State v. Bearchild

• Decision Date: 16 December 2004
• Docket Number: No. 03-307,03-307
• Citation: 103 P.3d 1006,2004 MT 355
• Parties: STATE OF MONTANA, Plaintiff and Respondent, v. DEWAYNE BEARCHILD, Defendant and Appellant.
• Court: Montana Supreme Court

2004 MT 355

103 P.3d 1006

STATE OF MONTANA, Plaintiff and Respondent, v. DEWAYNE BEARCHILD, Defendant and Appellant.

No. 03-307

Supreme Court of Montana.

Submitted on Briefs: December 11, 2003

Decided: December 16, 2004

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.

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 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 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 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:

We 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 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 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 "errors 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...