State v. Deschon, 02-322
| Decision Date | 18 February 2004 |
| Docket Number | No. 02-322,02-322 |
| Citation | 85 P.3d 756,2004 MT 32,320 Mont. 1 |
| Parties | STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH LESTER DESCHON, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Chad Wright, Appellate Defender, Helena, Montana.
For Respondent: Honorable Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Leo Gallagher, County Attorney; Mike Menahan, Deputy County Attorney, Helena, Montana.
¶1 Joseph Lester Deschon (Deschon) appeals from his conviction and sentence for the offense of deliberate homicide, with enhancement for the use of a dangerous weapon, and from an evidentiary hearing on remand. We affirm.
¶2 Deschon raises the following issues on appeal:
¶3 1. Was the evidentiary hearing held for the purpose of reconstructing the unrecorded voir dire portions of Deschon's trial sufficient to preserve his right to due process?
¶4 2. Did Deschon's trial counsel provide ineffective assistance of counsel during voir dire?
¶5 On November 19, 1999, the State of Montana charged Deschon with deliberate homicide, a felony, in violation of § 45-5-102, MCA, for the stabbing death of his nephew; and assault with bodily fluid, a misdemeanor, in violation of § 45-5-214, MCA, for spitting on the arresting officers. Deschon pled guilty to the assault charge, and on January 20, 2000, following a three-day trial, the jury returned a verdict finding Deschon guilty of deliberate homicide. On March 16, 2000, the District Court sentenced Deschon to the Montana State Prison for fifty years with ten years suspended for the offense of deliberate homicide, an additional five years for the use of a weapon, and one year for the offense of assault with bodily fluids.
¶6 On April 6, 2000, Deschon appealed his conviction of deliberate homicide arguing, inter alia, that his right to due process was violated because no transcript of the voir dire portion of the trial existed, thus depriving him of the right to a meaningful appeal. The voir dire was not recorded because of the then common, and now discarded, practice of waiving the recording of voir dire when the parties agreed it was likely there would be no issues during the jury selection process. On January 30, 2002, this Court remanded for an evidentiary hearing for the purpose of reconstructing the unrecorded voir dire portions of Deschon's trial. See State v. Deschon,1 2002 MT 16, ¶ 32, 308 Mont. 175, ¶ 32, 40 P.3d 391, ¶ 32.
¶7 On April 9, 2002, the District Court conducted the evidentiary hearing and received testimony from two trial jurors, the four attorneys involved in the voir dire process, and Deschon. Additionally, a number of exhibits were entered, including trial notes taken by the attorneys and Deschon during voir dire. The District Court ordered that a transcript of the hearing be prepared and that the file be returned to the Montana Supreme Court. Deschon appeals from the judgment, conviction and sentence, and from the evidentiary hearing.
¶8 Was the evidentiary hearing held for the purpose of reconstructing the unrecorded voir dire portions of Deschon's trial sufficient to preserve his right to due process?
¶9 In his first appellate brief, Deschon challenged his conviction for deliberate homicide in part on the denial of a meaningful appellate review caused by the lack of any record of the voir dire proceedings. Deschon I, ¶ 23. According to Deschon, this violated his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article II, Section 17 of the Montana Constitution. Deschon contended that adverse media publicity existed prior to his trial, and, since the record was silent as to whether any jurors were prejudiced by the publicity, his fundamental right to an impartial jury was therefore implicated.
¶10 In Deschon I, this Court applied the two-part test for determining whether Deschon's right to due process had been violated established by the United States Supreme Court in Britt v. North Carolina (1971), 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400, and subsequently followed by the Ninth Circuit in Madera v. Risley (9th Cir. 1989), 885 F.2d 646, 648; Deschon I, ¶ 26. The two criteria for this determination are: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.
¶11 This Court concluded that Deschon had identified a tenable theory as to possible error, specifically, that the jurors were not impartial as a result of adverse pretrial publicity, thus satisfying the first part of the Britt test. Deschon I, ¶ 28. This Court further concluded that an evidentiary hearing would serve as an alternative to a verbatim transcript, thus satisfying the second part of the Britt test:
We conclude that an evidentiary hearing similar to the one relied on in Madera is necessary in this case. Witnesses, such as the prosecutor, defense attorney, court reporter and clerk of court, may testify as to their memory of the voir dire proceedings.
¶12 After the evidentiary hearing was conducted on remand to reconstruct the voir dire record, Deschon continued his appeal from the judgment, and now asserts in his second appellate brief that the hearing was insufficient to provide the needed information to determine whether any of the jurors were biased. In addition to his prior contention that a verbatim transcript was needed to determine whether jurors were biased because of pretrial publicity, Deschon now raises several additional theories of potential juror bias, namely, bias as a result of Deschon's failure to testify, prior knowledge of Deschon, and Deschon's race. Deschon argues that without a verbatim transcript, none of these potential biases can be verified, and, therefore, this Court should reverse and remand for a new trial.
