                                                                                         September 23 2009


                                         DA 08-0091

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2009 MT 314N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MICHAEL MAX MILLER,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. DDC-06-366
                      Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Jim Wheelis, Chief Appellate Defender; Lisa S. Korchinski, Assistant
                      Appellate Defender, Helena, Montana


               For Appellee:

                      Hon. Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
                      Assistant Attorney General, Helena, Montana

                      John Parker, Cascade County Attorney, Great Falls, Montana




                                                   Submitted on Briefs: July 29, 2009

                                                              Decided: September 22, 2009


Filed:
                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1        Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2        Michael Max Miller (Miller) appeals from the judgment of conviction and

sentencing order of the Eighth Judicial District Court, Cascade County, following a jury

trial finding him guilty of deliberate homicide of Lamar Windham (Windham). We

affirm.

¶3        Miller raises the following issues on appeal:

¶4        Whether the District Court properly denied Miller’s motion to dismiss for speedy

trial violation.

¶5        Whether the District Court properly instructed the jury on witness credibility.

¶6        Whether the District Court properly denied Miller’s motion to compel the mental

health care records of a third-party witness.

¶7        Whether the prosecutors committed plain error in their closing statements

concerning witness credibility and Miller’s silence.

¶8        On June 25, 2006, Miller attended the funeral of his wife in Browning. Miller’s

brother-in-law, Windham, gave Miller a ride back to Great Falls in his van. Windham


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called his sister-in law, Eva Little Youngman (Youngman), to tell her he made it to Great

Falls.    After returning to Great Falls, Windham and Miller picked up Al Johnson

(Johnson). Johnson had known Miller for about two weeks and had not previously met

Windham. The three men drank beer and schnapps while riding around town. Miller and

Windham argued about their wives. The next morning, Windham and Miller picked

Johnson up and they continued to drive around town drinking alcohol. Johnson quit

drinking after two or three beers.      At approximately 1:30 p.m., Windham drove to

Rainbow Dam Overlook (Giant Springs area) and parked. Windham and Miller got out

of the van and walked down a trail leading towards the river and dam. Johnson observed

that Windham and Miller continued to argue, waved their hands, and cursed at each

other. Johnson remained in the van because he did not feel well.

¶9       About 45 minutes later, Miller returned alone. Miller got in the driver’s seat and

said “let’s go.” Miller was sweating and out of breath. Johnson asked where Windham

was. Miller responded that he did not know, and then added that Windham ran down the

hill. Next Miller told Johnson that Windham went down the hill with some girl. Johnson

responded that he had not seen any girls. Johnson talked Miller into waiting and looking

around for Windham. Johnson asked Miller which direction they had gone, and Miller

pointed in a different direction than they had previously gone. After Johnson called him

out on this discrepancy, Miller went down the hill, looked for Windham, and told

Johnson he could not see Windham anywhere. After waiting about 90 minutes, Miller

told Johnson that he would take him home and then come back to look for Windham.



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¶10   Over the next days, Miller told various people different stories. After dropping

Johnson off, Gary Dogtakinggun asked about Windham’s whereabouts. Miller did not

want to talk about Windham and left. Miller later told a friend that Windham had jumped

over some bushes out of sight, and Miller went part way down toward the bushes to look

for Windham, but Miller never explained why he did not go further down the trail to find

Windham. Miller told Terry Matt that he and Windham had an argument at the dam and

Windham ran down the trail and never returned. Miller told Windham’s neighbor,

Robert Williams, that Windham went swimming below Giant Springs. Williams testified

that Windham did not care much for the water and did not swim much. Miller continued

to use Windham’s van during this time, even telling Johnson that Windham had returned

and allowed Miller to use his van. Windham’s children testified that Windham never

loaned his van to other people.

¶11   Windham’s family began to worry and attempted to locate him. Youngman spoke

with Miller by phone. Miller sounded anxious and told Youngman that Windham had

gone swimming at Giant Springs with another man, but later said that Windham left with

some girls. On July 13, 2006, Youngman and other family members traveled to Great

Falls to look for Windham. They eventually contacted Johnson who told them what

happened at Giant Springs. The family then found Miller who told different stories about

what happened.     Miller said that Windham was with some ladies, that they were

swimming in the Missouri and Windham swam out too far and was never seen again, and

that Windham may have taken off with one of the ladies out of state. Miller and Johnson

accompanied Windham’s family to Giant Springs. Miller took Windham’s family in the

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wrong direction, but Johnson corrected Miller and told the family the direction Windham

actually went. At one point, some family members were close to where Windham’s body

was eventually found, but Miller hollered down that they had been further east from the

dam. Family members noted that Miller was nervous during the search and did not seem

to be trying hard to find Windham. Miller did not really respond to questions regarding

why he had not tried harder to find Windham or call the police. After searching for 45

minutes, Johnson, Miller, and Windham’s family went to the police station. When they

arrived, Miller left without talking to the police. Johnson told the police what had

happened.

