State v. K. Derby, 2022 MT 99N

Kari Lynn Derby was arrested after an altercation and allegedly drove while intoxicated; during the DUI arrest she kicked a peace officer in the shin.
A jury convicted Derby of aggravated DUI and assault on a peace officer; judgment entered November 8, 2019.
About a week before trial the State amended charging documents several times, ultimately reducing the aggravated-DUI penalty exposure (changed from second-offense to first-offense statutory basis) and the district court corrected statutory citations by interlineation the morning of trial.
The State had a Montana State Crime Lab toxicologist testify remotely by video; the defense counsel told the State before trial they would not object, and no objection or cross-examination occurred at trial.
Derby’s trial strategy conceded the DUI and focused on defending the assault charge; prosecutor’s closing argument included remarks about the jury’s view of evidence and colloquial descriptions of Derby’s intoxication and the officer’s reaction.
On appeal Derby argued (1) the last-minute amendment was improper, (2) remote testimony violated confrontation rights, and (3) prosecutorial misconduct in closing required a new trial. The Supreme Court of Montana affirmed.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Derby)	Held
Whether the district court abused its discretion by allowing late amendments to the information.	Amendments clarified the charged conduct and reduced penalty exposure; Derby was fairly apprised and not prejudiced.	Amendments were improper, enacted at trial and prejudiced defense preparation.	No abuse of discretion; conduct charged unchanged, Derby had fair notice and benefited from a lesser penalty.
Whether remote video testimony of a crime-lab toxicologist violated the Confrontation Clause.	Remote testimony was permitted after defense counsel indicated no objection; Derby failed to preserve the issue.	Video testimony denied Derby her Montana and federal face-to-face confrontation rights.	Not reviewed on appeal—issue waived for failure to timely object; plain-error review not invoked.
Whether prosecutor’s closing argument violated due process or presumption of innocence.	Closing remarks fairly framed the evidence and elements; colloquial language did not misstate the law or improperly bolster witnesses.	Prosecutor misstated burden (implying presumption removed) and offered improper opinions and bolstering.	No plain error: remarks did not remove presumption of innocence or improperly invade jury province; no prejudice shown.

City of Red Lodge v. Kennedy, 309 Mont. 330, 46 P.3d 602 (clarifies abuse-of-discretion standard for amendments to charging documents)
State v. Mercier, 403 Mont. 34, 479 P.3d 967 (standards for de novo review of constitutional questions and plain error for unpreserved prosecutorial-misconduct claims)
State v. Lawrence, 386 Mont. 86, 385 P.3d 968 (presumption of innocence may not be said to be removed; improper prosecutorial statements)
State v. Bailey, 404 Mont. 384, 489 P.3d 889 (Montana Confrontation Clause and limits on video testimony)
State v. Gardipee, 323 Mont. 59, 98 P.3d 305 (amendment to information that alters penalty but not charged conduct may not prejudice defendant)
State v. Tower, 267 Mont. 63, 881 P.2d 1317 (defendant must have fair warning of charged conduct)
State v. LaFreniere, 342 Mont. 309, 180 P.3d 1161 (failure to timely object waives appellate review)
State v. Hayden, 345 Mont. 252, 190 P.3d 1091 (plain-error review for prosecutorial misconduct; limits on improper opinion or bolstering)