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Buhr v. Flathead County12/8/1994
erely urged the jury to recognize the importance of its role and its decision. We conclude, therefore, that the District Court did not abuse its discretion by denying Buhr's motion for a new trial on the basis of this comment.
5. Did Wilder's attorney prejudice the jury by making improper remarks while questioning witnesses and during closing argument?
Buhr offers numerous examples of allegedly prejudicial comments by Wilder's counsel. Many of the examples involve counsel's introducing questions with comments such as "I am sure after three days of deposition and all this questioning, you are probably getting tired of lawyers questioning you" and "Doctor, you can characterize it any way you want, but I want to talk about the facts." Others involve comments Buhr contends were arguments directed "to the jury's hometown feelings of loyalty," the jury's resentment of the length of the trial, and the attorney's use of a deposition.
Buhr asserts that the cumulative effect of these comments impaired his right to a fair trial and, as a result, that the District Court erred in denying his motion for a new trial. Again, we disagree.
"Improper argument requires reversal only when prejudice has resulted which prevented a fair trial." Moralli, 839 P.2d at 1292 (citation omitted). "Unless a level of prejudice can be shown that manifestly precludes a fair trial, then there is no reversible error." Whiting v. State (1991), 248 Mont. 207, 220-21, 810 P.2d 1177, 1186 (citation omitted).
The trial judge is in the best position to determine the prejudicial effect of an attorney's conduct. Kuhnke v. Fisher (1987), 227 Mont. 62, 68, 740 P.2d 625, 628. Here, Buhr advances a number of comments made by Wilder's counsel over the course of a six-week trial. Buhr objected to many of the comments and, in some cases, succeeded in having the question or comment rephrased or stricken. In other instances, he did not object. Moreover, the jury was instructed that, regarding "any question to which an objection was sustained, you must not conjecture as to what the answer might have been or as to the reason for the objection; nor must you draw any inference from the question itself." Given this instruction, the length of the trial, and the limited number of allegedly improper comments made, we conclude that these comments made by Wilder's attorney did not prejudice the jury or impair Buhr's right to a fair trial.
6. Did the cumulative effect of the asserted errors prejudice Buhr to the extent that he was unable to receive a fair trial?
Buhr contends that the cumulative effect of the errors which occurred during trial was prevention of a fair trial on the merits of his claims. Given our resolution of issues 1 through 5, we conclude that this argument is without merit.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, WEBER and SHERLOCK, District Court Judge, sitting for Justice Terry N. Trieweiler, concur.
JUSTICE NELSON dissenting.
I concur with our opinion except as to our discussion of Issue 3c, and as to that issue, I respectfully dissent. I conclude that the jury's finding that Mental Health was not negligent was contrary to the law.
Section 53-21-102, MCA (1987), defines a "professional person" as either a medical doctor or a person who has been certified, as provided for in § 53-21-106, MCA, by the department of institutions. Moreover, § 53-21-105, MCA (1987), provides that " o person may act in a professional capacity as provided for in [Title 53, Chapter 21, Part 1] unless he is a professional person as defined in 53-21-102."
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