State v. Freshment

• Decision Date: 28 March 2002
• Docket Number: No. 00-242.,00-242.
• Citation: 309 Mont. 154,2002 MT 61,43 P.3d 968
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Joseph B. FRESHMENT, Defendant and Appellant.

43 P.3d 968

2002 MT 61

309 Mont. 154

STATE of Montana, Plaintiff and Respondent, v. Joseph B. FRESHMENT, Defendant and Appellant.

No. 00-242.

Supreme Court of Montana.

Submitted on Briefs December 13, 2001.

Decided March 28, 2002.

Gary E. Wilcox, Billings, Montana, for Appellant.

Mike McGrath, Montana Attorney General, Stephen C. Bullock, Assistant Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Beverly Tronrud, Deputy Yellowstone County Attorney, Billings, Montana, for Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Joseph Freshment (Freshment) was convicted by a jury of two counts of sexual intercourse without consent, §§ 45-5-503(1) and -503(3)(a), MCA, in the Thirteenth Judicial District Court, Yellowstone County. Prior to trial, Freshment moved to sever the two counts into separate trials, because the counts involved separate victims on separate occasions. The District Court denied this motion. During jury voir dire, Freshment made motions to dismiss two of the jurors for cause which were denied by the District Court. Freshment appeals these denials and also argues he was given ineffective assistance of counsel in that his attorney failed to object to a third juror for cause. Because we reverse on the failure to dismiss the two jurors for cause, we do not address the ineffective assistance of counsel argument. We affirm on the issue of severance. Therefore, this case is remanded to the District Court for retrial.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court abuse its discretion when it denied Freshment's motions to dismiss two jurors for cause?

¶ 4 2. Did the District Court abuse its discretion by denying Freshment's motion to sever the charges and hold separate trials?

¶ 5 We decline to address a third issue raised by Freshment, ineffective assistance of counsel for failure to assert a third juror should be dismissed for cause, because of our conclusion on the first issue.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Because our holding in this case requires remand to the District Court for retrial, we discuss the facts of the charges only to the extent necessary to dispose of the issues on appeal.

¶ 7 On December 28, 1998, Freshment was charged with two counts of sexual intercourse without consent. Prior to trial, Freshment moved to sever the two counts into separate trials because each involved separate victims on separate occasions. The District Court denied this motion concluding Freshment did not demonstrate sufficient prejudice to overcome the proper joinder of the charges in the information under § 46-11-404(1), MCA. Further details will be discussed under this issue below.

¶ 8 During voir dire, Freshment moved to dismiss two jurors for cause because of the opinions they expressed regarding his asserted defense to one of the charges. For one of the counts of sexual intercourse without consent, Freshment asserted the defense of consent by the alleged victim. Because this victim was under 16 years of age, Freshment's defense of consent is only valid if he had a reasonable belief that the victim was old enough to give a valid consent, i.e. 16-years-of-age or older. See § 45-5-511, MCA. Freshment's counsel Kevin Peterson (Peterson) brought up the example of the famous country singer LeAnn Rimes¹ and asked the following question of the prospective jurors:

PETERSON: Is there anybody here who even though there's a reasonable belief in their mind that Mr. Freshment could have believed that one of the, or both of the, of the 15-year-olds was in fact 16 at the time of the act that would not be able to acquit him?

...

JUROR PAULA K. PORTER (PORTER): In that instance, I mean, isn't that why the statutory rape was made, the law was made? I mean, a lot of girls can lie, you know, and be younger than they look. He's the adult, would you really take the chance if it was just a matter of a year or two. No, I'm—He's the adult.

PETERSON: Under no circumstance then are you telling me that could you [sic] acquit?

PORTER: No, I really couldn't.

PETERSON: Okay. Even if the law were given to you that 16 is the age of consent?

PORTER: Even then I couldn't do it.

PETERSON: And you would not follow the law even if that turned out to be the facts of the case?

PORTER: Well, I might be forced to follow the law, but I wouldn't agree with it. That's not the way I'd probably vote.

PETERSON: You would lean towards not following the law; is that fair?

PORTER: Yeah.

After challenging Porter for cause, the District Court allowed the State's attorney, Beverly Tronrud (Tronrud), to question her. Their exchange proceeded as follows:

TRONRUD: Ms. Porter, the Judge is going to give you a set of instructions, if you're chosen as a juror, that lists out all the law that you have to follow. I think one of the instructions that you'll be given is it says that anyone under 16 cannot consent. But if the defendant can show that he thought she was 16 or older, that's a defense. If the Judge instructs you as to what the law is, you can follow the law, can't you?