¶12    On July 18, 2006, law enforcement searched the Rainbow Dam area and found

Windham’s badly decomposed body on the river bottom below the Rainbow Scenic

Overlook cliff. Officers later found a Natural Ice beer can on a portion of the trail above

the cliff. Natural Ice is the brand of beer that Windham, Miller, and Johnson had been

drinking. DNA testing of the beer can excluded Windham as a possible contributor to the

mixture, but could not exclude Miller. Miller was arrested and interviewed by officers

investigating Windham’s death. Miller acknowledged being at Giant Springs by the dam

with Windham. Miller explained that Windham was running around acting crazy and

that he could not keep up with him. Miller said that he walked back down the trail a little

and yelled for Windham. Miller said he did not know where Windham went, denied

telling anyone that Windham was swimming, and claimed he never saw Windham

swimming. Miller also denied using Windham’s van. Miller told the officers he did not

report Windham as missing because of his outstanding warrant.

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¶13    On July 27, 2006, the State charged Miller with deliberate homicide. Miller was

incarcerated prior to trial and his case was continued several times. Miller filed several

motions, including a motion to dismiss for speedy trial violation and a motion to compel

production of Johnson’s mental health records. The District Court denied each motion.

After a five-day trial in November 2007, a jury found Miller guilty. Miller now appeals.

¶14    Whether the District Court properly denied Miller’s motion to dismiss for speedy

trial violation.

¶15    This Court clarified its speedy trial test in State v. Ariegwe, 2007 MT 204, ¶¶ 18-

117, 338 Mont. 442, 167 P.3d 815. Whether a defendant has been denied the right to a

speedy trial presents a question of constitutional law. Ariegwe, ¶ 119. We review de

novo a district court’s legal conclusions to determine whether the court correctly

interpreted and applied the law. Ariegwe, ¶ 119. We will not disturb the factual findings

underlying a speedy trial ruling unless the findings are clearly erroneous. Ariegwe, ¶ 119.

A finding is clearly erroneous if it is not supported by substantial credible evidence, if the

district court misapprehended the effect of the evidence, or if our review of the record

convinces us that the district court committed a mistake. Ariegwe, ¶ 119.

¶16    When considering a speedy trial claim, the court balances the following four

factors: 1) the length of the delay; 2) the reasons for the delay; 3) the accused’s

responses to the delay; and 4) prejudice to the accused. Ariegwe, ¶¶ 20, 34, 106-12. On

September 27, 2007, the District Court conducted a hearing on Miller’s speedy trial

motion. Following testimony from Miller and argument from counsel, the court balanced

these factors through a “rather lengthy analysis” from the bench. The District Court

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weighed factor one, the length of the delay, heavily against the State, under the

presumption of prejudice. The court weighed factor two, the reasons for the delay,

moderately against the State as institutional delay.     Factor three was also weighed

moderately against the State, indicating that the Defendant sincerely wanted a speedy

trial. Thus, the court weighed factors one, two, and three against the State. However, the

District Court concluded that “the delay of this case has not caused any substantial or

extraordinary prejudice to the Defendant.” Thus, the court reasoned that factor four

weighed heavily in favor of the State and overcame the presumption of prejudice under

factor one, as well as the weight of factors two and three under the totality of the

circumstances. Therefore, the District Court found no deprivation of Miller’s right to a

speedy trial under the Ariegwe test and denied Miller’s motion to dismiss.

¶17    Our review of the record satisfies us that the District Court’s legal conclusions

correctly interpreted and applied the law. We further conclude that the District Court’s

findings are supported by substantial credible evidence, the District Court did not

misapprehend the effect of the evidence, and our review of the record does not convince

us that the District Court committed a mistake. Thus, the District Court’s factual findings

are not clearly erroneous. Therefore, we conclude that the District Court properly denied

Miller’s motion to dismiss for speedy trial violation.

