 989 P.2d 338 (1999) (quoting State v.

Carter, 285 Mont. 449, 459, 948 P.2d 1173, 1178-79 (1997)); § 46-20-701(1), MCA.

“Evidence is unfairly prejudicial when it ‘arouses the jury’s hostility or sympathy for one


                                            14
side without regard to its probative value.’” State v. Meredith, 2010 MT 27, ¶ 45, 355

Mont. 148, 226 P.3d 571 (citing State v. Schauf, 2009 MT 281, ¶ 41, 352 Mont. 186, 216

P.3d 740 (quoting State v. Bieber, 2007 MT 262, ¶ 59, 339 Mont. 309, 170 P.3d 444)).

¶48   Ugalde elected to require the prosecution to prove each element of the alleged

crime. The prosecution was not merely required to prove that serious bodily injury

occurred, but also that Ugalde caused the injuries. The court instructed the jury that the

State was required to prove serious bodily injury and causation as elements of the crime.

Ugalde argues that the State called only two witnesses to testify regarding causation. Yet

even the experts who only testified on the nature and extent of the injuries played a role

in proving whether I.N.’s injuries were caused by an accidental fall from a crib or

intentionally by some other means. Because Ugalde was the only other person present

when I.N. was injured and she presented expert testimony to support her claim that he

had fallen from his crib, the prosecution was required to present evidence of the nature

and seriousness of the injuries to show that they could not have been sustained from a

fall. Thorough review of the record reveals that it is often impossible to separate which

evidence went to the causation element and which went to the serious bodily injury

element; the extent of the injuries was a factor for the jury to consider in determining

both seriousness and causation.

¶49   The District Court reviewed the evidence and properly determined that the State

did not parade ten doctors before the jury to testify to the exact same point or offer

irrelevant evidence.   Ugalde made several objections at trial—some of which were

sustained—that the State’s experts were being asked to testify beyond their expertise.

                                           15
Ugalde would have the State walk a tightrope between presenting prejudicially

cumulative evidence and failing to call the correct experts to sufficiently explain these

complicated medical issues. While the State must stay within the bounds of the Rules of

Evidence, the path is nowhere near as narrow as the defense suggests here.

¶50    The District Court determined that this complicated case required the testimony of

the different experts and treatment providers to fully explain the cause and extent of the

injuries to the jury. We hold that the court’s determination was within its discretion.

¶51 3. Whether Ugalde is entitled to a new trial on the ground that the prosecution
presented prejudicial victim impact testimony.

¶52    Ugalde argues that much of the evidence presented against her was “victim impact

evidence,” citing to Armstrong v. State, 826 P.2d 1106, 1116 (Wyo. 1992), and U.S. v.

Copple, 24 F.3d 535, 545 (3d Cir. 1994). Victim impact evidence describes “the effect of

the crime on the victim and [the victim’s] family.” Payne v. Tennessee, 501 U.S. 808,

821, 111 S. Ct. 2597, 2606 (1991). If victim impact evidence is introduced that is “so

unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause

of the Fourteenth Amendment provides a mechanism for relief.” Payne, 501 U.S. at 825,

111 S. Ct. at 2608.

¶53    In Armstrong, the Supreme Court of Wyoming held that a prosecutor’s suggestion

during closing argument that he fought to keep out evidence of cocaine use “to prevent

another ordeal for the victim’s family” constituted harmless error. Armstrong, 826 P.2d

at 1116. In Copple, the U.S. Court of Appeals for the Third Circuit held that some victim

impact evidence was relevant to the issue of intent and therefore admissible, while other


                                             16
evidence regarding the amount of the victim’s losses was irrelevant and unfairly

prejudicial since the impact of the losses was not at issue in the case. Copple, 24 F.3d at

544-45.

¶54    On appeal, Ugalde offers no specific testimony as an example of improper victim

impact evidence. We find nothing here akin to the statement in Armstrong. Also, as the

District Court observed, the evidence presented here bears “little resemblance” to the

evidence in Copple. Here, the testimony of the State’s witnesses was relevant to proving

mental state, causation, and serious bodily injury. We hold that the District Court did not

abuse its discretion when it determined that the State’s evidence was not so prejudicial as

to render the trial fundamentally unfair.

¶55 4. Whether Ugalde is entitled to a new trial on the ground of prosecutorial
misconduct during closing argument.

¶56    The prosecutor began her closing argument with a first-person narrative from the

perspective of the infant, relating the State’s view of what happened as though I.N. was

testifying on his own behalf. During rebuttal, the prosecutor then told jurors that the

infant was “speaking to you” and asked the jurors to “tell [I.N.] that you heard him and

that you find the Defendant guilty.”        Ugalde did not object to the State’s closing

argument.

¶57    Ugalde argues on appeal that the State’s closing and rebuttal arguments were

improper because certain statements constituted a “golden rule” argument.          Ugalde

explains that a “golden rule” argument is one in which jurors “are asked to put

themselves in a party’s place,” citing to State v. Long, 975 A.2d 660 (Conn. 2009).


                                             17
Ugalde argues that such arguments are improper because they “appeal to base, visceral

emotion, without regard for evidence or proof of guilt.” See Clausell v. State, 2005 MT

33, ¶ 41, 326 Mont. 63, 106 P.3d 1175 (Nelson, J., dissenting) (“These types of ‘Golden

Rule’ arguments are improper, as they interfere with the jury’s objectivity.”).

¶58     The District Court concluded that the State’s closing and rebuttal arguments were

proper, analogizing to Clausell. In Clausell, this Court concluded that the defendant did

not establish that the prosecutor engaged in misconduct where the prosecutor “asked the

jury to follow the evidence trail left by [the victim’s] body and determine ‘what speaks

for [the victim]?     The evidence, Defendant’s actions, Defendant’s admissions.’”

Clausell, ¶ 17. Similarly, the District Court determined the prosecutor’s argument in this

case urged the jury to follow the trail of evidence and find Ugalde guilty. The court also

noted that Ugalde did not timely object to the State’s purported violation of the golden

rule at trial.

¶59     “A prosecutor’s misconduct may be grounds for reversing a conviction and

granting a new trial if the conduct deprives the defendant of a fair and impartial trial.”

Clausell, ¶ 11 (citing State v. Gray, 207 Mont. 261, 266-67, 673 P.2d 1262, 1265-66

(1983)). If a timely objection is not made at trial, however, the issue is waived; post-trial

objections do not properly preserve an issue for appeal. Section 46-20-104(2), MCA,

State v. McWilliams, 2008 MT 59, ¶¶ 43-47, 341 Mont. 517, 178 P.3d 121; State v.

Misner, 2007 MT 235, ¶¶ 24-26, 339 Mont. 176, 168 P.3d 679; State v. Grace, 2001 MT

22, ¶ 35, 304 Mont. 144, 18 P.3d 1008. A timely objection must be made “as soon as the

grounds for the objection become apparent.” Grace, ¶ 35.

