State v. Killsontop ( 2016 )

09/20/2016
DA 14-0756
Case Number: DA 14-0756
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 235N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
KURTIS LEE KILLSONTOP,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-14-43
Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Paul D. Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C.,
Kalispell, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: August 24, 2016
Decided: September 20, 2016
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, 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 Kurtis Killsontop appeals from his March 2014 conviction and sentence on two
counts of assault with a weapon. Killsontop contends that the District Court erred in
admitting testimony of one victim’s prior consistent statement. We affirm.1
¶3 In December 2013 police officers in Missoula responded to a report of a stabbing
at a residence. The officers found several highly intoxicated persons, including
Killsontop and Regina Matt, who had been stabbed. Matt, Killsontop and others who had
been at the residence gave varying accounts of what happened and whether Killsontop
stabbed the victims.
¶4 At trial Matt testified that Killsontop stabbed her and she acknowledged that as
officers escorted her out of the residence she repeatedly yelled that Killsontop had
stabbed her. She testified that she did not actually see Killsontop stab her, but that
someone at the hospital told her that it happened. Matt admitted that she later told
officers that some “Native dudes” stabbed her, but that another person who had been at
1
The issues on appeal relate only to the assault on victim Matt. Killsontop does not
attack his conviction for assaulting victim Swanson.
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the residence coached her to say that. Killsontop gave varying accounts about what
happened and ultimately claimed that both stabbings were accidents.
¶5 Detective Lang interviewed victim Matt shortly after the incident and again just
prior to the trial. Lang testified, over defense objection, that Matt told him in the second
interview that Killsontop stabbed her. Lang also testified that Matt told him that any
different account she gave resulted from being coached by another person who had been
present at the residence.
¶6 On appeal Killsontop contends, and the State agrees, that Detective Lang’s
account of what Matt told him was not admissible under M. R. Evid. 801(d)(1)(B) as a
prior consistent statement because the defense did not impeach Matt with allegations of
subsequent fabrication, improper influence or motive. In addition, both sides agree that
this was trial error, not structural error. The State, however, argues that the error was
harmless and does not support reversal of the conviction.
¶7 A conviction may not be reversed unless the record shows that the error was
prejudicial to the defendant. Section 46-20-701(1), MCA. A trial error may be
non-prejudicial if there was other evidence admitted to prove the same facts as the tainted
evidence, and if the quality of the tainted evidence was such that there was no reasonable
possibility that it contributed to the conviction. State v. Van Kirk, 2001 MT 184, ¶ 44,
306 Mont. 215, 32 P.3d 735. Here there was evidence, other than Lang’s testimony about
what Matt said to him, to prove that Killsontop stabbed Matt. Matt testified on direct that
there was “no doubt” that Killsontop stabbed her. Witness Gillis testified that Killsontop
stabbed Matt in the back and that Matt ran out of the residence screaming that she had
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been stabbed. When police arrived Matt lunged at Killsontop and screamed that he had
stabbed her. And Killsontop testified that he stabbed both victims, but by mistake.
Detective Lang’s testimony that Matt said the same thing to him was not significant
qualitatively. There was not a reasonable possibility that it contributed to the conviction.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, this case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶9 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
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