11/18/2025
DA 23-0604
Case Number: DA 23-0604
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 265N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BOBBY FRANCIS LOWRY,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDC 2021-537
Honorable Michael F. McMahon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James C. Murnion, Murnion Law, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Selene Koepke,
Assistant Attorney General, Helena, Montana
Kevin Downs, Lewis and Clark County Attorney, Ann Penner,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: September 3, 2025
Decided: November 18, 2025
Filed:
__________________________________________
Clerk
Justice Jim Rice 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 Bobby Lowry (Lowry) appeals his jury conviction of accountability for aggravated
assault in the First Judicial District Court, Lewis and Clark County, challenging statements
made by the prosecutor during closing argument as plain error, and claiming he received
ineffective assistance of counsel (IAC). We affirm.
¶3 On October 26, 2021, at Lewis and Clark County Detention Center, S.H. was
cleaning his cell when four fellow inmates entered his cell in “Pod 3” and attacked him,
calling him a “snitch.” S.H. ended up beneath his bunkbed, where he was knocked
unconscious. He awoke underneath his bed covered in his own blood and stool. His nose
and several lower-back vertebrae were broken. After he came to, S.H. cleaned himself and
reported to detention officers that he had fallen, fearing retaliation from the inmates if he
reported the attack.
¶4 Following an investigation, the State identified Kaleb Verley, Garret Hamilton,
Wesley Rhodes, and Lowry as the assailants. The State initially charged Lowry with
aggravated assault, but prior to trial amended the Information to include accountability for
aggravated assault as an alternative charge against Lowry. Verley, Hamilton, and Rhodes
all pled guilty to aggravated assault or accountability therefor, and were compelled to
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testify against Lowry under a grant of use immunity. At trial, each of the three men gave
conflicting testimony. Verley testified that he had attacked S.H. alone. Rhodes testified
that there was a plan to attack S.H. with the other inmates, although Rhodes said he did not
see Lowry assault S.H. Hamilton testified that he did not remember Lowry being present
during the assault. S.H. testified that Lowry, Verley, Rhodes, and Hamilton “all attacked”
him. S.H. was unable to specifically correlate the assaultive actions taken against him to
each assailant during the time he was under his bunk: the bed blocked his view of each
assailant’s face and differentiating between each assailant based on visible lower portions,
like shoes or pants, was inconclusive as each assailant was wearing the same jail-issued
attire.
¶5 Detention Officer Ball was the first to make contact with S.H. after the assault and
testified that he saw S.H. with a bloody face and back and walking with a limp. Officer
Ball requested assistance from a nurse and moved S.H. to be ready for transport to the
hospital. Officer Ball testified about the layout of Pod 3 and the location of S.H.’s cell and
security cameras within the pod. Officer Ball explained that the security cameras could
view only halfway into S.H.’s cell due to their location relative to the entrance of the cell.
Officer Ball also explained that each pod has an emergency call button and a “kiosk,” a
media center where an inmate can make requests to the detention center and check their
messages.
¶6 Deputy Sheriff Blair led the investigation into the incident. He testified as follows
regarding the Detention Center’s surveillance video:
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[PROSECUTOR]: As part of your investigation, did you review any footage
of Pod 3?
[DEPUTY BLAIR]: I did.
[PROSECUTOR]: And did you see Mr. Lowry in that video?
[DEPUTY BLAIR]: Yes, ma’am, I did.
[PROSECUTOR]: Okay. Were you able to get a copy of that footage?
[DEPUTY BLAIR]: Yes, I was.
[PROSECUTOR]: Okay. Sorry. When you -- When you obtained a copy of
that footage from the jail, did you make any edits to it?
[DEPUTY BLAIR]: I did not.
[PROSECUTOR]: Okay. And what did you do with that footage once you
got it from that jail control room?
[DEPUTY BLAIR]: I entered [sic] into the WatchGuard Evidence Library.
[PROSECUTOR]: Okay. So, Your Honor, if I may approach the witness?
[DISTRICT COURT]: Certainly.
[PROSECUTOR]: I am showing you what I am going to mark as State’s
Exhibit 3. Based on the description, do you recognize that video?
[DEPUTY BLAIR]: Yes, ma’am.