                                             18
¶60   We will apply plain error review only “in situations that implicate a defendant’s

fundamental constitutional rights when failing to review the alleged error may result in a

manifest miscarriage of justice, leave unsettled the question of the fundamental fairness

of the proceedings, or compromise the integrity of the judicial process.” Aker, ¶ 21

(citing State v. McDonald, 2013 MT 97, ¶ 8, 369 Mont. 483, 299 P.3d 799). We often

have “refused to conduct plain error review of a prosecutor’s comments” in other similar

contexts, such as closing arguments regarding witness credibility, “even in cases where

we have concluded that the comments were improper.” Aker, ¶ 29; e.g. State v. Lindberg,

2008 MT 389, ¶ 33, 347 Mont. 76, 196 P.3d 1252.

¶61   This Court held in a previous case that defense counsel was not deficient for

remaining silent when a prosecutor purported to speak as the deceased victim, where “all

material statements contained in the prosecutor’s narration from the standpoint of the

victim were supported by testimonial or other evidence admitted at trial.” Kills On Top v.

State, 273 Mont. 32, 50-51, 901 P.2d 1368, 1380 (1995). In U.S. v. Rodriguez, 581 F.3d

775, 803 (8th Cir. 2009), the Eighth Circuit Court of Appeals held that “a prosecutor’s

brief claim to ‘speak for’ a victim is improper if, in the context of surrounding

statements, the comment appeals excessively to jurors’ emotions.”            Where “the

surrounding statements focused jurors’ attention on the government’s evidence,”

however, the comment was held not to be improper.          Rodriguez, 581 F.3d at 803.

Although the Rodriguez court noted a split of authority on the issue, it observed that

speaking for a victim does not necessarily result in error. Rodriguez, 581 F.3d at 803

(citing Sanchez v. State, 41 P.3d 531, 535 (Wyo. 2002); State v. Braxton, 531 S.E.2d 428,

                                           19
455 (N.C. 2000); Henderson v. State, 583 So.2d 276, 286 (Ala. App. 1990)). Even those

cases cited as contrary authority did not conclude that “speaking for” the victim alone

required reversal of a conviction. E.g. U.S. v. Lowder, 5 F.3d 467, 473-74 (10th Cir.

1993); People v. Brown, 624 N.E.2d 1378, 1388, 1391-92 (Ill. App. Ct. 1993); State v.

Roberts, 838 S.W.2d 126, 131 (Mo. App. 1992).          The Ninth Circuit’s decision in

Drayden v. White, 232 F.3d 704 (9th Cir. 2000), is similar. In that case, the court held

that the defendant’s trial was not rendered “fundamentally unfair” by the prosecutor’s

improper delivery during his closing argument—from the witness chair—of a lengthy

soliloquy purporting to tell the story of the homicide victim. Among other things, the

court noted that “the prosecutor’s statements were supported by the evidence and

reasonable inferences that could be drawn from the evidence. In other words, had the

prosecutor delivered exactly the same speech in the third person, it would have been

proper.” Drayden, 232 F.3d at 713.

¶62   Although the prosecutor in this case purported to speak for the victim, she then

asked the jury to consider the witnesses’ testimony carefully because “[I.N.] can’t tell

you what happened on June 11th of 2008.” The State did not expressly invite the jury to

put itself in the shoes of the victim. Considering the State’s closing argument in its

entirety, we observe that the argument following the challenged comments directed the

jury to the evidence and its relationship to the elements of the offense. Makarchuk, ¶ 24

(“We consider alleged improper statements during closing argument in the context of the

entire argument.”). While we do not decide whether the prosecution’s argument was

objectionable, we conclude after a review of the record and the District Court’s careful

                                           20
consideration of the issue that—in the context of the surrounding statements—it did not

rise to the level of plain error. The Dissent’s strong statement that prosecutors are

suffering no “actual consequences” of “violat[ing] ethical rules” by committing

misconduct during argument (Dissent, ¶ 118) overlooks its earlier recognition that this

Court has not yet decided whether a first-person narrative constitutes misconduct

(Dissent, ¶ 105). We decline to overturn the jury’s verdict on the basis of an argument

that was not made at trial and that has not been held to be grounds for a new trial by this

Court or by other courts to have considered the issue under similar circumstances.

Ugalde waived her right to raise this claim on appeal by failing to object to the State’s

closing arguments during trial. The District Court did not abuse its discretion in denying

her motion for a new trial on this issue.

¶63 5. Whether Ugalde is entitled to a new trial because her counsel provided
ineffective assistance.

¶64    Ugalde argues that her counsel provided ineffective assistance due to an “inherent

conflict” in the management of conflict cases by the OPD, which made it impossible for

counsel to exercise independent judgment. She further argues that defense counsel’s

failure to ensure the confidentiality of an expert witness, to object to late disclosure of a

new expert by the prosecution, to stipulate to serious bodily injury, to object to victim

impact testimony, and to timely object to the prosecution’s closing arguments constitutes

ineffective assistance and denied her a fair trial.

¶65    A defendant’s right to effective assistance of counsel is guaranteed by the Sixth

and Fourteenth Amendments to the United States Constitution, and by Article II, § 24 of


                                              21
the Montana Constitution. “Before reaching the merits of an ineffective assistance of

counsel claim in a direct appeal, we ‘must first determine whether the allegations are

properly before the Court on appeal or whether the claim should be raised in a petition for

post-conviction relief’ pursuant to § 46-21-101, MCA.” Aker, ¶ 34 (quoting State v.

Upshaw, 2006 MT 341, ¶ 33, 335 Mont. 162, 153 P.3d 579). “If the claim is based on

matters outside of the record, ‘we will refuse to address the issue on appeal.’” Aker, ¶ 34

(quoting State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095). If a claim is

reviewable on appeal, however, the claim “present[s] mixed questions of law and fact

that we review de novo.” Aker, ¶ 22 (quoting Howard, ¶ 18).

¶66    If we determine that an ineffective assistance of counsel claim is based on the

record, we analyze the claim under the two-part test set forth by the U.S. Supreme Court

in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Under Strickland, a

defendant bears the burden of proving: “(1) that counsel’s performance was deficient; and

(2) that counsel’s deficient performance prejudiced the defense.” Whitlow v. State, 2008

MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861 (citing Strickland, 466 U.S. at 687, 104 S. Ct.

at 2064). “To prevail on an ineffective assistance claim, a defendant must satisfy both

prongs of this test. Where the defendant makes an insufficient showing as to one prong

of the test, it is unnecessary to address the other prong.” Hammer v. State, 2008 MT 342,

¶ 10, 346 Mont. 279, 194 P.3d 699 (2008) (citing Whitlow, ¶ 11).

¶67    As Ugalde raises a number of unrelated claims, we discuss each in turn.




