State v. Braunreiter

• Decision Date: 05 June 2008
• Docket Number: No. DA 06-0686.,DA 06-0686.
• Citation: 2008 MT 197,185 P.3d 1024
• Parties: STATE of Montana, Plaintiff and Appellee, v. John BRAUNREITER, Defendant and Appellant.
• Court: Montana Supreme Court

185 P.3d 1024

2008 MT 197

STATE of Montana, Plaintiff and Appellee, v. John BRAUNREITER, Defendant and Appellant.

No. DA 06-0686.

Supreme Court of Montana.

Submitted on Briefs March 5, 2008.

Decided June 5, 2008.

For Appellant: James B. Wheelis, Chief Appellate Defender; David Avery, Assistant Appellate Defender, Helena, Montana

For Appellee: Hon. Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana, Robert M. McCarthy, Silver Bow County Attorney; Samm Cox, Deputy County Attorney, Butte, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 John Braunreiter (Braunreiter) appeals from the judgment entered in the District Court of the Second Judicial District, Silver Bow County, finding him guilty of burglary, a felony, in violation of § 45-6-204, MCA. Braunreiter raises numerous issues on appeal. We address only the District Court's denial of Braunreiter's challenge for cause of a potential juror. We reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 The State charged Braunreiter with burglary, assault with a weapon, and intimidation in March of 2005. The State alleged that Braunreiter burglarized a residence and stole three rifles, a shotgun, and a vintage knife. The State further alleged that Braunreiter assaulted a woman with a hammer during the State's investigation of the burglary and threatened to kill her if she contacted law enforcement regarding Braunreiter's involvement.

¶ 3 Braunreiter filed a motion to sever the burglary charge from the assault and intimidation charges on August 30, 2005. The District Court granted the motion, and trial on the burglary charge commenced on November 16, 2005.

¶ 4 The prosecutor posed questions to the jury panel regarding the presumption of a defendant's innocence during voir dire. The prosecutor received no inappropriate responses from the panel. Braunreiter's counsel referred the panel to the prosecutor's discussion of the presumption of innocence during her opening remarks for voir dire. Braunreiter's counsel asked if "Mr. Braunreiter [has] to prove anything in this case?" Prospective juror Kremer replied that a defendant should testify to prove that he or she did not commit the crime charged. Braunreiter's counsel asked juror Kremer additional questions regarding the presumption of innocence and a juror's obligation to follow instructions. Kremer maintained his belief that a defendant should be required to testify notwithstanding court instructions to the contrary. Braunreiter's counsel requested that the court dismiss Kremer for cause.

¶ 5 The District Court provided the State with an opportunity to examine Kremer before deciding Braunreiter's challenge for cause of prospective juror Kremer. The prosecutor questioned Kremer. Kremer's responses to the prosecutor's questions coincided with Kremer's earlier statements to Braunreiter's counsel. The District Court then discussed Kremer's obligations as a juror to follow the court's instructions. Kremer agreed to follow the instructions. The court denied the motion to dismiss Kremer for cause.

¶ 6 Braunreiter used a peremptory challenge to remove Kremer from the jury panel. Braunreiter exhausted his peremptory challenges. The jury convicted Braunreiter of burglary following a two-day trial. Braunreiter appeals the District Court's denial of his challenge for cause of Kremer.

STANDARD OF REVIEW

¶ 7 We review a district court's decision to deny a challenge for cause to a juror for an abuse of discretion. State v. Falls Down, 2003 MT 300, ¶ 17, 318 Mont. 219, ¶ 17, 79 P.3d 797, ¶ 17. We will reverse the judgment and order a new trial if a court abuses its discretion in denying a defendant's challenge for cause, the defendant removes the challenged prospective juror with a peremptory challenge, and the defendant exhausts his peremptory challenges. State v. Robinson, 2008 MT 34, ¶ 7, 341 Mont. 300, ¶ 7, 177 P.3d 488, ¶ 7.

DISCUSSION

¶ 8 Braunreiter argues that the District Court committed error when it declined to excuse for cause prospective juror Kremer. Braunreiter asserts that Kremer's "spontaneous and honest" responses revealed that Kremer could not act without bias with regard to Braunreiter's right to a presumption of innocence.

¶ 9 A defendant may challenge a juror for cause if the juror has a state of mind that prevents the juror from acting impartially and without prejudice to the substantial rights of the defendant. Section 46-16-115(2)(j), MCA. We review a prospective juror's voir dire responses as a whole when reviewing a challenge for cause. State v. Hausauer, 2006 MT 336, ¶ 23, 335 Mont. 137, ¶ 23, 149 P.3d 895, ¶ 23. We emphasize a prospective juror's spontaneous responses as we determine whether a serious question exists concerning the juror's ability to remain impartial. Hausauer, ¶ 23.

