State v. Heath, No. 02-403

Decision Date10 March 2004
Docket Number No. 02-405, No. 02-403
Citation320 Mont. 211,2004 MT 58,89 P.3d 947
PartiesSTATE OF MONTANA, Plaintiff and Respondent, v. BARRY ALONZO HEATH, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Chad Wright, Appellate Defender, Helena, Montana,

For Respondent: Honorable Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana Brant Light, Cascade County Attorney; John Parker, Marvin Anderson, Deputy County Attorneys, Great Falls, Montana.

Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Barry Alonzo Heath appeals from the judgment and sentence entered by the Eighth Judicial District Court, Cascade County, on a jury verdict convicting him of the felony offenses of sexual intercourse without consent and witness tampering. We affirm in part, reverse in part and remand for resentencing.

¶2 Heath raises the following issues on appeal:

¶3 1. Did the District Court abuse its discretion in denying Heath's challenges to two prospective jurors for cause?

¶4 2. Did the District Court err in sentencing Heath on the conviction for sexual intercourse without consent?

BACKGROUND

¶5 The State of Montana charged Heath by information with committing the felony offense of sexual intercourse without consent and, in a later information ultimately consolidated with the first, with committing the felony offense of witness tampering. It alleged Heath raped his housemate, a woman with whom he had once been romantically involved, and wrote the woman letters from jail while the first charge was pending. The District Court scheduled a jury trial.

¶6 During voir dire, the District Court denied Heath's challenges for cause regarding two prospective jurors, and Heath used two of his six peremptory challenges to remove them. The case proceeded to trial and the jury convicted Heath of both charges. The District Court entered judgment and sentenced Heath. Heath appeals.

STANDARDS OF REVIEW

¶7 In reviewing a trial court's denial of a challenge for cause, we determine whether the trial court abused its discretion. State v. Falls Down, 2003 MT 300, ¶ 17, 318 Mont. 219, ¶ 17, 79 P.3d 797, ¶ 17 (citation omitted). In the context of challenges for cause, a court abuses its discretion if it fails to excuse a prospective juror whose actual bias is discovered during voir dire. State v. Freshment, 2002 MT 61, ¶ 12, 309 Mont. 154, ¶ 12, 43 P.3d 968, ¶ 12 (citations omitted). Structural error requiring automatic reversal occurs when a district court abuses its discretion in denying a defendant's challenge for cause, the defendant uses a peremptory challenge to remove the disputed prospective juror, and the defendant exhausts all peremptory challenges. Freshment, ¶ 14 (citation omitted).

¶8 We review a criminal sentence for legality only; that is, whether the sentence is within statutory parameters. A trial court's statutory interpretation is a question of law, which we review to determine whether it is correct. State v. Kern, 2003 MT 77, ¶ 46, 315 Mont. 22, ¶ 46, 67 P.3d 272, ¶ 46 (citations omitted).

DISCUSSION

¶9 1. Did the District Court abuse its discretion in denying Heath's challenges to two prospective jurors for cause?

¶10 The bases for challenging potential jurors for cause in Montana are set forth in § 46-16-115(2), MCA. One specified basis is that a juror has "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. If voir dire examination raises a serious question about a prospective juror's ability to be fair and impartial, dismissal for cause is favored. Freshment, ¶ 11 (citation omitted).

¶11 In a case concerning the right of the press and public to attend individual voir dire examinations, we stated generally:

It is only where [prospective jurors] form fixed opinions on the guilt or innocence of the defendant which they would not be able to lay aside and render a verdict based solely on the evidence presented in court that they become disqualified as jurors.

Great Falls Tribune v. District Court (1980), 186 Mont. 433, 439-40, 608 P.2d 116, 120 (citations omitted). While Great Falls Tribune did not directly address challenges for cause, we have repeated this rule in numerous subsequent cases involving challenges for cause without clarifying how it meshes with the "state of mind" basis for challenges for cause set forth in § 46-16-115(2)(j), MCA.

