                                                                                               04/17/2018


                                          DA 15-0270
                                                                                           Case Number: DA 15-0270

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2018 MT 93



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

MARTIN VINCENT LAU,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Ninth Judicial District,
                       In and For the County of Teton, Cause No. DC 12-09
                       Honorable Robert G. Olson, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate
                       Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant
                       Attorney General, Helena, Montana

                       Dan Guzynski, Ole Olson, Special Deputy County Attorneys for Teton
                       County, Helena, Montana

                       Joe W. Coble, Teton County Attorney, Choteau, Montana



                                                   Submitted on Briefs: March 21, 2018

                                                              Decided: April 17, 2018

Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Martin Lau appeals his conviction for deliberate homicide in the Ninth Judicial

District Court, Teton County. We affirm, addressing the following issue:

       Did the prosecutor commit misconduct during closing argument that prejudiced
       Lau’s right to a fair trial and warrants plain error review?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     Lau fatally shot Donald Kline on August 18, 2012. The shooting occurred at the

ranch home of Susan Pfeifer in Teton County. At the time, Kline was Pfeifer’s live-in

boyfriend, but Kline had made allegations about Lau’s possible romantic involvement with

Pfeifer. Kline and Pfeifer were in Choteau trying to retrieve their truck when Kline became

angry and walked off. Upon Pfeifer’s request, Lau picked Pfeifer up and drove to her house

to look for the truck key, which Kline had apparently lost. Kline showed up unexpectedly

at the house, and an altercation ensued between Lau and Kline. Lau called 911 and ended

up on the front porch, locked out of the home. Lau, who claimed to be concerned about

Pfeifer’s safety, re-entered the home through a back door with a 9 millimeter carbine, and

the altercation with Kline continued. Lau fired the weapon twice, with one shot hitting the

floor, and the other striking Kline in the hand and neck at very close range. Kline later

died of his injuries, and the State charged Lau with deliberate homicide.

¶3     At his four-day trial, Lau raised the defense of justifiable use of force. He claimed

that he re-entered the home to protect Pfeifer because he believed Kline was drunk and

abusive. Lau asserted that Kline attacked him, and he fired the first shot into the floor as a

warning, and fired the second shot only after Kline struck him in the face. The State
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asserted Lau did not have an actual or reasonable belief that he was going to be seriously

injured when he shot Kline, and that Lau was the aggressor, making him ineligible for the

defense of justifiable use of force.

¶4     Lau’s defense was based heavily on the law, and used nearly every opportunity

throughout the trial to offer his interpretation of Montana’s self-defense statutes. During

voir dire, defense counsel quoted from the expected self-defense jury instructions. In his

opening statement, defense counsel further expounded on the laws governing justifiable

use of force. When defense counsel sought to introduce the statutes into evidence and

cross-examine the State’s witnesses about them, the State objected. However, the District

Court permitted the defense to “go there,” reasoning that “the jury’s been told over and

over again that they’re gonna hear the instructions from the Court,” and instructing counsel

that if any statement was made that was inconsistent with the instructions, they could take

it up in their jury arguments. The court thus permitted Lau to ask the investigators what

they knew about the justifiable use of force statutes and how their knowledge impacted the

investigation. On cross examination of the investigating officer, the defense introduced

selective portions of the statutes into evidence and questioned the officer about the law,

including the “open carry” statute and the definition of serious bodily harm and injury. In

response, on redirect, the State introduced several related statutes, including defense of an

occupied structure and the aggressor statute. During closing arguments, defense counsel

extensively argued the law. The prosecutor also argued about the law, and the defense

interposed no objections about the State’s argument.

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¶5     The jury convicted Lau of deliberate homicide and the District Court sentenced Lau

to fifty-two years in the Montana State Prison, with twelve years suspended. Lau appeals,

arguing the prosecutor committed misconduct during closing arguments, and seeks plain

error review.1

                                 STANDARD OF REVIEW

¶6     Generally, “this Court does not address issues of prosecutorial misconduct

pertaining to a prosecutor’s statements not objected to at trial.” State v. Ritesman, 2018

MT 55, ¶ 12, 390 Mont. 399, ___ P.3d ___ (citations omitted). However, we may exercise

discretion and review such issues under the plain error doctrine when “failing to review the

claimed 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.” State v. Stutzman, 2017 MT 169, ¶ 23, 388 Mont. 133,

398 P.3d 265 (citations omitted). “We use our inherent power of common law plain error

review sparingly, on a case-by-case basis, and only in a narrow class of cases.” Ritesman,

¶ 12 (citations omitted). “Once the doctrine is invoked, this Court’s review is grounded in

our ‘inherent duty to interpret the constitution and to protect individual rights set forth in

the constitution.’” State v. Lawrence, 2016 MT 346, ¶ 6, 386 Mont. 86, 385 P.3d 968

(citations omitted).




1
 Prior to trial, we granted a writ of supervisory control in this case regarding evidentiary issues.
See State v. Mont. Ninth Judicial Dist. Court, 2014 MT 188, 375 Mont. 488, 329 P.3d 603.
                                              4
¶7     “We will not undertake full analysis of the alleged error each time a party requests

plain error review.” Ritesman, ¶ 12 (citations omitted). When the circumstances of a case

do not warrant application of the plain error doctrine, we need not address the merits of the

alleged error. Stutzman, ¶ 23 (citations omitted). “Conducting a full analysis in order to

determine whether to find plain error would defeat the underlying rule that a party must

object to error at trial, because errors should be brought to the attention of the trial court

where they can be initially addressed.” Ritesman, ¶ 12 (citations omitted).