¶ 10 District courts need not remove a prospective juror for cause where the juror expresses concerns about remaining impartial but believes that he or she will fairly weigh the evidence. Robinson, ¶ 10. Courts should resolve serious questions about a prospective juror's ability to be fair and to remain impartial in favor of excusing the juror. State v. DeVore, 1998 MT 340, ¶ 25, 292 Mont. 325, ¶ 25, 972 P.2d 816, ¶ 25 (citation omitted) (overruled in part on other grounds by State v. Good, 2002 MT 59, 309 Mont. 113, 43 P.3d 948).

¶ 11 Section 46-16-114(2), MCA, allows district courts to examine potential jurors. A district court may clarify a juror's statements and ask questions in order to better ascertain whether a juror has biases. Robinson, ¶ 11. District courts should not attempt to rehabilitate prospective jurors, however, by placing jurors in a position from which they will not disagree with the court. Good, ¶ 54. Coaxed recantations prompted by the trial court, or either counsel, fail to demonstrate that a prospective juror enters the trial without bias or prejudice. Robinson, ¶ 11.

¶ 12 The prosecutor discussed the presumption of innocence with the jury panel and had a brief exchange with prospective juror Kremer.

PROSECUTOR: So if I were to ask you folks right now, without hearing any evidence at all, is the defendant guilty or innocent, what do you folks have to say?

KREMER: Innocent.

PROSECUTOR: ... [a]nd if we show to you beyond a reasonable doubt and we show you the facts and the circumstances such that Mr. Kremer has no doubt in his mind, what would you return a verdict of then, Mr. Kremer?

KREMER: If you could prove that he was guilty, I would say guilty, yeah.

¶ 13 Braunreiter's counsel, after referring the jury panel to the prosecutor's discussion of the presumption of innocence, asked the jury panel if "Mr. Braunreiter [has] to prove anything in this case?"

KREMER: Well, [Braunreiter] has been charged. He has to prove he didn't do it.

* * * *

DEFENSE COUNSEL: Do you feel, Mr. Kremer, then, that every defendant who is charged needs to get up there and explain why he has been charged?

KREMER: That's right.

DEFENSE COUNSEL: You do?

KREMER: (Nods head.)

DEFENSE COUNSEL: So if the defendant chose not to take the stand, standing under his constitutional right to not incriminate himself should any testimony he would give be incriminating, you would think that he needs to get up here and explain himself; is that right?

KREMER: Right.

DEFENSE COUNSEL: So even if the Court were to instruct you that you should not hold a defendant's choice not to testify against him, you still believe that it would be appropriate for him to get up there and testify?

KREMER: He doesn't have to if he doesn't want to. That's his choice. But I feel that he should get up and do it.

DEFENSE COUNSEL: If he chose not to testify, you would take that into account in considering the—

KREMER: I would have to hear all the evidence first.

¶ 14 Braunreiter's counsel challenged juror Kremer for cause. The District Court provided the State with an opportunity to voir dire Kremer before deciding Braunreiter's challenge.

PROSECUTOR: Mr. Kremer, you understand that the judge, at the end of the trial, is going to tell you how to do your deliberations; is that correct?

KREMER: Right.

PROSECUTOR: If the judge tells you that, if the defendant does not testify and exercises his right not to testify, which everybody here is able to, that you are not to consider that, could you set that aside?

KREMER: Probably.

PROSECUTOR: If the judge tells you that you are not to consider it, you can set that aside and not let that enter into your deliberations?

KREMER: No.

The State then asked the court to deny Braunreiter's challenge for cause of juror Kremer.

¶ 15 The District Court directly addressed Kremer.

THE COURT: Mr. Kremer, at the end of this, if you are selected for this jury, I'm going to tell you the law. And I'll explain the law, and it's not what you see on [television]; it's not what you hear elsewhere. It's what I tell you. Will you be able to follow that law?

KREMER: Sure.

THE COURT: Regardless of what you heard elsewhere?

KREMER: Right. I could follow the law.

The District Court denied Braunreiter's challenge for cause of prospective juror Kremer.

¶ 16 Juror Kremer's initial responses to the prosecutor's questions raised no concerns with regard to his ability to perform as a juror without prejudice to Braunreiter's rights. We must examine, however, Kremer's responses as a whole. Hausauer, ¶ 23. Furthermore, we emphasize a prospective juror's spontaneous response when reviewing a challenge for cause. Hausauer, ¶ 23.

¶ 17 Kremer's spontaneous response to a question that Braunreiter's counsel had posed to the entire jury panel raised serious questions regarding Kremer's ability to act without prejudice to the presumption of innocence and Braunreiter's right to refrain from testifying. Braunreiter's counsel and the prosecutor provided Kremer with opportunities to clarify his position. Kremer's responses to these follow-up...