¶12 In State v. DeVore, 1998 MT 340, ¶¶ 14, 21, 292 Mont. 325, ¶¶ 14, 21, 972 P.2d 816, ¶¶ 14, 21, overruled on other grounds, State v. Good, 2002 MT 59, ¶ 63, 309 Mont. 113,

¶ 63, 43 P.3d 948, ¶ 63, we set forth both the statutory "state of mind" rule and the "fixed opinion" rule. With regard to the latter, we rejected the State's argument that our review of rulings on challenges for cause "is limited only to whether the juror has stated a specific belief that the defendant is guilty as charged." DeVore, ¶ 22. We concluded the prospective jurors at issue demonstrated "another form of bias" by stating beliefs that people charged with criminal offenses must be "guilty of something" and by having difficulty understanding and applying the presumption of innocence. DeVore, ¶ 24. We did not expressly state that the prospective jurors' bias met the statutory "state of mind" criterion, but that was clearly the essence of our conclusion.

¶13 In Good, ¶ 42, we applied only § 46-16-115(2)(j), MCA, which — as set forth above — focuses on whether prospective jurors have a "state of mind" which would prevent them from acting with entire impartiality and without prejudice to either party's substantial rights. We concluded the prospective jurors at issue did not state "an unequivocal opinion that [the defendant] was guilty as charged," but did express "a form of bias based on their belief that a young sexual abuse victim would not lie." Good, ¶ 53. We ultimately held that the denials of the challenges for cause required automatic reversal. Good, ¶ 66.

¶14 In Freshment, we quoted the statutory "state of mind" basis for a challenge for cause and also reiterated the "fixed opinion" rule. Freshment, ¶¶ 11-12 (citations omitted). We did not apply the "fixed opinion" rule, however. Instead, we determined that prospective jurors "stated an actual bias directly related to an issue critical to the outcome of the case" — namely, whether the defendant could have a reasonable belief that an alleged victim of sexual intercourse without consent was 16 or older — and reversed. Freshment, ¶¶ 16, 19.

¶15 In Falls Down, we set forth both the statutory "state of mind" rule and the "fixed opinion" rule in the course of affirming a district court's denial of four challenges for cause. Falls Down, ¶ 22-23. There, three prospective jurors expressed initial opinions of guilt based on what they had seen in the media, and one juror indicated he was not certain how he would feel if the defendant did not take the stand. Falls Down, ¶¶ 25-26, 28, 31, 33. After brief questioning by the trial court and counsel, the prospective jurors stated some variant of their ability to base their decision on the evidence, apply the presumption of innocence, and set aside any personal opinions. Falls Down, ¶¶ 25, 28, 31, 33. As to each juror, we concluded no fixed opinion had been established. Falls Down, ¶¶ 27, 30, 32, 35. We ultimately determined the prospective jurors demonstrated they could be fair and impartial. Falls Down, ¶ 36.

¶16 From this abbreviated review of our recent decisions addressing challenges for cause, it appears that the "fixed opinion of guilt" rule is oft-repeated but seldom applied, and clarification is necessary. As we observed in DeVore, our prior cases addressing juror impartiality did not necessarily involve jurors who had stated a fixed opinion regarding the defendant's guilt; rather, "circumstantial evidence of bias was apparent in relation to the particular circumstances of the defendant's case." DeVore, ¶ 23 (citations omitted). Therefore, we conclude that the "fixed opinion of guilt" rule is but one argument which can be asserted under the statutory "state of mind" basis for a challenge for cause. We further conclude that challenges for cause asserted under § 46-16-115(2)(j), MCA, must be determined pursuant to both the statutory language and the totality of the circumstances presented. With that clarification in mind, we turn to the District Court's denial of Heath's two challenges for cause.

Prospective Juror Carmen Caldwell

¶17 Prospective juror Carmen Caldwell stated she had volunteered as a rape survivor advocate in college and her ex-boyfriend had stalked her. Heath argues that direct and circumstantial evidence reveals Caldwell was biased.

¶18 Heath first contends that Caldwell's statements constituted direct evidence of her bias. He correctly, but selectively, quotes portions of Caldwell's exchanges with counsel. We review the totality of her responses to determine whether they raised a serious question that she could not be fair and impartial. See Freshment, ¶ 11.

¶19 Prosecutor John Parker asked if any panelists could not agree to afford Heath the presumption of innocence, and no panelist responded. He asked Caldwell what type of information she would examine to make an important decision, and she stated she would "look at the facts first." Later, Parker asked the panelists whether they or their friends had been crime victims, and Caldwell responded:

Caldwell: Yes. I've known someone. And I myself have been a victim, and I wouldn't have a problem with that. It wouldn't affect my judgment.
Parker: You're willing and able to set it aside, in other words?
Caldwell: Right.

Parker then inquired about what evidence Caldwell would expect in a sexual intercourse without consent trial, and she stated, "[w]ell,...

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