[PROSECUTOR]: And do you believe viewing of the video would help the
jury to determine the facts of what happened on that day?
[DEPUTY BLAIR]: Yes, I do.
[PROSECUTOR]: So, Your Honor, I would move to admit State’s Exhibit 3.
[DISTRICT COURT]: Any objection?
[LOWRY’S TRIAL ATTORNEY]: No objection.
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[DISTRICT COURT]: Exhibit 3 is admitted.
¶7 While the surveillance video was being played for the jury, Deputy Blair identified
each of the four assailants as they entered S.H.’s cell during the time of the assault. Due
to the security camera’s angle of view and its location relative to the cell, the video did not
capture the assault directly. The video showed Lowry leaving S.H.’s cell during the
assault, checking the pod’s kiosk, and shortly thereafter re-entering the cell. Deputy Blair
testified that, during his investigation, he “zoomed in” on the portion of the video when
Lowry was at the kiosk and determined that Lowry was scrolling through his electronic
messages rather than reporting the assault or making a medical request. The zoom-in
feature was not available on the video as played at trial.
¶8 Lowry testified in his defense, stating that he did not assault S.H. and did not
participate in any plan to assault S.H. The jury found Lowry not guilty of aggravated
assault but found him guilty of accountability for aggravated assault.
¶9 After the trial, Lowry moved for a mistrial, arguing that he was “denied a fair trial
because the jury viewed [him] in handcuffs for an undetermined amount of time outside
the courtroom” when Lowry was being escorted from the jail into the courthouse. The
District Court conducted a hearing on the mistrial motion, and Lowry played courthouse
surveillance video taken during his trial. The video showed Lowry being escorted, with
his hands apparently in handcuffs behind him, down a hall adjacent to a room where
prospective jurors were gathering. Lowry claimed the door to the prospective juror
meeting room was open and that potential jurors could see him walking down the hallway
in handcuffs before a security guard closed the door. He acknowledged that the
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surveillance cameras did not capture his handcuffs but stated that he “believe[d] that
prospective jurors sitting against the opposite wall in the main room could see his
handcuffs.” In opposition, the State argued that the video illustrated that “Lowry was not
placed into handcuffs within the confines of the courtroom” and that, “when Lowry both
entered and exited the courtroom during trial, he was not physically in handcuffs.” The
District Court denied the motion, reasoning that “Lowry has failed to demonstrate actual
prejudice if, as he speculates, prospective jurors observed him momentarily in handcuffs
outside of the courtroom in the third floor back hallway.” Lowry appeals, challenging two
statements made by the prosecutor as plain error, and claiming his trial counsel rendered
IAC.
¶10 “We generally ‘do not address issues of prosecutorial misconduct pertaining to a
prosecutor’s statements not objected to at trial.’” State v. Aker, 2013 MT 253, ¶ 21,
371 Mont. 491,
310 P.3d 506 (quoting State v. Longfellow,
2008 MT 343, ¶ 24,
346 Mont.
286,
194 P.3d 694). However, “we may review such issues under the plain error doctrine.”
State v. Mercier,
2021 MT 12, ¶ 13,
403 Mont. 34,
479 P.3d 967.
¶11 “Only record-based ineffective assistance of counsel claims are considered on direct
appeal.” Aker, ¶ 22. To the extent such claims are reviewable, they present mixed
questions of law and fact that we review de novo. State v. Howard,
2011 MT 246, ¶ 18,
362 Mont. 196,
265 P.3d 606. We review claims of ineffective assistance of counsel
according to the Strickland standard. State v. Weber,
2016 MT 138, ¶ 11,
383 Mont. 506,
373 P.3d 26 (citation omitted).
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¶12 Lowry contends that the prosecutor twice improperly offered her personal belief that
he was guilty and thus committed misconduct. Lowry challenges the prosecutor’s
statement in the early part of her closing argument, as highlighted:
The State has charged Bobby Lowry with aggravated assault, or in the
alternative, accountability for aggravated assault. This means that the State
believes that Bobby Lowry either committed the offense personally against
[S.H.] or, at the very least, he aided and abetted others in committing this
beatdown against [S.H.]. The judge just read you a real long list of
instructions, and you will obviously be permitted to take those back with you
during deliberations. But let’s talk about some of the applicable law that you
are going to have to discuss when you go back to the jury room. Let’s talk
about the elements of aggravated assault. That’s Instruction 18.