¶13 Though we have admonished trial courts to order the recording of voir dire examinations, it is well established that the lack of a verbatim transcript is not a constitutional defect when a suitable alternative is provided. See Mayer v. City of Chicago (1971), 404 U.S. 189, 194, 92 S.Ct. 410, 414-15, 30 L.Ed.2d 372
(); see also Harris v. Estelle (5th Cir. 1978), 583 F.2d 775, 777. "A reconstructed record, as opposed to a verbatim transcript, can afford effective appellate review, particularly where appellate rules have established a procedure for reconstruction of the trial record." U.S. v. Cashwell (11th Cir. 1992), 950 F.2d 699, 703; see also Morgan v. Massey (5th Cir. 1976), 526 F.2d 347, 348. Rule 10(e), F.R.App.P., has provided such a procedure in a number of instances where reconstruction of the trial record was necessary. See e.g. Cashwell, 950 F.2d at 704; U. S. v. Preciado-Cordobas (11th Cir. 1993), 981 F.2d 1206, 1210; U.S. v. Novaton (11th Cir. 2001), 271 F.3d 968, 993.
¶14 In Cashwell, the defendant argued that his conviction must be vacated due to the unavailability of a transcript of the voir dire and the inability of the court to adequately reconstruct those proceedings. He asserted that, as a result of this void, he was denied a meaningful appeal and thus deprived of his right to due process. However, the appellate court held that "the district court's failure to require the recording of the voir dire proceedings will mandate a reversal only if the absence of this proceeding is a substantial and significant omission from the record which cannot be adequately reconstructed." Cashwell, 950 F.2d at 704. After a reconstruction hearing was held pursuant to Rule 10(e), F.R.App.P., the appellate court determined that, taken together, "the testimony, recollections, and relevant jury selection records . . . present[ed] a fair and accurate picture of what transpired during that phase of the trial." Cashwell, 950 F.2d at 704. The court concluded that the reconstructed record was adequate for the defendant to challenge the venire on appeal. Cashwell, 950 F.2d at 704.
¶15 Similarly, in U.S. v. Preciado-Cordobas I (11th Cir. 1991), 923 F.2d 159, the defendants moved for a new trial on grounds they could not effectively appeal their convictions due to the unavailability of a transcript of counsels' closing arguments. The appellate court remanded the case pursuant to Rule 10(e), F.R.App.P., directing the district court to attempt to reconstruct the closing arguments. The appellate court advised the district court judge that in attempting to reconstruct the record, he may use "his notes, the [court] reporter's notes, and, of course, the testimony of witnesses, including the appellant[s'] trial attorney[s]." Preciado-Cordobas I, 923 F.2d at 160-61. Subsequently, upon review of the trial court's reconstruction of the closing arguments, the appellate court concluded that the reconstruction was sufficient, noting that "[w]hile there may have been flaws in the trial, it strains the imagination to conceive reversible error from all that we know of the trial from the actual transcript of the evidence and the reconstructed arguments before the jury." Preciado-Cordobas, 981 F.2d at 1214.
¶16 Rule 9(f), M.R.App.P., modeled after Rule 10(e), F.R.App.P., provides the same procedure under Montana law for reconstruction of the trial record:
(f) Correction or modification of the record. If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party...
To continue reading
Request your trial
-
State v. Dewitz
...her job and her personal relationship does not, without more, necessitate a finding that she would not be an impartial juror. State v. Deschon, 2004 MT 32, ¶ 41, 320 Mont. 1, 85 P.3d 756 (citing State v. Thomson, 169 Mont. 158, 163, 545 P.2d 1070, 1072-73 ¶ 34 Dewitz also contends that beca......
-
Rose v. State, DA 12–0167.
...take, action in providing a defense for the accused.’ ” Longjaw v. State, 2012 MT 243, ¶ 19, 366 Mont. 472, 288 P.3d 210 (quoting State v. Deschon, 2004 MT 32, ¶ 32, 320 Mont. 1, 85 P.3d 756). In Longjaw, the defendant claimed that his counsel's failure to obtain an independent medical expe......
-
State v. Ladson
...Lewis v. State, 354 Ark. 359, 123 S.W.3d 891, 893 (2003); Wilson v. State, 334 Md. 469, 639 A.2d 696, 699 (1994); State v. Deschon, 320 Mont. 1, 85 P.3d 756, 760 (2004); Lopez v. State, 105 Nev. 68, 769 P.2d 1276, 1280 (1989); State v. Izaguirre, 272 N.J.Super. 51, 639 A.2d 343, 346 (App.Di......
-
State v. Kaarma
...that he or she would not be an impartial juror." State v. Lamere , 2005 MT 118, ¶ 17, 327 Mont. 115, 112 P.3d 1005 (citing State v. Deschon , 2004 MT 32, ¶ 41, 320 Mont. 1, 85 P.3d 756.) Here, Hughes was very clear, through her questionnaire and voir dire, that she would render her decision......