                                            22
       A. Inherent Conflict of Interest

¶68    Ugalde argues that defense counsel was “unable to effectively represent [her] due

to the inherent conflict arising from the centralized nature of the Office of the Public

Defender . . . .” She points specifically to the contract coordinator’s ties to the OPD and

the requirement that the OPD approve expenditures over $200 by contract defense

attorneys. To support her position, she offers a 2009 study conducted by the American

University Criminal Courts Technical Assistance Project, suggesting that structural issues

with the OPD’s contract coordinator position allow undue influence over contract counsel

by the OPD. These allegations properly are before the Court on appeal and this issue

may be addressed directly.

¶69    A lawyer is obligated to maintain professional independence. “A lawyer shall not

permit a person who recommends, employs or pays the lawyer to render legal services for

another to direct or regulate the lawyer’s professional judgment in rendering such legal

services.” M. R. Prof. Conduct 5.4(c).

¶70    Sufficient prejudice under Strickland’s second prong requires that the defendant

“demonstrate that a reasonable possibility exists that, but for counsel’s unprofessional

error, the result of the proceeding would have been different.” Hammer, ¶ 11. A cursory

look at this issue is enough to determine that Ugalde was insufficiently prejudiced to

warrant reversal. Ugalde’s counsel was required to obtain approval for expenditures and

the contract coordinator shelved a preliminary request for a specific pathologist pending

consultation with Dr. Dale. After consulting with Dr. Dale, however, defense counsel

never renewed the request for the pathologist and instead requested another doctor. This

                                            23
second request was approved. In addition, two out-of-state expert witnesses testified for

the defense, and Ugalde was represented by two attorneys at trial. Ugalde has not shown

that any of her requests for resources was not provided; she has shown only that one

request was not renewed because her counsel chose another expert. No one has argued

that responsibility for this choice rested on anyone other than defense counsel; indeed, we

will not assume that, when a lawyer is required to request approval or consult with an

expert, that she automatically abandons her own professional judgment.

¶71    Ugalde’s claim that her “choice of an expert witness was frustrated” is thus

without merit and therefore the larger issues that she argues are implicated by the 2009

study will not be addressed at this time. Because the OPD approved Uglade’s ultimate

choices for expert witnesses, she has not shown prejudice from a conflict of financial

interest between the OPD and contract counsel.

       B. Failure to Ensure Confidentiality of a Witness

¶72    Ugalde claims that she received ineffective assistance of counsel when defense

counsel failed to “explicitly and independently ensure confidentiality before disclosing

critical case strategy . . . .” Ugalde adds to this claim that defense counsel’s failure to

raise the Yellowstone County Attorney’s prosecutorial misconduct before the District

Court also was ineffective assistance.

¶73    Having determined above that the disclosures by Dr. Dale to Paxinos were

insufficient to affect the outcome of the case, we now hold based on the same reasoning

that Ugalde cannot demonstrate a reasonable possibility that, but for counsel’s error, the

result of the proceeding would have been different.

                                            24
       C. Failure to Object to the Late Disclosure of Dr. Smith

¶74    Ugalde argues that “competent counsel would have objected” to the State’s

disclosure of a new expert witness “a mere fourteen days before trial.” This issue was

not raised until Ugalde’s post-trial motion, but the record is sufficient to address the issue

directly.

¶75    Under the first prong of Strickland, deficient performance is performance that

“[falls] below an objective standard of reasonableness measured under prevailing

professional norms and in light of the surrounding circumstances.” Whitlow, ¶ 20. The

burden of proving deficient performance is on the defendant. Howard, ¶ 22. When

“scrutinizing counsel’s actions, we are highly deferential, indulging a ‘strong

presumption that counsel’s performance falls within the wide range of reasonable

professional assistance.’” Howard, ¶ 22 (quoting Kills On Top, 273 Mont. at 49, 901

P.2d at 1380). In Howard, this Court determined that the defendant did not meet his

burden to show deficient performance for failure to ascertain whether two child witnesses

were competent to testify after noting that the defense’s cross-examination was thorough

and that an investigator was employed during discovery to take the witness’s statements.

Howard, ¶ 28.

¶76    Ugalde fails to identify how additional time to prepare would have aided the

defense. The fact that defense counsel did not object to the timing of Dr. Smith’s

disclosure suggests that the defense did not perceive the disclosure to be harmful at the

time. Similar to Howard, defense counsel took advantage of the opportunity to interview

Dr. Smith before trial. Likewise, the defense was able to thoroughly cross-examine him

                                             25
regarding complicated medical issues and even called an expert who directly addressed

and rebutted many of Dr. Smith’s opinions. The record does not support Ugalde’s claim

of deficient performance by counsel here.

       D. Failure to Stipulate to Serious Bodily Injury

¶77    Ugalde    claims   that   defense    counsel’s     discomfort   to   stipulating   was

“unpardonable” and describes the failure to stipulate to the element of serious bodily

injury as the “most serious oversight” by defense counsel.             Yet, to come to this

conclusion, Ugalde assumes that the District Court radically would have restricted the

State’s expert testimony if defense counsel had stipulated.

¶78    This assumption is insufficient to demonstrate ineffective assistance of counsel.

While the trial court may have limited some testimony where it could determine that the

testimony only went to the element of serious bodily injury, as discussed above, proving

causation in this case required analysis of I.N.’s injuries. Therefore the State still may

have needed to call many of the same witnesses to testify about the nature of the injuries.

Ugalde’s argument to the contrary is speculative. Ugalde “bears the burden to show that

[her] counsel’s performance fell below an objective standard of reasonableness.” State v.

St. Germain, 2007 MT 28, ¶ 33, 336 Mont. 17, 153 P.3d 591. Strickland’s first prong

“carries a strong presumption in favor of the State, as counsel is allowed wide latitude in

deciding what tactics [counsel] should, and should not, employ in defending [a] client.”

Kougl, ¶ 11.    The record shows only that defense counsel was “not comfortable”

stipulating to an element of the crime; putting the State to its burden of proof was not

deficient performance.

                                             26
       E. Failure to Object to Victim Impact Testimony

¶79    Ugalde argues that defense counsel’s failure to object to victim impact testimony,

when “taken in conjunction with the other errors by defense counsel,” constitutes a

failure to provide effective representation. She concedes, however, that “it is not certain

such objections would have been sustained, and it is less certain they would have

changed the outcome . . . .” We already have pointed out above that Ugalde offers no

specific statements as examples of victim impact evidence. We also have determined that

the District Court did not abuse its discretion in determining that the State’s evidence was

not sufficiently prejudicial to render the trial fundamentally unfair.       We therefore

conclude that Ugalde has failed to prove prejudice sufficient to meet the requirements of

Strickland’s second prong.