(Emphasis added.) Lowry also challenges the following statement, occurring later in the
prosecutor’s closing argument:
But what the State would tell you is this: We didn’t charge Mr. Lowry
because he was there, we charged Mr. Lowry because, upon review of the
evidence, the State firmly believes that Mr. Lowry, number one, knew what
was going on, and, number two, made every attempt he could to assist it, or,
in the alternative, that, number three, as [S.H.] testified, Mr. Lowry assaulted
[S.H.] himself.
(Emphasis added.) Immediately prior to this statement, the prosecutor had stated:
“I understand the judge’s instructions and, obviously, No. 23[1] that Mr. Lowry’s mere
presence in the pod is not enough to convict him of accountability to aggravated assault.”
On appeal, Lowry acknowledges that no objections were made to these comments and
therefore asks the Court to undertake plain error review to preserve the fundamental
fairness of the proceeding, as these comments “invade[d] the province of the jury.” Lowry
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Jury Instruction No. 23 provided a mere presence instruction, reciting: “The Defendant’s mere
presence at the scene of the charged offenses is an insufficient basis upon which to find him guilty
of any offense for which the Defendant is here on trial.”
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likens his case to cases where we invoked plain error review for prosecutorial misconduct:
State v. French, 2018 MT 289,
393 Mont. 364,
431 P.3d 332; State v. Stringer,
271 Mont.
367,
897 P.2d 1063 (1995); and State v. Musgrove,
178 Mont. 162,
582 P.2d 1246 (1978).
¶13 “The purpose of plain error review is to correct an otherwise objectionable error not
objected to at trial that impacts the ‘fairness, integrity, and public reputation of judicial
proceedings.’” Mercier, ¶ 35 (quoting State v. Lawrence,
2016 MT 346, ¶ 9,
386 Mont.
86,
385 P.3d 968). Invoking the plain error doctrine is discretionary and may be exercised
in situations that “implicate a defendant’s fundamental constitutional rights when failing
to review the alleged error may result in a manifest miscarriage of justice, leave unsettled
the question of the fundamental fairness of the proceedings, or compromise the integrity of
the judicial process.” State v. Hayden,
2008 MT 274, ¶ 17,
345 Mont. 252,
190 P.3d 1091.
“[W]e employ the doctrine sparingly, on a case-by-case basis, considering the totality of
circumstances of each case,” and, accordingly, “[t]he party requesting reversal because of
plain error bears the burden of firmly convincing this Court that the claimed error”
implicates review under the doctrine. State v. Bryson,
2024 MT 315, ¶ 24,
419 Mont. 490,
560 P.3d 1270 (internal citation omitted).
¶14 “Prosecutorial misconduct calls for reversible error if it prejudices a defendant’s
substantial rights.” Mercier, ¶ 37. A prosecutor generally may not “express a direct
personal opinion or belief that the accused is guilty or the one who committed the charged
offense.” State v. Miller,
2022 MT 92, ¶ 24,
408 Mont. 316,
510 P.3d 17; see also M. R.
Pro. Cond. 3.4(e) (“A lawyer shall not . . . in trial . . . state a personal opinion as to
the . . . guilt or innocence of an accused[.]”). A prosecutor “may appropriately comment
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on ‘the gravity of the crime charged, the volume of evidence, credibility of witnesses,
inferences to be drawn from various phases of evidence, and legal principles involved.’”
Mercier, ¶ 37 (citation omitted). Alleged improper comments are reviewed “in the context
of the entire argument.” State v. McDonald, 2013 MT 97, ¶ 14,
369 Mont. 483,
299 P.3d
799.