¶18    Whether the District Court properly instructed the jury on witness credibility.

¶19    Miller objected to standard jury instruction MCJI 1-003, which states that when

weighing witness testimony, jurors may consider: “Whether the witnesses have an

interest in the outcome of the case or any motive, bias or prejudice.” Miller argues that

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this instruction offered unnecessary comment on the evidence by the court and instructed

the jury to distrust the defendant’s testimony more than any other testimony, since the

defendant has the most obvious interest in the outcome of the case.

¶20    In considering whether a district court has correctly instructed the jury in a

criminal case, “we determine whether the instructions, taken as a whole, fully and fairly

instructed the jury on the law applicable to the case.” State v. Cybulski, 2009 MT 70,

¶ 34, 349 Mont. 429, 204 P.3d 7. A district court has broad discretion when it instructs a

jury, therefore we review a district court’s decisions regarding jury instructions to

determine whether the court abused its discretion. Cybulski, ¶ 34. This Court will only

find reversible error if the district court’s jury instructions prejudicially affected the

defendant’s substantial rights. Cybulski, ¶ 34.

¶21    The District Court did not abuse its discretion in giving standard jury instruction

MCJI 1-003. Section 26-1-302(4), MCA, permits a jury to consider the “interest of the

witness in the outcome of the litigation or other motive to testify falsely” when weighing

witness credibility. Furthermore, the District Court specifically instructed the jury on

Miller’s presumption of innocence and the State’s burden of proof. Read together, these

instructions fairly instructed the jury on the law regarding witness testimony. Moreover,

since Miller did not testify at trial, he cannot demonstrate any prejudice resulting from

this instruction.

¶22    Whether the District Court properly denied Miller’s motion to compel the mental

health care records of a third-party witness.



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¶23    Miller argues that the District Court should have granted his motion to compel

Johnson’s mental health records because Johnson was a key State witness who was

present at the time of the crime. Miller attempts to distinguish precedent cited by the

District Court by noting that those cases involved victim-witnesses who were minors,

whereas he requested information from a key State witness who was neither a victim nor

a minor.

¶24    This Court reviews evidentiary rulings and orders granting or denying discovery

for an abuse of discretion. State v. Duffy, 2000 MT 186, ¶ 18, 300 Mont. 381, 6 P.3d

453.

¶25    The District Court did not abuse its discretion by declining to compel Johnson to

provide his mental health care records to Miller. The District Court recognized that the

State did not possess the requested health care information, that Johnson had a privacy

interest in his mental health care information, and that Miller failed to show that he was

entitled to such information. Because Johnson’s mental health care information was not

in the hands of the State, but rather in the hands of Johnson, who was a third party to the

criminal proceedings, Miller had no state or federal constitutional due process or

confrontation right to compel an in camera inspection and balancing test to determine

whether such information is discoverable as a threshold matter. See Pennsylvania v.

Ritchie, 480 U.S. 39, 51-61, 107 S. Ct. 989, 998-1003 (1987); State v. Reynolds, 243

Mont. 1, 6-8, 792 P.2d 1111, 1114-15 (1990); State v. Little, 260 Mont. 460, 466-68, 861

P.2d 154, 158-59 (1993). Furthermore, Johnson’s mental health care information is

protected by Montana’s constitutional privacy provision set forth in Article II, § 10 of the

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Montana Constitution. St. James Community Hosp., Inc. v. Dist. Ct., 2003 MT 261, ¶ 8,

317 Mont. 419, 77 P.3d 534. Moreover, Johnson’s mental health care information is

privileged and protected from disclosure by state law. Sections 50-16-501 to -553, MCA

(Uniform Health Care Information Act); §§ 50-16-801 to -818, MCA (Health Care

Information Privacy Requirements for Providers Subject to HIPAA); § 26-1-807, MCA

(Psychologist-client privilege).

¶26    Finally, Miller cannot demonstrate any prejudice from the District Court’s ruling

because Johnson testified at trial that at the time of the incident he was taking medication

for bipolar disorder. Johnson acknowledged that he was not supposed to drink while

taking his medication. Miller’s counsel cross-examined Johnson regarding his mental

health and argued in closing that the jury should evaluate Johnson’s credibility in light of

the alcohol he consumed and the medication he was taking.

