# CITY OF KALISPELL v. Miller

> Montana Supreme Court · March 24, 2010 · 355 Mont. 379

URL: https://www.frixlaw.com/law-library/cases/9512348

## Case

- **Full name:** CITY OF KALISPELL, Plaintiff and Appellee, v. MOLLY MILLER, Defendant and Appellant
- **Court:** Montana Supreme Court
- **Decided:** March 24, 2010
- **Citations:** 355 Mont. 379; 230 P.3d 792; 2010 MT 62; 2010 Mont. LEXIS 71
- **Precedential status:** Published
- **Opinion:** Dissent by Morris
- **Judges:** Patricia O. Cotter
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9512348

## Opinion text

JUSTICE MORRIS
dissents.
¶29 The Court overreaches in its search for prejudice and perpetuates *386 the stereotypes from which it professes to protect Miller. I disagree with the Court’s conclusion that the municipal court improperly admitted evidence of Miller’s intimate relationship with Benware. The State’s allegedly prejudicial remarks emphasized the intimate nature of the relationship between Miller and Benware in order to demonstrate that Miller had a motive to make the call in order to protect Benware. The State’s characterization of the relationship did not emphasize its same sex nature. The State instead focused on the length and intimacy of the relationship between Miller and Benware.
¶30 The State argued that the long-term intimate nature of the relationship between Miller and Benware proved qualitatively different than a mere friendship to demonstrate Miller’s motive to protect Benware. The Court appears to concede that evidence regarding the nature of the relationship would have been relevant and admissible had the relationship been a heterosexual one. ¶ 14. Yet the Court concludes that such evidence should have been inadmissible here solely because it concerned a same sex relationship. Id.
¶31 Miller used voir dire in an effort to uncover any potential for prejudice arising from Miller’s sexual orientation and her relationship with Benware. Miller’s counsel questioned the jury exhaustively about same sex relationships and the potential for prejudice against a lesbian defendant. Miller’s counsel failed to unearth any potential prejudice during voir dire. I would not assume that any unspoken prejudice among the potential jurors rose to the level of a potential juror being more likely to convict Miller for misdemeanor obstruction of a peace officer due to the fact that Miller and Benware had established an intimate relationship for thirteen years. I dissent from the Court’s conclusion that these limited remarks tainted the jury to the point of depriving Miller of a fair trial.
CHIEF JUSTICE McGRATH and JUSTICE RICE join in the foregoing dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9512348. Public record. Not legal advice.