¶15 In the context of the prosecutor’s full argument, the statements are akin to
summaries of the particular charges against Lowry and the reasons the State filed the
charges in the manner it did, rather than statements of the prosecutor’s personal belief that
Lowry was guilty. The first statement was made during an explanation of what charges
Lowry faced and the elements for each crime. The second statement was made within a
discussion of the legal principles related to the accountability charge and the mere presence
jury instruction, and what “the state believe[d]” was supported by the evidence. Neither
statement conveyed the prosecutor’s own personal opinion. In contrast, the plain error
cases relied upon by Lowry all involved flagrantly improper statements. See French, ¶ 22
(the prosecutor informed the jury that the defendant had previously been convicted of the
same charges in an earlier trial); Stringer,
271 Mont. at 379,
897 P.2d at 1071 (the
prosecutor called the defense witnesses “liars”); Musgrove,
178 Mont. at 171,
582 P.2d at
1252 (The prosecutor called the defendant a liar and commented on his guilt: “I’m
convinced that Musgrove is a liar and he is responsible.”). These cases are plainly
distinguishable.
¶16 A prosecutor, “based on the evidence, applicable law as stated in the jury
instructions, and his or her analysis of the evidence, . . . may properly comment on and
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argue for any position or conclusion regarding the nature, quality, or effect of the evidence
in relation to the applicable law and the prosecutor’s burden of proof.” Miller, ¶ 22
(internal quotations omitted) (emphasis in original). Having reviewed the trial transcript
and considered the challenged statements in context, we conclude that Lowry’s right to a
fair trial was not undermined by the prosecutor’s closing argument and that exercise of
plain error review is not necessary to preserve “the fundamental fairness of the
proceedings.” Hayden, ¶ 17.
¶17 Further, Lowry contends he received IAC at trial because defense counsel failed to
object to the challenged statements made by the prosecutor during closing arguments
discussed above, the admission of a surveillance video for lacking authentication, and
assertedly prejudicial testimony by Officer Blair about the video. He also contends that
defense counsel was ineffective for failing to immediately move for a mistrial after Lowry
told counsel that potential jurors may have seen him in handcuffs.
¶18 The United States and Montana Constitutions guarantee criminal defendants the
right to effective counsel. State v. Weber, 2016 MT 138, ¶ 21,
383 Mont. 506,
373 P.3d
26. We have adopted the two-part test articulated by the United States Supreme Court in
Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052 (1984). Whitlow v. State,
2008 MT 140, ¶ 10,
343 Mont. 90,
183 P.3d 861. To demonstrate IAC, “a defendant must
prove both that (1) counsel’s performance was deficient, and (2) counsel’s deficient
performance prejudiced the defense.” State v. Ward,
2020 MT 36, ¶ 18,
399 Mont. 16,
457 P.3d 955. “Failure of either prong is fatal to an IAC claim.” State v. Edwards,
2011 MT 210, ¶ 22,
361 Mont. 478,
260 P.3d 396. There is a “strong presumption that
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counsel’s conduct falls within the wide range of reasonable professional assistance.”
Whitlow, ¶ 21. Because the record here illustrates that defense counsel either did not
perform deficiently or that Lowry was not prejudiced by counsel’s actions, we address the
IAC claims on appeal.
¶19 Regarding the prosecutor’s statements, we have determined above that they did not
rise to error that undermined the fairness of the proceedings, such that plain error review
was necessary, and we likewise conclude, for purposes of the second prong of the
Strickland test, that Lowry was not prejudiced thereby. See Heddings v. State, 2011 MT
228, ¶ 33,
362 Mont. 90,
265 P.3d 600 (“[A] claim of constitutionally ineffective assistance
of counsel will not succeed when predicated upon counsel’s failure to make motions or
objections which, under the circumstances, would have been frivolous, which would have
been, arguably, without procedural or substantive merit, or which, otherwise, would likely
not have changed the outcome of the proceeding.”).
¶20 Lowry also claims his defense counsel rendered IAC by failing to object to
admission of the surveillance video when the State moved for its admission during Deputy
Blair’s testimony, despite the insufficiency of Deputy Blair’s testimony to authenticate the
video. Further, Lowry claims IAC when counsel did not object to Deputy Blair’s testimony
where he identified Lowry in the surveillance video and referenced “zooming in” to view
what Lowry was doing at the kiosk during his investigation, when the zoom-in function
was not available on the trial version of the video.