                                      DISCUSSION

¶8     Did the prosecutor commit misconduct during closing argument that prejudiced
Lau’s right to a fair trial and warrants plain error review?

¶9     Lau argues his due process right to a fair trial was compromised by statements made

by the prosecutor during closing argument. Because Lau did not object to the statements,

he asks us to invoke plain error review.

¶10    Lau argues that the prosecutor’s argument overstated the level of injury he needed

to fear to justify the use of a firearm in self-defense. Because Lau offered evidence that he

acted in self-defense, the burden shifted to the State to prove beyond a reasonable doubt

that Lau was not justified in his use of force. Section 46-16-131, MCA; State v. Daniels,

2011 MT 278, ¶¶ 14-15, 362 Mont. 426, 265 P.3d 623. To be justified in the use of deadly

force, Lau had to reasonably believe he was preventing “serious bodily harm” or “serious

bodily injury.” See §§ 45-3-102, -101, 45-5-202, MCA. Serious bodily injury includes an

injury that, “at the time of injury, can reasonably be expected to result in serious permanent

disfigurement or protracted loss or impairment of the function or process of a bodily
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member or organ.” Section 45-2-101(66)(a)(iii), MCA. Though similar, serious bodily

harm is undefined by statute and has a meaning unique from serious bodily injury. See

State v. Bashor, 188 Mont. 397, 422, 614 P.2d 470, 484 (1980).

¶11    Lau points to this statement by the prosecutor during closing:

       [I]f someone’s gonna punch you in Montana, you can’t shoot ‘em. Life’s too
       valuable . . . . But if you had a reason to believe and you believe, genuinely
       believe that’s a reasonable belief and we talked about this—only you folks
       will determine what’s reasonable—that they would cause serious bodily
       injury. And you have an instruction on serious bodily injury. Injury that
       you’re not going to walk away from. You could have broken bones, death,
       long-term impairment. If you reasonably believe someone is going to cause
       that type of harm to you, you can shoot them. But you can’t shoot them if
       they punch you. That’s what it states in instruction number 22.

Lau argues that this statement is a misinterpretation of the law and foreclosed the jury from

finding a punch to the head could indeed cause a serious bodily injury or harm; and that a

person could potentially “walk away” from a serious bodily injury or harm, for instance,

in the case of a closed head injury that results in a concussion. In his own closing, Lau

countered by arguing that serious bodily harm could indeed be caused by a single punch,

and referenced several cases where a single punch caused significant injury.

¶12    Lau also argues the prosecutor improperly invited the jury to engage in statutory

interpretation and to conclude that Lau’s display of a weapon was a “provocation.” Lau’s

argument is premised upon several statutes, including § 45-3-105, MCA, which provides

that justifiable use of force is not available to an “aggressor” who “purposely or knowingly

provokes the use of force against the person,” and § 45-3-111(2), MCA, which provides

“[i]f a person reasonably believes that the person or another person is threatened with

                                          6
bodily harm, the person may warn or threaten the use of force including deadly force,

against the aggressor, including drawing or presenting a weapon.” This latter provision,

sometimes referred to as the “open carry law,” also provides that a person, unless otherwise

prohibited, may “openly carry a weapon and may communicate to another person the fact

that the person has a weapon.” Section 45-3-111(1), MCA.

¶13    In this regard, the State argued that Lau provoked Kline and was thus ineligible to

claim justifiable use of force. Lau responded in his closing argument that he did nothing

to provoke Kline, and that the Legislature’s enactment of the open carry law entitled him

to display a weapon. In its rebuttal, the State responded as follows:

       Now the Defense makes a big deal out [of] the fact that Lau had a right to
       brandish his weapon in the house. You know, sure. You can brandish your
       weapon[,] but is it a provocation in this situation? Was it a good idea?
       Absolutely not. And I’ll tell you what, if you went to the Montana
       Legislature when they were passing this and told them that that’s what people
       were going to do, that Marty Lau was going to intervene in domestic violence
       situations with a semi-automatic rifle and start waiving it around, they never
       would have passed it. That’s not what it’s for.

Lau argues it was improper for prosecutors to comment on the Legislature’s thinking in

passing the open carry law, implying personal knowledge of the legislative proceedings,

and inviting the jury to consider the intent, rather than the text, of the law. Lau also argues

the State’s interpretation is incorrect.

¶14    Lau did not object to the prosecutor’s statements at trial, and now seeks plain error

review. However, we conclude that Lau has not demonstrated that failure to review these

asserted errors would result in a miscarriage of justice, raise a question about the

fundamental fairness of the proceedings, or compromise the integrity of the judicial
                                           7
process. See Lawrence, ¶ 11. Lau was given considerable latitude by the District Court to

try the case as he wanted, including extensive use of the statutes during witness

examination and argument.        He adamantly argued for his interpretation of the law

throughout the trial. He concedes that the jury instructions properly stated the law. His

assertion that the prosecutor made brief misstatements about the law that prejudiced him,

in the context of a four-day trial that focused extensively on the law, does not persuade us

that plain error review is necessary to preserve the trial’s integrity.

¶15    Affirmed.



                                                   /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA




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