       F. Failure to Object to Improper Closing Argument

¶80    Ugalde claims that defense counsel’s failure to object to the State’s closing

argument, during which the State spoke from the perspective of the injured child,

constitutes ineffective assistance of counsel. The State’s closing argument began with

several brief, but undeniably emotional statements. The prosecutor—while pretending to

be I.N.—said, “Now, I can’t hang out with kids my own age because I can’t say what I

want or do what I need. I can’t tell my mom I love her. I can’t say what I want or do

what I need because at age two-and-a-half I can only say three words.” Next, the State

communicated that, while I.N. personally was unable to testify, the jury had “heard from

numerous witnesses about what happened to [I.N.] on that day.”             The State then

proceeded to carefully and properly discuss the evidence introduced by each witness.

                                            27
¶81    During its own closing, the defense deftly focused on the State’s difficulty in

eliminating the possibility of an accidental cause. The defense observed that the State’s

experts could not completely rule out non-accidental trauma, and also that the State did

not rebut evidence that I.N. was capable of pulling himself up and over the low-placed

bars of the crib. The defense conceded that the injuries were “horrible and tragic” and

entreated the jury to conclude that “[w]hat happened in this case was a horrible accident,

not a crime.”

¶82    “In scrutinizing counsel’s actions, we are highly deferential, indulging a strong

presumption that counsel’s performance falls within the wide range of reasonable

professional assistance.” Howard, ¶ 22 (citation omitted).        “Because many lawyers

refrain from objecting during . . . closing argument, absent egregious misstatements, the

failure to object during closing argument . . . is within the ‘wide range’ of permissible

professional legal conduct.” Kills On Top, 273 Mont. at 50-51, 901 P.2d at 1380 (quoting

U.S. v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (citation omitted). “This Court

has determined . . . that failure to object does not qualify as unreasonable conduct by trial

counsel.” State v. Lacey, 2012 MT 52, ¶ 28, 364 Mont. 291, 272 P.3d 1288 (citing

Clausell, ¶ 20).

¶83    In Kills On Top, this Court held that the appellant’s trial counsel was “not

deficient in failing to object to the prosecutor’s closing argument” when the prosecutor

portrayed himself as the victim. Kills On Top, 273 Mont. at 50, 901 P.2d at 1380.

Similarly—in light of the evidence presented in this case and considering the State’s

closing argument as a whole—we conclude that defense counsel’s conduct falls within

                                             28
the wide range of reasonable professional conduct. Ugalde has not met her burden of

demonstrating deficient performance as required by Strickland’s first prong.

       G. Conclusion

¶84    In summary, we determine that all of Ugalde’s ineffective assistance of counsel

claims are reviewable on direct appeal. Having reviewed those claims de novo, we

conclude that Ugalde has not met the Strickland standard.

                                     CONCLUSION

¶85    Finding no error in the District Court’s trial or post-trial rulings, the conviction is

affirmed.

                                                  /S/ BETH BAKER

We concur:


/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JIM RICE


Justice Laurie McKinnon, dissenting.

¶86    After consideration of the record in its entirety, I conclude there was plain error

when the prosecutor “channeled” the eight-month-old victim during closing arguments.

Accordingly, I respectfully dissent from the Court’s holding under Issue 4 that the

District Court did not abuse its discretion in denying Ugalde’s motion for a new trial.

¶87    While under the care and supervision of his babysitter (Ugalde), eight-month-old

I.N. suffered a serious head injury causing acute bilateral subdural hematomas, brain

swelling, and severe bilateral retinal hemorrhaging. As a result, I.N. likely will have

                                             29
permanent deficiencies in his motor skills and cognitive development. It is doubtful that

a prosecutor could have a more sympathetic victim than an eight-month-old infant who,

allegedly, was abused by his caretaker.

¶88    In the Information, the State alleged that Ugalde had “purposely or knowingly

caused serious bodily injury to another, to-wit: the Defendant shook or slammed I.N.

(born in October 2007) causing him serious bodily injury,” in violation of § 45-5-202(1),

MCA (“A person commits the offense of aggravated assault if the person purposely or

knowingly causes serious bodily injury to another . . . .”). As is an accused’s right,

Ugalde was not comfortable with stipulating to “serious bodily injury” and, thus, required

the prosecution to meet its burden of proving every element of the offense charged.

Nevertheless, in her opening statement, defense counsel acknowledged to the jury that

I.N. had suffered serious bodily injury: “[Nevada] had her own young child, and she was

baby-sitting [I.N.] in her own home when he suffered a terrible accident and he was

seriously injured.” During her closing argument, defense counsel again acknowledged

that “I told you out of the gate we weren’t going to contest that the injuries were serious

in this case. That was never an issue. The issue in this case is causation.”

¶89    Ugalde’s approach is understandable, given that her defense related to causation.

Testimony regarding the nature of I.N.’s injuries overlapped with testimony regarding the

seriousness of those injuries, and defense counsel could not risk that a pretrial stipulation

to “serious bodily injury” would foreclose her from examining experts at trial regarding

the nature of the injuries as relevant to causation. We implicitly acknowledge counsel’s

dilemma in our observation that a “[t]horough review of the record reveals that it is often

                                             30
impossible to separate which evidence went to the causation element and which went to

the serious bodily injury element; the extent of the injuries was a factor for the jury to

consider in determining both seriousness and causation.” Opinion, ¶ 48.

¶90    Consequently, the prosecution produced ten witnesses who testified to various

aspects of I.N.’s injuries and treatment—much of it overlapping and cumulative. While it

would be unreasonable to prevent the State from developing its case regarding serious

bodily injury, a defendant does not waive objections to prejudicial or cumulative

evidence by insisting that the State meet its burden of proof. Ugalde still had the right to

have relevant evidence excluded from consideration by the jury if its probative value was

substantially outweighed by the danger of unfair prejudice or by considerations of

needless presentation of cumulative evidence. M. R. Evid. 403.

¶91    The District Court refused to hold the State at fault “for preparing a thorough

presentation of its case” and ultimately determined, in balancing the cumulative and

prejudicial nature of the evidence against its probative value, that the complicated nature

of I.N.’s injuries warranted testimony from each of the ten witnesses. In my view, this

was a close call. However, we review such rulings for abuse of discretion, and the

question under this standard is not whether we would have reached the same decision, but

whether the trial judge acted arbitrarily without conscientious judgment or exceeded the

bounds of reason. Newman v. Lichfield, 2012 MT 47, ¶ 22, 364 Mont. 243, 272 P.3d

625.   I agree with the Court’s implicit holding that the District Court did not act

arbitrarily without conscientious judgment or exceed the bounds of reason in allowing the

prosecution to present the testimony of all ten witnesses. Opinion, ¶¶ 49-50. Given that

                                            31
I.N. suffered a serious head injury, it is not surprising that the impact of this primary

injury would be observed through many, if not all, aspects of I.N.’s physical and mental

well-being.

