State v. Bearchild , 324 Mont. 435 ( 2004 )

No. 03-307
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 355
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DEWAYNE BEARCHILD,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. CDC-02-068,
The Honorable Kenneth R. Neill, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender Office, Helena, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney; John Parker, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: December 11, 2003
Decided: December 16, 2004
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Dewayne Bearchild (Bearchild) was charged with the crime of incest on February 14,
2002. On the day of trial, December 2, 2002, but before voir dire proceedings began, the
prosecutor moved to challenge two jurors for cause. Bearchild objected to both challenges.
The District Court denied the first challenge, but granted the second challenge. On
December 3, 2002, the jury found Bearchild guilty of incest. Bearchild appeals from the
District Court’s decision to permit the State to challenge the second juror for cause prior to
voir dire. We affirm.
¶2 The sole issue on appeal is whether the District Court substantially complied with the
statutory procedure to ensure the fair selection of jurors when it entertained the State’s
challenge for cause of a juror without an inquiry examination.
BACKGROUND
¶3 On February 14, 2002, Bearchild was charged with sexual intercourse without consent
and incest. Both charges arose from a single incident where Bearchild’s step-daughter
alleged he touched her inappropriately. Bearchild pleaded not guilty. A trial on the charges
began December 2, 2002. Before voir dire proceedings began, Deputy County Attorney John
Parker (Parker) requested the District Court to excuse panelist No. 43, Michelle Ellington
(Ellington), because she previously worked in the county attorney’s office as a receptionist
and had access to a wide range of information relating to criminal and youth in need of care
cases, both of which Bearchild had been involved in. Further, Parker had recently fired
Ellington for unsatisfactory performance. Defense counsel resisted the challenge, arguing
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an in-court examination of Ellington was required to determine if she would be unfair to
either party.
¶4 District Court Judge Neill granted Parker’s request because he was concerned about
even having Ellington on the jury panel because of the possibility she may have feelings or
predilections for one side or the other. He also felt there was a danger of her communicating
with other prospective jurors. He noted that since she was No. 43 on the venire list, it was
unlikely she would ever become an active member of the jury panel. In fact, after Ellington
was removed from the prospective panel, the last juror questioned during voir dire was
panelist No. 36.
¶5 After the State’s case-in-chief, Bearchild moved for a directed verdict on the sexual
intercourse without consent charge, arguing there was no evidence of penetration. The
District Court granted the motion and dismissed the charge. However, the jury found
Bearchild guilty of incest.
¶6 On January 28, 2003, Bearchild was sentenced to 20 years in the Montana State
Prison, five years suspended, with no possibility of parole for ten years. Bearchild now
appeals from the District Court’s decision to permit Parker to challenge juror Ellington for
cause prior to voir dire.
STANDARD OF REVIEW
¶7 The District Court’s decision to permit the State to challenge a juror for cause prior
to a voir dire examination involves a conclusion of law. We review a district court’s
conclusion of law to determine if it is correct. State v. LaMere, 2000 MT 45, ¶ 14, 298
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Mont. 358, ¶ 14, 2 P.3d 204, ¶ 14.
DISCUSSION
¶8 Did the District Court substantially comply with the statutory procedure to ensure the
fair selection of jurors when it entertained the State’s challenge for cause of a juror without
an inquiry examination?
¶9 Bearchild argues the District Court’s removal of Ellington without an in-court
examination constitutes structural error requiring automatic reversal. Relying heavily on our
holding and discussion in LaMere, Bearchild contends the District Court failed to comply
with the statutory jury selection procedures. He claims this error has implications for all
defendants, specifically that it affects a defendant’s right to an impartial jury and invades the
fairness of the entire jury process. Bearchild points to the case of State v. Blem (S.D. 2000),
610 N.W.2d 803, where the South Dakota Supreme Court reversed a trial court’s decision
granting a prosecutor’s request to remove two jurors prior to voir dire.