PORTER: Yes. But this comes down to a matter of judgment, and if the girl's foolish, I mean, every man knows, or a woman, if the situation was reversed, that a matter of months in a birthday, if there's a chance, you don't take a chance.

TRONRUD: Something you said in that it's all a matter of a judgment and your judgment of the witnesses as well, and if the defendant chooses to testify, you will have a judgment of him, in light of the other witnesses, too—

PORTER: Right.

TRONRUD:—is that fair to say?

PORTER: Yeah.

TRONRUD: So you're just judging everything together and you're going to apply the law to that, would that be fair?

PORTER: Yeah.

TRONRUD: Would you be able to do that?

PORTER: Yeah.

TRONRUD: Okay. Thank you.

The State objects [to dismissal for cause], Your Honor.

Following this exchange, the District Court stated: "That objection is sustained. I think the juror has stated that she will at least follow that law."

¶ 9 In response to the same question regarding the defense of consent in the context of a belief the victim was old enough to consent, Juror James L. Hansen (Hansen) stated:

HANSEN: Well, I would certainly consider that the girl lied as a defense, but I think a defendant in this case should, oh, probably be perceptive enough to realize that teenagers lie about their ages, and I think he should be cautious enough to be aware of that.

PETERSON: If you were faced with a decision of acquitting based on a reasonable belief that the girl or the young woman we're talking about here represented herself as older than 15, and you could see that it was reasonable to, for a defendant to maybe rely on that, could you acquit him?

HANSEN: I'm not sure.

PETERSON: What would give you pause?

HANSEN: Well, I guess just the fact that teenagers do sometimes lie about their age, and I would consider that that may have been the information the defendant was given, it would still be difficult for me to do. I just think that an adult should be cautious enough to avoid situations like that.

PETERSON: Would you follow the law given you at the end of the case and apply the facts to the law?

HANSEN: Yes.

PETERSON: And if 16 is the age of consent, and it was your opinion that he had a reasonable belief, would you acquit him?

HANSEN: I could consider that anyway, I could consider it.

PETERSON: Would you acquit him?

HANSEN: I don't know.

PETERSON: You don't know if you'd be able to apply the law given to you to the facts?

HANSEN: (No oral response.)

PETERSON: Is that what you're saying, even though you understand what you're being told by the Judge?

HANSEN: Okay. I could apply the law, yes.

Further, at the end of voir dire Peterson asked:

PETERSON: Is there anybody who does not feel they can be fair and impartial?

HANSEN: (Raises hand.)

PETERSON: Yes, sir.

HANSEN: Well, I think just my relationship with my daughter and her current job, I think I probably have some sympathies toward the victims just from what our daughter goes through dealing with those victims.

Hansen explained earlier during voir dire that his daughter had worked as a sexual assault coordinator for the YWCA for the past few months, that she previously worked with the same group on domestic abuse, that she did an internship at the Billings Police Department in college, and that she lived at home. Hansen also stated that while he did not know the specific identities of victims his daughter worked with, he was aware of the stresses of her job and how people's lives were affected by such situations, and that he would find it difficult to be impartial given his understanding of her experience. After brief questioning by the State which confirmed that Hansen was not familiar with the specific alleged victims in this case and that he would follow the law, the District Court denied Freshment's challenge for cause to dismiss Hansen. Freshment now appeals the denials of his challenges to Jurors Porter and Hansen and also appeals the denial of his motion to sever.

II. ISSUE ONE

¶ 10 Did the District Court abuse its discretion when it denied Freshment's motions to dismiss two jurors for cause?

A. Standard of Review

¶ 11 We review denial of a challenge to dismiss a juror for cause for abuse of discretion. State v. Good, 2002 MT 59, ¶ 40, ___ Mont. ___, ¶ 40, 43 P.3d 948, ¶ 40. To determine whether to dismiss a juror for cause, trial courts are guided in part by § 46-16-115(2)(j), MCA, which provides:

A challenge for cause may be taken for all or any of the following reasons or for any other reason that the court determines:

...

(j) 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. Because of the right to a trial by an impartial jury, Art. II, Sec....