¶92    Nevertheless, the impact on the jury of hearing ten experts testify to each aspect of

I.N.’s injuries and treatment is relevant to, and provides context for, the prosecutor’s

improper closing argument.       The State’s first witness was Dr. Brian Starr, I.N.’s

pediatrician.   Dr. Starr testified that before the June 11, 2008 injury, I.N. was a

developmentally normal child, but that since the injury, I.N.’s skull was not growing

normally. Dr. Starr stated that this was indicative of a severe brain injury and that I.N. is

permanently impaired as a result of this injury. Dr. Starr also stated that he has treated

children who suffered short-distance accidental falls and that he had never seen, in such

cases, the same “constellation of injuries” that I.N. had suffered.

¶93    Next, Holly Taylor, a physical therapist, described I.N.’s motor skills and how

I.N.’s developmental delays in his motor skills are a result of his brain injury. Tanya

Sciuchetti, a pediatric occupational therapist, also testified that I.N. was delayed in his

motor skills due to his brain injury. Carol Morse, a speech and language pathologist,

testified that I.N.’s speech development has been delayed as a result of his brain injury.

¶94    Dr. Eugen Dolan, a neurological surgeon, testified that I.N. suffered a severe head

injury with bleeding inside the skull. When cross-examined on causation, Dr. Dolan was

somewhat equivocal but did agree that I.N.’s injuries could have been caused by the

trauma of falling from a crib. He admitted that he could not rule out accidental trauma as

a potential cause. Dr. Linda Johnson, a pediatrician, also described I.N.’s injuries and her

                                             32
treatment of those injuries. She stated that I.N.’s injuries were severe, and she was 95 to

97 percent sure that the injuries were the result of nonaccidental trauma.

¶95    Dr. Curtis Lee, an emergency room physician, testified that it was apparent I.N.

had suffered “a severe head trauma.” He described I.N.’s injuries and testified about his

treatment of I.N. Dr. Lee acknowledged that he had not ruled out accidental trauma as a

potential cause of the injuries; however, he opined that the history he had been given

regarding the mechanism of injury—i.e., that I.N. had fallen out of a crib—did not

account for the severity of the injuries he had observed in I.N.

¶96    Dr. Andrew Sirotnak, of Denver Children’s Hospital in Colorado, is a pediatrician

who specializes in child abuse cases. Dr. Sirotnak described I.N.’s injuries and testified

that these injuries were not consistent with a linear fall of less than three feet onto a

carpeted floor. Rather, in his opinion, this was a case of physical abuse or nonaccidental

trauma. While he could not specify the mechanism of injury, Dr. Sirotnak opined that

I.N.’s injuries were consistent with rapid acceleration-declaration, such as whiplash.

¶97    Dr. Daniel Weaver, a pediatric ophthalmologist, described the injuries to I.N.’s

eyes and stated that surgical treatment of the eyes had been necessary due to I.N.’s head

injury. Dr. Weaver testified that, in his experience, he had never seen I.N.’s constellation

of injuries—bilateral retinal hemorrhages, bilateral vitreous hemorrhages, and an afferent

pupil defect—in a child who had fallen from a height of less than four feet. He conceded,

however, that such injuries could result from such a fall.

¶98    Lastly, Dr. Wilbur Smith, a pediatric radiologist, testified that I.N. had suffered

severe abusive head trauma. In Dr. Smith’s opinion, I.N.’s injuries were not the result of

                                             33
a short-distance fall but, rather, were the result of being shaken or slammed.         He

conceded on cross-examination, however, that the nature of the injuries by themselves

did not establish abusive treatment by a caregiver—for example, they theoretically could

have been the result of a motor vehicle accident—and thus it was necessary to consider

the reported history about the injuries. Nevertheless, Dr. Smith maintained the opinion

that I.N.’s injuries were not due to a fall from his crib.

¶99    In addition to the foregoing experts, the State called Susan Napier, I.N.’s mother.

Through Susan, the State introduced State’s Exhibits 3 through 6 into evidence.

Exhibits 3 and 4 are pictures taken of eight-month-old I.N. at his sister’s birthday party

on June 1, 2008. Exhibit 5 is a picture of I.N. at the hospital in June 2008 following his

injury. He is shown in a medically induced coma with IVs, a catheter, and a head wrap.

Exhibit 6 is a picture of I.N. in January 2009 after his second eye surgery. He is shown

with a patch over his left eye.

¶100 The prosecution’s initial closing argument, presented by Deputy County Attorney

Juli Pierce, began as follows:

              May it please the Court, counsel, ladies and gentlemen of the jury.
       What a difference a day makes. Before June 11th of 2008, I was a normal,
       healthy, happy kid. My parents and I had hopes and dreams for me. This is
       me on June 1st of 2008 at my sister Anastasia’s birthday party. [Jury is
       presumably shown State’s Exhibits 3 and 4, depicting I.N. at the birthday
       party.] After June 11th of 2008, I would never ever, ever be the same
       again. My life and the lives of my family would be drastically changed
       forever because of what my baby-sitter, the Defendant, did to me.
              That morning, on June 11th of 2008, I was a normal kid. My mom
       and my grandma dropped me off at the Defendant’s house who had been
       baby-sitting me for a couple of months. Sometime in the early afternoon,
       my trusted caretaker, that woman, shook me and slammed me to the point
       of having severe closed head injury causing me to look like this. [Jury is

                                              34
       presumably shown State’s Exhibit 5, depicting I.N. in a medically induced
       coma.] And after June 11th of 2008, I had more and more surgeries, and
       more issues, and the Defendant caused me to look like this. [Jury is
       presumably shown State’s Exhibit 6, depicting I.N. following his second
       eye surgery.] Now, I can’t walk normally without braces on, or else I walk
       on my tiptoes. Now, I can’t hang out with kids my own age because I can’t
       say what I want to do or what I need. I can’t tell my mom I love her. I
       can’t say what I want or what I need because at age two-and-a-half I can
       only say three words. [Jury is shown a video, apparently State’s Exhibit 19,
       which shows I.N. at his home interacting with his mother in April 2010.]
       My life will never be the same, and my family’s lives will never be the
       same because of what the Defendant did to me on June 11th of 2008.

At the conclusion of her argument, Pierce asked the jurors to “tell the Defendant that you

know what happened that day, and you find her guilty.”

¶101 At the outset of her rebuttal closing argument, Pierce remarked: “We talked . . . at

length in voir dire about child abuse. We talked about child abuse usually occurring

behind closed doors, two people, perpetrator/victim.” Pierce asserted that “[I.N.] was the

only witness, besides the Defendant, to tell you what happened to him on June 11th of

2008.” (I.N. did not actually testify.) Pierce concluded with the following: “[I.N.] can’t

speak. He can’t sit in that chair and tell you what happened to him. But you heard all

those witnesses, and it’s like [I.N.] was speaking to you. And you tell [I.N.] that you

heard him, and you find the Defendant guilty.”

