State v. Ford

• Decision Date: 20 November 2001
• Docket Number: No. 00-337.,00-337.
• Citation: 39 P.3d 108,306 Mont. 517,2001 MT 230
• Parties: STATE of Montana, Plaintiff/Respondent, v. Eugene FORD, Defendant/Appellant.
• Court: Montana Supreme Court

39 P.3d 108

2001 MT 230

306 Mont. 517

STATE of Montana, Plaintiff/Respondent, v. Eugene FORD, Defendant/Appellant.

No. 00-337.

Supreme Court of Montana.

Heard July 24, 2001.

Submitted August 9, 2001.

Decided November 20, 2001.

Rehearing Denied January 31, 2002.

Kristina Guest, Appellate Defender Office, Helena, MT, for Appellant.

Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Attorney General, Helena, MT; Brant S. Light, Cascade County Attorney, Great Falls, MT, for Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 On November 12, 1999, a unanimous jury in the Eighth Judicial District, Cascade County, found Eugene Ford (Ford) guilty of deliberate homicide, a felony. He was sentenced to the Montana State Prison for life and was declared ineligible for parole. Ford appeals from this verdict and sentence.

¶ 2 The issue presented for review is whether the District Court properly denied Ford's motion for the impanelment of a new jury. Ford alleges that the State violated his equal protection rights by improperly exercising its peremptory challenges so as to exclude women from Ford's jury panel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 In March 1999, Ford was charged with the offense of deliberate homicide involving the death of his roommate, Michael Paul. Ford's trial commenced on November 8, 1999, with selection of the jury. A review of the trial Transcript indicates the venire, comprised of fifty prospective jurors, appeared as instructed and were sworn as to their qualifications to serve as trial jurors in the case at bar. From the list of names of the prospective jurors, it appears the venire was evenly split between males and females. The first twenty-four prospective jurors, sixteen females and eight males, were drawn and the State's voir dire examination commenced. One male was excused for cause and replaced by another male. The State then passed the prospective jurors for cause and Ford's attorney conducted his voir dire examination. He challenged two female prospective jurors for cause, and they were excused and replaced by two males. One of these males was then excused for cause and replaced with another male. At this point, the prospective jury panel consisted of fourteen females and ten males.

¶ 4 Each party was allotted six peremptory challenges. The State exercised its peremptory challenges, excusing six females from the prospective jury panel. Ford then exercised his peremptory challenges, excusing four females and two males. Three prospective alternate jurors were drawn, two males and one female. The State excused one male and Ford excused one male. The final jury, comprised of eight males, four females and one female alternate juror, was then sworn, and the remaining venirepersons were dismissed with the thanks of the Court.

¶ 5 After the jury was sworn and the venire dismissed, and outside the presence of the jury, Ford's attorney then moved for a new jury pool, claiming the State had exercised its peremptory challenges "in violation of [Ford's] right to a jury by his peers" by striking six women. The State, without verbal prompting from the District Court, offered explanations for striking five of the six excused prospective jurors. The District Court noted Ford's objection, but without explanation or reason, overruled his objection. The trial then proceeded.

¶ 6 Upon completion of the trial, a unanimous jury found Ford guilty of deliberate homicide. He was sentenced to the Montana State Prison for life and was declared ineligible for parole.

STANDARD OF REVIEW

¶ 7 The issue of gender discrimination in jury selection is a case of first impression for this Court, and while the parties do not agree as to the appropriate standard of review this Court should apply to the case at bar, it is well established that when considering a Batson challenge, i.e., a challenge that a litigant has exercised its use of peremptory strikes in a discriminating manner, an appellate court will defer to the trial court's findings of fact unless clearly erroneous, and will review the trial court's application of the law de novo. Tolbert v. Page (9th Cir.1999), 182 F.3d 677, 1999 U.S.App. LEXIS 14201. See also Brewer v. Marshall (1st Cir.1997), 119 F.3d 993, 1997 U.S.App. LEXIS 18147.