¶10 The State argues the test for structural error was not met in this case and that
Bearchild failed to establish presumptive prejudice as required by State v. Good, 2002 MT
59, ¶ 59, 309 Mont. 113, ¶ 59, 43 P.3d 948, ¶ 59. Although the State does not dispute there
may have been a technical violation of the jury selection statutes, it argues the District
Court’s removal of Ellington was harmless because the composition of the jury was not
affected and Ellington would never have served on the jury in any event.
A. Jury Selection Statutes.
¶11 Section 46-16-115, MCA, governs challenges for cause. It permits the challenge of
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a juror having a state of mind in reference to the case or to either of the parties that would
prevent the juror from acting with entire impartiality and without prejudice to the substantial
rights of either party. Section 46-16-115(2)(j), MCA. Further, the statute provides that a
judge may grant a challenge for cause for any reason the court determines. Section 46-16-
115(2), MCA. The statute provides that “each challenge must be tried by the court.” Section
46-16-115(1), MCA.
¶12 Under the federal jury selection statutes, it is permissible for a court to exclude a juror
for hardship or bias prior to voir dire. United States v. Contreras (10th Cir. 1997), 108 F.3d
1255, 1269. In Contreras, the court stated:
[W]e are aware of no authority holding a defendant’s right to an impartial jury
is violated per se by the pre-voir dire excusal of jurors. In fact, the Jury
Selection and Service Act indicates the district court may properly exclude
summoned jurors prior to voir dire based on hardship or bias. See 28 U.S.C.
§ 1866(c).
Contreras, 108 F.3d at 1269.
¶13 Other Circuit Courts of Appeals have deemed certain pre-voir dire dismissals proper.
See e.g. United States v. North (D.C. Cir. 1990), 910 F.2d 843, 909-10 (pre-voir dire excusal
of jurors for cause not erroneous), superseded in part on other grounds, 920 F.2d 940 (D.C.
Cir. 1990), cert. denied, 500 U.S. 941 (1991); United States v. Paradies (11th Cir. 1996), 98
F.3d 1266, 1279-80 (district court did not commit “substantial violation” of the federal Jury
Selection Act by excusing jurors sua sponte prior to voir dire based solely on their answers
to juror questionnaires).
¶14 We conclude the District Court erred when it excused the jurors for cause before voir
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dire. Our statutes are fairly explicit as to the need for an in-court examination of the juror
when considering a challenge for cause. Section 46-16-115(1), MCA, specifically provides
that a challenge for cause must be tried by the court. There was no “trial” when the court
considered the challenges prior to voir dire.
B. Substantial Compliance.
¶15 While it is true statutory jury selection procedures are designed to protect against
violations of the underlying constitutional right to a fair and impartial jury, LaMere, ¶ 65, not
every violation of the statutory process governing the formation of a trial jury results in
reversal. LaMere, ¶ 55. Technical departures from the jury selection statutes and violations
which do not threaten the goals of random selection and objective disqualification do not
constitute a substantial failure to comply. LaMere, ¶ 58. Thus, we require a “substantial
compliance” with the statutory procedures to ensure the right to an impartial jury will remain
inviolate for all. LaMere, ¶ 68.
¶16 In LaMere, a Native American defendant appealed a district court’s denial of a pre-trial
motion to strike the entire jury panel, on the basis that telephone summoning of jurors by the
court clerk constituted a substantial failure to comply with statutory jury panel selection
procedures. We held the failure to summon jurors by mailing or personally serving
prospective jurors with written jury summons constituted failure to substantially comply with
the statute, and was structural error affecting the essential fairness of the trial, resulting in per
se reversible error. LaMere, ¶ 75.
¶17 We stated that a material failure to substantially comply with Montana statutes
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governing the procurement of a trial jury cannot be treated as harmless error because: (1) such
an error precedes the presentation of any evidence to the jury, and cannot be analyzed as mere
trial error without resorting to speculation; (2) such an error, because it precedes the trial
process, cannot be quantitatively assessed for its prejudicial impact relative to the evidence
introduced at trial; (3) such an error, being other than an error in the trial process, affects the
very framework within which the trial proceeds; and (4) the impartiality of the jury goes to
the very integrity of our justice system, and the right to an impartial jury is so essential to our
conception of a fair trial that its violation cannot be considered harmless error. LaMere, ¶ 50.