¶102 “Channeling the victim” is a technique by which a lawyer speaks to the jury in the

first person as though she is the injured or deceased person. It is calculated to produce a

dramatic and emotional impact on the jury by bringing to life in the courtroom a dead

victim or a victim who—as here—cannot testify. In my view, a prosecutor who channels

an eight-month-old infant, states that “I can’t tell my mom I love her,” and asks the jury


                                            35
to “tell [the infant] that you heard him” has engaged in misconduct calling into doubt the

fundamental fairness of the trial itself.

¶103 Channeling gained national attention in conjunction with John Edwards’s 2004

presidential campaign. Nineteen years earlier, Edwards (a North Carolina lawyer at the

time) litigated an action against an obstetrician for negligently failing to perform a

cesarean section that allegedly would have prevented the child’s cerebral palsy. Edwards

stood before the jury and channeled the words of the unborn baby girl. Referring to an

hour-by-hour record of a fetal heartbeat monitor, he told the jury: “She said at 3, ‘I’m

fine.’ She said at 4, ‘I’m having a little trouble, but I’m doing O.K.’ Five, she said, ‘I’m

having problems.’ At 5:30, she said ‘I need out.’ ” Edwards continued: “She speaks to

you through me. And I have to tell you right now – I didn’t plan to talk about this – right

now I feel her. I feel her presence. She’s inside of me, and she’s talking to you.” The

jury awarded Edwards’s client $6.5 million, but the trial court subsequently ruled the

award “excessive,” observing that it had been given “under the influence of passion and

prejudice.” The parties ultimately settled for $4.25 million. See Adam Liptak & Michael

Moss, In Trial Work, Edwards Left A Trademark, N.Y. Times (Jan. 31, 2004).

¶104 Most likely attributable to CLE presentations and trial-advocacy publications, the

“art” of channeling has spread beyond the civil trial. Prosecutors apparently will risk

manipulating and misstating the evidence in order to present an emotional appeal, even

when they have ample and convincing evidence to convict. Drayden v. White, 232 F.3d

704, 711-13 (9th Cir. 2000); U.S. v. Rodriguez, 581 F.3d 775, 803 (8th Cir. 2009); Kills



                                            36
on Top v. State, 273 Mont. 32, 51, 901 P.2d 1368, 1380 (1995); cf. Clausell v. State, 2005

MT 33, ¶ 17, 326 Mont. 63, 106 P.3d 1175; Clausell, ¶¶ 40-41 (Nelson, J., dissenting).

¶105 With respect to various types of conduct, this Court has been clear. It is improper

for a prosecutor to offer personal opinions regarding witness credibility. State v. Daniels,

2003 MT 247, ¶ 26, 317 Mont. 331, 77 P.3d 224; State v. Gladue, 1999 MT 1, ¶ 15, 293

Mont. 1, 972 P.2d 827; State v. Rodgers, 257 Mont. 413, 417, 849 P.2d 1028, 1031

(1993). Statements by a prosecutor expressing a personal opinion about the guilt of the

accused are likewise improper. Gladue, ¶ 21; State v. Stringer, 271 Mont. 367, 381, 897

P.2d 1063, 1071-72 (1995).      It also is improper for the prosecutor to comment on

evidence not of record during closing argument. Gladue, ¶ 14. However, this Court has

not addressed directly whether channeling the victim in closing argument constitutes

reversible misconduct.

¶106 The issue arose in Kills on Top, where we considered whether defense counsel’s

failure to object to the prosecutor’s summation of the evidence, in which the prosecutor

portrayed himself as the victim and narrated in the first person, constituted ineffective

assistance. We held that counsel was not deficient because “it appears that all material

statements contained in the prosecutor’s narration from the standpoint of the victim were

supported by testimonial or other evidence admitted at trial.” Kills on Top, 273 Mont. at

51, 901 P.2d at 1380. But we declined to consider whether channeling the victim actually

constituted prosecutorial misconduct. Kills on Top, 273 Mont. at 62, 901 P.2d at 1387.

¶107 In the civil context, the issue of channeling arose recently in a medical malpractice

action where the plaintiff’s attorney assumed the persona of the plaintiff’s deceased

                                            37
husband and delivered a first-person narrative recounting the events leading to his death.

Heidt v. Argani, 2009 MT 267, ¶ 5, 352 Mont. 86, 214 P.3d 1255. Counsel used phrases

such as “oh my God, I’m dying,” and then described being autopsied, including a

description of being cut open and of the decedent’s sorrow at not getting to see his

children grow up. Heidt, ¶ 5. At this point, one of the jurors announced that she was

“not okay” and that she thought she was going to pass out. The defendant-physician

(Argani) proceeded to render assistance. Heidt, ¶ 6. On appeal, we considered whether

the plaintiff’s motion for a mistrial should have been granted.              Heidt, ¶ 12.     We

concluded, in light of the unique circumstances of the case—i.e., a medical malpractice

trial in which the jury gets to see the defendant doctor reacting to a real-life situation and

apparently successfully delivering life-saving care—that a mistrial should have been

granted. Heidt, ¶¶ 16-17. We did not address the propriety of counsel’s channeling.

¶108 Outside Montana, the Eighth Circuit observed in Rodriguez that a prosecutor may

not express an opinion implying knowledge of facts unavailable to the jury and that it is

improper to ask jurors to put themselves in the place of the victim. 581 F.3d at 803.

However, the Court of Appeals noted disagreement among courts about whether a

defendant is unfairly prejudiced by a prosecutor’s statement that she “speaks for” a

victim.    Rodriguez, 581 F.3d at 803.1           While the cases cited in Rodriguez are


       1
         The Rodriguez court cited the following cases: Compare Sanchez v. State, 41 P.3d 531,
535 (Wyo. 2002) (prosecutor did not err by telling jury: “You and I get to speak for” the victim);
State v. Braxton, 531 S.E.2d 428, 455 (N.C. 2000) (holding that prosecutor does not err by
arguing that he speaks for victim); Henderson v. State, 583 So. 2d 276, 286 (Ala. Crim. App.
1990) (“we find no reversible error in a brief statement suggesting that the prosecuting attorney
speaks for the victim’s family”); with U.S. v. Lowder, 5 F.3d 467, 473-74 (10th Cir. 1993)
                                               38
distinguishable from the present case in that they did not involve a prosecutor narrating in

the voice of the victim, the cases nevertheless demonstrate how courts will view the

range of prosecutorial conduct.

