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State v. Lau

Supreme Court of Montana

April 17, 2018

STATE OF MONTANA, Plaintiff and Appellee,
MARTIN VINCENT LAU, Defendant and Appellant.

          Submitted on Briefs: March 21, 2018

          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

          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


          Jim Rice, Justice.

         ¶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?


         ¶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 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.

         ¶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 ...

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