¶27    Whether the prosecutors committed plain error in their closing statements

concerning witness credibility and Miller’s silence.

¶28    Miller acknowledges that he did not preserve this issue for appeal by objecting to

the prosecutors’ statements during closing argument. However, relying largely on State

v. Hayden, 2008 MT 274, 345 Mont. 252, 190 P.3d 1091, Miller asks this Court to

exercise plain error review of alleged prosecutorial misconduct during closing argument.

In particular, Miller claims that the prosecutors offered personal opinions as to witness

credibility, called Miller a liar while attesting to Johnson’s credibility, and commented on

Miller’s right to remain silent. Miller argues that this alleged prosecutorial misconduct

calls into question the fundamental fairness of the trial, thereby requiring a new trial.

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¶29     While this Court generally does not review on appeal issues not raised before the

district court, we may review such issues under the plain error doctrine when a

defendant’s fundamental constitutional rights are implicated. Hayden, ¶ 17. We invoke

this discretionary review “sparingly” when failure 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. Hayden,

¶ 17.

¶30     The prosecutorial misconduct warranting reversal in Hayden is easily

distinguished from the facts here. In Hayden, this Court concluded that the prosecutor

unacceptably invaded the province of the jury by eliciting the investigating officer’s

opinion on the credibility of other witnesses and by offering his own opinion regarding

witnesses’ testimony during closing argument.        Hayden, ¶¶ 30-33.      There is no

suggestion here that the prosecutors elicited unacceptable opinion testimony from

witnesses regarding the credibility of other witnesses at trial. All alleged prosecutorial

misconduct here was confined to closing argument. A review of the prosecutors’ entire

closing argument regarding Johnson’s credibility reveals that the prosecutors were

reviewing the evidence supporting Johnson’s credibility. A prosecutor may comment on

the credibility of witnesses and inferences to be drawn from the evidence during closing

argument. State v. Green, 2009 MT 114, ¶ 33, 350 Mont. 141, 205 P.3d 798. The record

reflects that the prosecutors did not simply offer a personal opinion regarding Johnson’s

credibility, but properly argued that Johnson’s conduct, as opposed to Miller’s, showed

that Johnson was credible.       Similarly, we find nothing unacceptable about the

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prosecutor’s suggestion during closing that Miller lied when he stated he had only gone a

little way down the trail. The prosecutor was drawing an inference from the DNA

evidence gathered from a beer can found further down the trail where the confrontation

likely took place.

¶31    Miller’s claim that the prosecutor unacceptably commented on his silence

misconstrues our precedent. Miller claims that the prosecutor improperly commented on

his right to remain silent when the prosecutor stated that Miller said nothing to

Windham’s family even though he knew people were looking for Windham and when the

prosecutor commented on Miller’s refusal to go to the police. The prosecutor did not

improperly comment on Miller’s right to remain silent because his comments were not

directed at Miller’s post-Miranda silence. State v. Clausell, 2001 MT 62, ¶ 61, 305

Mont. 1, 22 P.3d 1111. The prosecutor here commented on Miller’s failure to tell anyone

about Windham’s whereabouts prior to Miller’s arrest. Thus, there was no Doyle error.

¶32    This Court has declined to exercise plain error review to reverse a criminal trial on

the basis of alleged prosecutorial misconduct when prosecutors suggested during closing

argument that defendants lied on the stand or when prosecutors offered personal opinions

regarding witness credibility. State v. Rose, 2009 MT 4, ¶¶ 104-07, 348 Mont. 291, 202

P.3d 749; State v. Lindberg, 2008 MT 389, ¶¶ 16-19, 29-35, 347 Mont. 76, 196 P.3d

1252. Our review of the closing arguments here fails to persuade us that the prosecutors’

comments resulted in a manifest miscarriage of justice, undermined the trial’s

fundamental fairness, or compromised the integrity of the judicial process. Rose, ¶ 107;

Lindberg, ¶ 35. Thus, we decline to exercise our discretionary plain error review.

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¶33    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2003, which provides for

memorandum opinions. It is manifest on the face of the briefs and the record that the

appeal is without merit because the issues are clearly controlled by settled Montana law;

the issues are factual and there clearly is sufficient evidence to support the findings of

fact below; and the issues are ones of judicial discretion and there clearly was not an

abuse of discretion.

¶34    Affirmed.

                                                /S/ MIKE McGRATH


We concur:

/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS




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