¶18 Further, in Good, we reiterated that structural error occurs when there is a material
failure to substantially comply with statutes governing the procurement of a trial jury. Good,
¶ 60. We even went as far as to say that “[e]rrors involving jury selection indelibly affect the
fairness of the trial since the errors precede the trial.” Good, ¶ 60 (citation omitted).
However, in Good, we were reviewing the district court’s discretion in denying a defendant’s
challenges for cause. It is important to point out this Court is not reviewing the merits of the
State’s challenge for cause–only the District Court’s decision to entertain the challenge prior
to voir dire proceedings.
¶19 A material failure to substantially comply with Montana’s jury selection statutes does
result in structural error requiring reversal. Good, ¶ 60; LaMere, ¶ 75. Unlike in LaMere,
however, the District Court’s error was not a material failure to substantially comply with
Montana’s statutes governing the procurement of a trial jury.
¶20 The entire jury pool was affected by the error in LaMere. Every member of the jury
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pool was contacted by telephone, thus excluding an entire class of people who did not own
a telephone. We stated that the impact of this type of violation on the trial process, “cannot
be discerned from the record” and is so “purely speculative” that prejudice to the defendant
is presumed. LaMere, ¶ 41 (citation omitted).
¶21 Here, however, Bearchild is not challenging the cross-sectional composition of the
jury. In truth, he is not even challenging the impartiality of the jury. Bearchild is, in essence,
challenging a specific juror. Although a defendant is entitled to an impartial jury, he has no
right to a particular juror. LaMere, ¶ 37 (citing State v. Gollehon (1993), 262 Mont. 1, 11,
864 P.2d 249, 255; State v. Taylor (1975), 168 Mont. 142, 146, 542 P.2d 100, 102; Tribby
v. Northwestern Bank of Great Falls (1985), 217 Mont. 196, 208, 704 P.2d 409, 416).
¶22 Even though it occurred prior to trial, the impact of Ellington’s dismissal can be
discerned from the record. The outcome of Bearchild’s trial would be the same regardless
of Ellington’s dismissal, because as No. 43 on the venire, she never would have served on the
jury in any event. In contrast to LaMere, the error in this case can be isolated and assessed
for its prejudicial impact; Ellington’s dismissal did not affect Bearchild’s right to an impartial
jury.
¶23 Thus, while the District Court committed error in excusing the jurors for cause prior
to voir dire, its action was not a material failure to substantially comply with Montana’s
statutes governing the procurement of a trial jury.
C. Harmless Error.
¶24 If the district court substantially complies with the Montana statutes regarding jury
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procurement, then the error is not structural. LaMere, ¶¶ 47-50; Good, ¶ 60. If the error is
not structural, harmful error review applies. LaMere, ¶ 25; Good, ¶¶ 60-61. Montana’s
harmful error statute provides that “[a]ny error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.” Section 46-20-701(2), MCA. While harmless
error generally occurs during the actual trial, LaMere, ¶ 41, and is often referred to as “trial
error,” Good, ¶ 61, it also applies to “technical or immaterial violations” of the statutory jury
selection scheme. LaMere, ¶¶ 60-61. Prejudice will not be presumed where the record shows
the district court’s error affected neither the constitutional or jurisdictional rights of the
defendant, and the defendant on appeal has failed to demonstrate prejudice to his substantial
rights resulting from the error. State v. Austad (1982), 197 Mont. 70, 87, 641 P.2d 1373,
1382.
¶25 Bearchild cannot demonstrate prejudice to his right to an impartial jury based on the
District Court’s error because even if Ellington had not been dismissed prior to the voir dire
proceedings, she never would have sat on Bearchild’s jury because the last juror empaneled
was juror No. 36 and Ellington was juror No. 43.