¶109 Our criminal justice system is premised on certain fundamental principles. One of

those principles was aptly described by Justice Sutherland of the United States Supreme

Court almost 80 years ago:

              The [prosecutor] is the representative not of an ordinary party to a
       controversy, but of a sovereignty whose obligation to govern impartially is
       as compelling as its obligation to govern at all; and whose interest,
       therefore, in a criminal prosecution is not that it shall win a case, but that
       justice shall be done. As such, he is in a peculiar and very definite sense
       the servant of the law, the twofold aim of which is that guilt shall not
       escape or innocence suffer. He may prosecute with earnestness and
       vigor—indeed, he should do so. But, while he may strike hard blows, he is
       not at liberty to strike foul ones. It is as much his duty to refrain from
       improper methods calculated to produce a wrongful conviction as it is to
       use every legitimate means to bring about a just one.
              It is fair to say that the average jury, in a greater or less degree, has
       confidence that these obligations, which so plainly rest upon the
       prosecuting attorney, will be faithfully observed. Consequently, improper
       suggestions, insinuations, and, especially, assertions of personal knowledge
       are apt to carry much weight against the accused when they should properly
       carry none.

Berger v. U.S., 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935).




(although the comment did not deprive the defendant of a fair trial, prosecutor made an improper
comment to the jury by stating: “Who gets left out? The victims get left out. They don’t get
anybody to talk for them.”); People v. Brown, 624 N.E.2d 1378, 1388, 1391-92 (Ill. App. 1st
Dist. 1993) (prosecutor’s statement that “we speak for the victims in this case” was irrelevant to
defendant’s guilt, and while no single trial error required reversal, cumulative error did); State v.
Roberts, 838 S.W.2d 126, 131 (Mo. App. E. Dist. 1992) (although the comment did not require
reversal, prosecutor made an improper statement by arguing: “The victim, Mr. Booker, isn’t here
to speak for himself and able or not, it is my job to speak for Mr. Booker and Mr. Booker was a
man with a family.”).
                                                 39
¶110 In a similar vein, Chief Justice McGrath recently observed that “[a] prosecutor is

an officer of the court” who “must strive to promote justice and the rule of law.” State v.

Criswell, 2013 MT 177, ¶ 57, 370 Mont. 511, 305 P.3d 760 (McGrath, C.J., concurring).

Unfortunately, however, “ ‘some prosecutors have permitted an excess of zeal for

conviction or a fancy for exaggerated rhetoric to carry them beyond the permissible limits

of argument.’ ” Criswell, ¶ 55 (McGrath, C.J., concurring) (quoting ABA Stands. for

Crim. Just.: Prosecution Function and Def. Function, Stand. 3-5.8, Commentary, 107 (3d

ed., Am. B. Assn. 1993)). “Prosecutorial conduct in argument is a matter of special

concern because of the possibility that the jury will give special weight to the

prosecutor’s arguments, not only because of the prestige associated with the prosecutor’s

office, but also because of the fact-finding facilities presumably available to the office.”

ABA Stands. for Crim. Just.: Prosecution Function and Def. Function, Stand. 3-5.8,

Commentary, 107. Accordingly, a prosecutor “should not make arguments calculated to

appeal to the prejudices of the jury” and “should refrain from argument which would

divert the jury from its duty to decide the case on the evidence.” ABA Stands. for Crim.

Just.: Prosecution Function and Def. Function, Stand. 3-5.8(c), (d), 106.

¶111 In Drayden, the Ninth Circuit concluded that the prosecutor had engaged in

misconduct when he delivered a soliloquy in the voice of the victim. 232 F.3d at 712.

The Court of Appeals observed:

       By doing so, the Prosecutor inappropriately obscured the fact that his role is
       to vindicate the public’s interest in punishing crime, not to exact revenge on
       behalf of an individual victim. Furthermore, the prosecutor seriously risked
       manipulating and misstating the evidence by creating a fictitious character
       based on the dead victim and by “testifying” in the voice of the character as

                                            40
       if he had been a percipient witness. Finally, by testifying as [the victim],
       the prosecutor also risked improperly inflaming the passions of the jury
       through his first-person appeal to its sympathies for the victim who, in the
       words of the prosecutor, was a gentle man who did nothing to deserve his
       dismal fate.

Drayden, 232 F.3d at 712-13. I would add to this that channeling also risks infringing the

defendant’s constitutional right to cross-examine her accusers face to face. U.S. Const.

amend VI; Mont. Cost. art. II, § 24.

¶112 In Criswell, which involved charges of aggravated animal cruelty, the prosecutor

disparaged the defendants during his closing argument, calling them “squatters” and

“freeloaders.” He also asserted that they had been “run out of Idaho” and implied that

one of the defendants had purchased marijuana in lieu of providing food for his cats. See

Criswell, ¶ 43. While the prosecutor maintained that his remarks had not been intended

to inflame the jury or to comment on the defendants’ characters, Criswell, ¶ 45, Chief

Justice McGrath questioned this explanation: “Personally, I find that hard to believe. If

not intended to inflame the jury or comment on the Criswells’ characters, then what were

they intended to do?” Criswell, ¶ 57 (McGrath, C.J., concurring). In my view, we should

be asking the same question here.

¶113 In her closing argument, prosecutor Pierce stood before the jury, assumed I.N.’s

persona, and gave a first-person narrative of “what my baby-sitter, the Defendant, did to

me.” If not intended to inflame the passions of the jury through an appeal to their

sympathies for this already sympathetic infant-victim, then what was this tactic intended

to do? This was a case in which the prosecution had presented ample—and, at times,

repetitious—testimony about the serious bodily injuries suffered by the victim. The

                                           41
prosecution also had presented multiple expert opinions that these injuries were not the

result of an accidental fall from a crib. As Pierce observed in her closing argument,

“witness after witness after witness” testified on these matters. Certainly, the prosecutor

properly could have argued the State’s view of what these actual witnesses’ testimony

showed. The prosecutor also could have urged the jury “to follow the trail of evidence

and find Ugalde guilty.” Opinion, ¶ 58 (discussing the District Court’s reasoning based

on Clausell). But that is not what happened.

¶114 The prosecutor here purported to give actual testimony from an absent witness.

This testimony reflected Pierce’s personal opinions about what I.N. might have said on

the witness stand had he been able to appear as a witness. Opinions of this sort, however,

are “a form of unsworn, unchecked testimony and tend to exploit the influence of the

prosecutor’s office and undermine the objective detachment that should separate a lawyer

from the cause being argued.” ABA Stands. for Crim. Just.: Prosecution Function and

Def. Function, Stand. 3-5.8, Commentary, 108. Such tactics inappropriately obscure the

fact that the prosecutor’s role is to vindicate the public’s interest in punishing crime, not

to exact revenge on behalf of an individual victim. Drayden, 232 F.3d at 712-13. They

seriously risk manipulating and misstating the evidence by creating a fictitious character

based on the injured victim and by “testifying” in the voice of the character. Drayden,

232 F.3d at 713. And they risk improperly inflaming the passions of the jury through the

first-person appeal to its sympathies for the victim. Drayden, 232 F.3d at 713. They also

deny the defendant the right to cross-examine the fictitious witness.