DISCUSSION

¶ 8 In making his objection at trial to the peremptory challenges exercised by the State, Ford's counsel claimed that the State had violated his right "to a jury by his peers." It was not until he filed his appeal that Ford first labeled his dispute over the State's exercise of peremptory challenges a "Batson" challenge. (Appellant's Brief, p. 17). Because this Court has not previously addressed Batson and its progeny, we deem it appropriate to briefly review the history and evolution of the Batson challenge to jury composition.

¶ 9 All citizens of this country and of this state are guaranteed equal protection under the laws by the United States Constitution and the Montana Constitution. Section 1 of the Fourteenth Amendment of the United States Constitution reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

¶ 10 Article II, Section 4 of the Montana Constitution reads:

The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

These constitutional provisions are intended to eliminate governmental discrimination based upon race, gender, religion, or political philosophy.

¶ 11 In a landmark case in 1880, the United States Supreme Court, explaining a function of the recently ratified Fourteenth Amendment (1868), informed the State of West Virginia that its juror qualification statute, allowing only "white male persons" to be eligible for jury service, was a violation of a black defendant's right to a jury selected "without discrimination against all persons of his race or color, because of their race or color." Strauder v. West Virginia (1880), 100 U.S. 303, 25 L.Ed. 664. In 1881, the facts of Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567, prompted the U.S. Supreme Court to extend Strauder by holding that Delaware's refusal to call black citizens to jury duty was also unconstitutional. Since that time, the Fourteenth Amendment has repeatedly been invoked to support the eradication of discrimination in the jury selection process.

¶ 12 While these early Supreme Court opinions instructed states to include black citizens in venires, they failed to guarantee that black citizens would actually serve on juries. Through the use of peremptory challenges, prosecutors were for many years generally successful in eliminating black juror participation. Stephen R. DiPrima, Note: Selecting a Jury in Federal Criminal Trials After Batson and McCollum, 95 Colum. L.Rev. 888, 900 (1995).

¶ 13 Courts throughout our history have lauded the importance of peremptory challenges to our judicial system. The peremptory challenge "is one of the most important of the rights secured to the accused." Pointer v. United States (1894), 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208, 214. It is "an essential part of the trial," and, more specifically, it is "essential to the fairness of trial by jury." Lewis v. United States (1892), 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011, 1014. See also, Holland v. Illinois (1990), 493 U.S. 474, 484, 110 S.Ct. 803, 809, 107 L.Ed.2d 905, 919.

¶ 14 Peremptory challenges are used during voir dire to strike members of the venire who the striking party prefers not to have on the jury, usually because of a perceived bias on the part of the potential juror. Unlike strikes for "cause," which are accompanied by an expressed reason for the strike, peremptory strikes may be exercised without having to explain the reason behind them. Peremptory strikes are often based primarily on instinct, and are cherished tools, guarded protectively by litigators. It in undeniable, though, that an unfortunate consequence of not having to explain the peremptory strike has been that persons have been excluded from jury participation because of their race or gender. However, as long as the use of the peremptory challenge was unfettered, any discriminatory motive would be unproven and, in any event, immaterial.

¶ 15 The unrestrained use of peremptory challenges came to an end with Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. In Batson, the U.S. Supreme Court developed the rule that the state, in a criminal case, cannot utilize its peremptory challenges to remove prospective jurors on the sole basis of race. Batson was a black man indicted in Kentucky on charges of second degree burglary and receipt of stolen goods. During jury selection, the prosecutor used his peremptory challenges to strike all four black persons on the venire, and an all-white jury convicted Batson on both counts. Defense counsel argued to the trial court at the time of jury selection that the prosecutor's use of his peremptory challenges violated Batson's rights under the Sixth and Fourteenth Amendments. In keeping with the attitude that peremptory challenges were sacred, the trial court informed defense counsel that peremptory challenges could be used to "strike anybody they want to." The Kentucky Supreme Court affirmed the trial court. Batson, 476 U.S....