D. South Dakota v. Blem.
¶26 Bearchild’s reliance on Blem is misguided. In Blem, the prosecution sent a letter to
the trial court and to Blem’s attorney requesting it remove two potential jurors. Blem’s
attorney objected to their removal. At a motions hearing, both sides argued the removal of
the jurors to the trial court. The judge dismissed the two jurors. On appeal, Blem argued the
statutory jury selection process was violated and that he was denied an opportunity to
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determine if the jurors were biased. The South Dakota Supreme Court adopted our rationale
in LaMere and held the removal of the two jurors was a substantial failure to comply with the
jury selection statutes. Blem, ¶ 30.
¶27 While we agree with the Blem court that removal of potential jurors for cause should
occur after voir dire, we disagree that failure to do this constitutes structural error. The
LaMere rationale applies to structural errors, those that cannot be assessed for their
prejudicial impact without speculation. Ellington’s dismissal did not affect the entire jury
pool. The impact of her dismissal can be assessed without speculation, as she never would
have served on Bearchild’s jury in any event. The Blem court never reached this distinction.
¶28 In sum, we hold the District Court erred when it permitted juror Ellington to be
removed from the venire without a proper in-court examination to determine actual bias.
However, because the District Court substantially complied with the jury selection statutes,
we find this error to be subject to harmless error review. Bearchild did not prove he was
prejudiced by this error, and therefore the error was harmless.
¶29 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ JIM RICE
Justice W. William Leaphart dissenting.
¶30 I dissent.
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¶31 The Court concedes that the District Court committed error when it excused the jurors
for cause prior to voir dire and without the in-court examination or “trial” as required by § 46-
16-115(1), MCA. The Court concludes, however, that the error did not amount to a “material
failure to substantially comply” with statutory procedures, and, thus, the Court engages in a
harmless error analysis.
¶32 The Court purports to distinguish the decision in State v. LaMere, 2000 MT 45, 298
Mont. 358, 2 P.3d 204, where we held that the failure to summon jurors by mailing or
personally serving prospective jurors with written jury summons constituted a material failure
to substantially comply with the jury selection statutes. However, in focusing on the fact that
the juror in question was panelist #43 and was thus “immaterial” or of no consequence to the
jury as empaneled, the Court ignores the analytical principles established in LaMere.
¶33 In LaMere we held that the “substantial compliance” standard is designed to “protect
the random nature and objectivity of the jury selection process.” LaMere, ¶ 57. “In turn,
technical violations–even numerous such violations–that do not frustrate these goals or result
in discrimination and arbitrariness do not constitute a substantial failure to comply.” LaMere,
¶ 58. To be substantial deviation, the departure must be “a material one.” LaMere, ¶ 59.
¶34 In light of the above principles, we held:
Therefore, if the statutory violation is “substantial” or “material”–viewed in
terms of the underlying principles of ensuring that jury venires are selected
randomly and on the basis of objective criteria–then it cannot be considered
non-prejudicial to the defendant.
LaMere, ¶ 60.
¶35 Importantly, for purposes of this case, we went on in LaMere to say:
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A departure from the statutory scheme that directly or materially affects the
random nature or objectivity of the jury selection process establishes a
substantial violation independently of the departure’s consequences in an
individual case. Conversely, a mere “technical” or “immaterial” violation–one
that does not undermine the objective procedures designed to produce a jury
venire consisting of a fair cross-section of the community–constitutes non-
prejudicial error under the substantial compliance standard.
LaMere, ¶ 60 (emphasis added).
¶36 Here, the departure from the statutory scheme consists in excusing a panel member
without the requisite “trial” by the court. Thus, the question is, does the excusing of a panel
member without trial by the court materially affect the objectivity of the jury selection
process? Under LaMere, this question must be answered independently of the departure’s
consequences (or lack thereof) in this particular case. Clearly, the excusing of prospective
jurors at the behest of a litigant, without a statutorily required “trial” by the court “materially
affects” the objectivity of determining juror disqualification. The error was thus structural
in nature, and the Court should not have adopted a harmless error rationale.
/S/ W. WILLIAM LEAPHART
Chief Justice Karla M. Gray and Justice James C. Nelson join in the foregoing dissent.
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
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