                                             42
¶115 The Court refuses to grant relief because Ugalde did not contemporaneously

object to the prosecutor’s channeling.2 Opinion, ¶ 62. Somewhat ironically, however,

the Court then denies relief on Ugalde’s claim of ineffective assistance of counsel

(premised on defense counsel’s failure to object to the improper closing argument)

because “many lawyers refrain from objecting during . . . closing argument” and “failure

to object does not qualify as unreasonable conduct by trial counsel.” Opinion, ¶ 82

(ellipsis in original, internal quotation marks omitted). It seems to me that if failure to

object does not qualify as unreasonable conduct by trial counsel, then we ought to review

Ugalde’s prosecutorial misconduct claim on its merits. Conversely, if an objection was

required in order to preserve this claim for appeal, then defense counsel was ineffective

for not making one and we should review the claim. At the very least, the claim should

be considered under plain error review.

¶116 We have stated repeatedly that misconduct by a prosecutor may form the basis for

granting a new trial where the prosecutor’s actions have deprived the defendant of a fair

and impartial trial. State v. Gray, 207 Mont. 261, 266-67, 673 P.2d 1262, 1265-66

(1983); State v. Arlington, 265 Mont. 127, 158, 875 P.2d 307, 325 (1994); State v.

Hayden, 2008 MT 274, ¶ 27, 345 Mont. 252, 190 P.3d 1091. We have also explained
       2
         The Court cites Drayden as support for the Court’s decision to deny review of Ugalde’s
claim. Opinion, ¶ 61. Drayden, however, was a federal habeas corpus proceeding. After finding
that the prosecutor engaged in misconduct by delivering a soliloquy in the voice of the victim,
the Court of Appeals then considered the separate question whether this misconduct warranted
the grant of federal habeas relief. In so doing, the court applied a standard of review that is
specifically deferential to state-court proceedings. Drayden, 232 F.3d at 713. The present case,
in contrast, is a direct appeal from a criminal conviction, not a habeas corpus proceeding. And
there are no similar federal-state comity concerns in our review of Ugalde’s claim. For these
reasons, the Court’s reliance on the portion of the Drayden opinion discussed at ¶ 61 of the
Opinion is misplaced.
                                              43
that the applicability of plain error review must be decided on a “case-by-case” basis.

State v. Sullivant, 2013 MT 200, ¶ 17, 371 Mont. 91, 305 P.3d 838; Daniels, ¶ 20. Under

this doctrine, we may review a claimed error that implicates a defendant’s fundamental

constitutional rights—including claims of prosecutorial misconduct—where failing to

review the error may result in a manifest miscarriage of justice, may leave unsettled the

question of the fundamental fairness of the trial or proceedings, or may compromise the

integrity of the judicial process. Hayden, ¶¶ 17, 29-30; State v. Finley, 276 Mont. 126,

137-38, 915 P.2d 208, 215 (1996), overruled on other grounds, State v. Gallagher, 2001

MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817.

¶117 Here, I believe the prosecutor’s channeling the infant-victim in closing arguments

denied Ugalde her constitutional right to a fair trial. The channeling was neither brief nor

harmless. It was calculated to play on the emotions and sympathy of the jury. I.N. spoke

to the jurors through Pierce, describing the assault, the surgeries, how his life is no longer

the same, that he no longer can tell his mother he loved her, and that he can only speak

three words. Pierce asserted that “[I.N.] was the only witness, besides the Defendant, to

tell you what happened to him on June 11th of 2008.” Pierce asked the jurors to tell I.N.

that they heard him and to tell Ugalde that they know what happened that day. The

evidence presented at trial concerning the impact upon the eight-month-old victim and

the cause of his injuries was overwhelming. But that does not justify our overlooking a

prosecutor’s improper closing argument that was calculated to appeal to the jury’s

emotions, passion, and sympathy. This tactic undermined the fundamental fairness of the

trial. I therefore would reverse for plain error and remand for a new trial.

                                             44
¶118 In closing, I note there may be many reasons why defense counsel does not object

to improper argument by the prosecutor. Counsel may believe that an objection would

draw attention to a particular fact or strengthen the argument being made. Counsel may

fear a particular response from the judge or the prosecutor that would harm his or her

client. It is not inconceivable that defense counsel may allow the prosecutor to continue

an improper line of argument and thereby potentially build reversible error into the case.

But whatever the reason for defense counsel’s silence, this Court’s ongoing refusal to

address improper arguments such as here perpetuates tolerance of trial tactics that

undermine fairness in our tribunals. As I have observed previously, “[t]he message that

this increasingly prevalent practice is sending, unfortunately, is that prosecutors in this

State can be assured of having their convictions upheld despite comments made during

trial which violate ethical rules and ‘run the risk of undermining the fundamental fairness

of the judicial process.’ ” State v. Aker, 2013 MT 253, ¶ 44, 371 Mont. 491, ___ P.3d

___ (McKinnon & Cotter, JJ., dissenting) (quoting State v. Lindberg, 2008 MT 389, ¶ 34,

347 Mont. 76, 196 P.3d 1252). Until there are actual consequences, such as reversal of

the conviction, the problem is going to persist.

¶119 In response to this, the Court observes that we have “not yet decided whether a

first-person narrative constitutes misconduct.” Opinion, ¶ 62. However, the fact that this

Court has not yet reversed a case due to improper channeling is beside the point. The

rules prohibiting this tactic are already well settled. In this regard, the Court does not

dispute the following: that a prosecutor “should not make arguments calculated to appeal

to the prejudices of the jury,” ABA Stands. for Crim. Just.: Prosecution Function and

                                             45
Def. Function, Stand. 3-5.8(c), 106; that a prosecutor “should refrain from argument

which would divert the jury from its duty to decide the case on the evidence,” ABA

Stands. for Crim. Just.: Prosecution Function and Def. Function, Stand. 3-5.8(d), 106;

and that a prosecutor risks “manipulating and misstating the evidence” and “improperly

inflaming the passions of the jury” by “testifying” in the voice of the victim, Drayden,

232 F.3d at 713. These standards were violated here when the prosecutor, in her closing

argument, embarked on a first-person narrative in the voice of the victim. This tactic

arguably ran afoul, as well, of our longstanding prohibitions against expressing a personal

opinion about the guilt of the accused and commenting on evidence not of record.

Gladue, ¶¶ 14, 21; Stringer, 271 Mont. at 381, 897 P.2d at 1071-72.

¶120 In the end, we fail today in our obligation to provide guidance to the bench and bar

on a serious issue in the conduct of criminal proceedings—an issue that the appellant has

squarely raised in this appeal. We have rules which establish, at least in my view, that it

is improper for the prosecutor during closing argument to employ tactics calculated to

play on the emotions and sympathy of the jury. Channeling the victim is clearly designed

to do just that. I believe we should say so explicitly, rather than avoid the question on a

procedural ground.

¶121 I dissent.

                                                 /S/ LAURIE McKINNON




                                            46