¶21 Video evidence can be properly authenticated when a trial court is “satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent
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claims.” M. R. Evid. 901(a). A trial court judge has wide discretion in determining the
adequacy of foundation for the admission of evidence. City of Missoula v. Forest,
236 Mont. 129, 134,
769 P.2d 699, 702 (1989). Lowry notes that Deputy Blair’s testimony
did not discuss how the video was made or that he had personal knowledge of the accuracy
of its contents. Rather, Deputy Blair discussed how he obtained the video. Other
foundation was laid when Officer Ball testified that he was familiar with the jail’s cameras
and their location and explained the field of view for each camera. Deputy Blair added
that he reviewed the jail video and did not edit it.
¶22 Further testimony is necessary from a witness to expressly authenticate that a jail
video is a true and accurate depiction of the jail’s interior, such that it is “what it is claimed
to be.” See M. R. Evid. 901(b)(1); State v. High Elk,
2006 MT 6, ¶ 35,
330 Mont. 259,
127 P.3d 432 (officer’s testimony that photographs “were true and accurate depictions of
the wounds he observed” on the defendant “was sufficient to authenticate the
photographs”). Notably, the video was the central evidence of the State’s case, and had
there been an objection, the District Court could have required additional foundational
testimony. However, the State had witnesses available who could have provided it. Under
these circumstances, it is clear that an objection by defense counsel, even if sustained,
would not have affected the ultimate outcome of the proceeding and, as such, was not
prejudicial to Lowry. Lowry faults defense counsel for failing to object to Deputy Blair’s
testimony about his “zooming in” of the video to view Lowry’s actions at the kiosk and
testifying about what “it appeared” Lowry was doing at the kiosk, when that feature was
not available at trial. Again, such an objection may have prompted further inquiry into
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whether the video was the appropriate version, M. R. Evid. 1002, and whether that version
could be provided, but Deputy Blair was nonetheless permitted to testify about his
observations, and we cannot conclude such an objection, if made, would have affected the
outcome of the trial.
¶23 Lowry’s IAC claim regarding his appearance in the hallway with handcuffs is
premised upon defense counsel’s failure to move for a mistrial earlier, such that the
potential jurors could have clarified whether they had seen Lowry in handcuffs. However,
even if potential jurors had seen him in handcuffs, the “right to be free of shackles during
trial need not be extended to the right to be free of shackles while being taken back and
forth between the courthouse and the jail.” Porter v. State, 2002 MT 319, ¶ 28,
313 Mont.
149,
60 P.3d 951 (quoting State v. Baugh,
174 Mont. 456, 462-63,
571 P.2d 779, 782-83
(1977)). As we explained in Baugh, a defendant is not entitled to a mistrial solely because
he was momentarily or inadvertently seen in handcuffs by a juror. Baugh,
174 Mont. at
463,
571 P.2d at 783. We have consistently held that in the absence of evidence indicating
prejudicial consequences, a jury momentarily and inadvertently observing a defendant in
restraints does not warrant a mistrial. Compare State v. Pendergrass,
189 Mont. 127, 134,
615 P.2d 201, 205 (1980) (affirming no prejudicial consequences when the jury saw the
defendant handcuffed outside the courtroom), State v. Schatz,
194 Mont. 59, 63,
634 P.2d
1193, 1196 (1981) (affirming no prejudicial consequences when some members of the jury
saw defendant leaving the court house in handcuffs), and Porter, ¶ 31 (affirming no
prejudicial consequences when defendant momentarily wore handcuffs in front of a group
of potential jurors) with Rhoden v. Rowland,
172 F.3d 633, 636 (9th Cir. 1999) (granting
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habeas relief when the defendant was shackled in view of the jury for the duration of the
trial). Consequently, the District Court’s order, which denied the motion based upon the
assumption that potential jurors had briefly observed Lowry in handcuffs, was correct, and
no prejudice was sustained by Lowry.
¶24 For the reasons discussed herein, we conclude on this record that Lowry’s IAC
claims are without merit.
¶25 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, the case presents questions controlled by settled law or by the clear application of
applicable standards of review.
¶26 Affirmed.
/S/ JIM RICE
We Concur:
/S/ CORY J. SWANSON
/S/ LAURIE McKINNON
/S/ KATHERINE M. BIDEGARAY
/S/ JAMES JEREMIAH SHEA
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