State v. Herrman

• Decision Date: 28 May 2003
• Docket Number: No. 01-720.,01-720.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Raymond HERRMAN, Defendant and Appellant.
• Court: Montana Supreme Court

70 P.3d 738

2003 MT 149

316 Mont. 198

STATE of Montana, Plaintiff and Respondent, v. Raymond HERRMAN, Defendant and Appellant.

No. 01-720.

Supreme Court of Montana.

Submitted on Briefs October 31, 2002.

Decided May 28, 2003.

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

Mike McGrath, Attorney General; Mark Mattioli, Assistant Attorney General, Helena, Montana, Dennis Paxinos, County Attorney; Scott D. Twito, Deputy County Attorney, Billings, Montana, for Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Raymond Herrman (Herrman) appeals from his conviction of driving under the influence of alcohol following a jury trial in the Montana Thirteenth Judicial District Court, Yellowstone County. We dismiss Herrman's claim of ineffective assistance of counsel and overrule State v. Chastain (1997), 285 Mont. 61, 947 P.2d 57, to the extent that it is inconsistent with this opinion. We decline to address whether the District Court abused its discretion in denying Herrman's motions for mistrial. ¶ 2 The following issues are presented on appeal:

¶ 3 1. Did Herrman receive constitutionally effective assistance of counsel during voir dire?

¶ 4 2. Did the District Court abuse its discretion in denying Herrman's motions for mistrial?

Factual and Procedural Background

¶ 5 On August 18, 2000, Herrman was arrested in Billings, Montana, by a city police officer. He was subsequently charged with the offense of Driving Under the Influence of Alcohol in violation of § 61-8-401, MCA. Herrman was represented at trial by a Deputy Yellowstone County Public Defender and by the Chief Deputy Yellowstone County Public Defender. The jury found Herrman guilty of DUI and the District Court sentenced Herrman to ten years in the Montana State Prison. As this was Herrman's fourth felony conviction of driving under the influence of alcohol, the court designated Herrman as a persistent felony offender. Herrman appeals his conviction.

¶ 6 The circumstances giving rise to this appeal occurred at the beginning of Herrman's trial, specifically, during his initial entrance into the courtroom and during jury voir dire. Prior to the commencement of voir dire, Herrman was brought into the courtroom, in front of prospective jury members, wearing belly chains and handcuffs, which he wore for approximately ten minutes. Immediately following his entrance into the courtroom, Herrman's counsel moved for a mistrial, arguing that his appearance would affect the ability of the jurors to be impartial. The District Court denied the motion for mistrial and directed counsel to address the issue during voir dire. During voir dire, the State and defense counsel questioned the jury panelists about the incident. Each panelist responded that seeing Herrman in restraints would not affect his or her ability to be fair and impartial. At the close of trial, while the jury was in deliberations, defense counsel renewed the motion for a mistrial. The District Court reserved its ruling pending a poll of each jury member. After the jury had concluded deliberations, and prior to the reading of the verdict, the District Court asked each member of the jury whether seeing Herrman in chains had affected his or her deliberations "regarding his guilt or innocence." Each juror answered in the negative. Consequently, the court denied the motion for a mistrial, finding that, given the jurors' response, no indication of prejudice existed.

¶ 7 In all, twenty-four panelists were summoned in Herrman's case. In addition to Keith Montgomery, Denise Brown, Jack Byrnes, and Mindy Crain, the four panelists specifically at issue here, the remaining twenty panelists included the following: Sidney Susler, a former driver's education teacher whose son-in-law is a federal marshal; Cheryl Galt, whose son is in law enforcement; Kathryn Gunderson, whose husband is an agent in charge of the local Bureau of Alcohol, Tobacco and Firearms; Cari Baxter who lives next door to a police officer; Randall Fitch, whose good friend is an agent for the FBI; Patricia Kroger, who works for the federal fleet center and who is required sometimes to investigate fatal accidents involving alcohol; and Vivian Neumann, who once took her son's driver's license away and sold his car after he violated the terms of his minor in possession probation.

¶ 8 During voir dire, the prosecutor established that panelist Keith Montgomery was the Yellowstone County Coroner and knew the arresting officer. The prosecutor also elicited that Montgomery had strong feelings about DUIs; that he had dealt with the DUI Enforcement Division; that he belonged to two organizations that deal with DUIs and DUI prevention (Your Choice and MADD); that he teaches high school students about DUI prevention and about the accidents and injuries that result from DUIs; that he would try to set aside his strong feelings and be a fair and impartial juror; that he, nonetheless, "didn't know" about being impartial and would have to see the facts; and that he had seen a lot of DUI fatalities over his twelve years experience as a coroner.

¶ 9 Montgomery indicated that he would try to leave behind his prior experiences and strong feelings. As defense counsel had done with each panelist, she inquired of Montgomery regarding the presumption of innocence and he agreed with the principle. Defense counsel did not challenge Montgomery for cause, although she later challenged him peremptorily.

¶ 10 The prosecutor also established that panelist Jack Byrnes was a former law enforcement officer in California; that he had been involved with "quite a few" DUI situations as a former member of law enforcement; that it was Byrnes' opinion "that a policeman doesn't stop someone for just no reason ... [t]here had to be a reason for them to be stopped or an accident or something;" that the "person is not arrested for drunk driving or driving under the influence without reason;" that Byrnes would not promise to acquit if the State did not prove defendant's guilt beyond a reasonable doubt; and that Byrnes would try to be fair.

¶ 11 Defense counsel got Byrnes to again admit his inclination that Herrman would not be in court unless he had done something, but that he, Byrnes, would try to acquit if the State did not prove its case. Defense counsel did not challenge Byrnes for cause nor did she ask him any more questions; however, she did use a peremptory challenge to exclude Byrnes from the panel.

¶ 12 With respect to panelist Denise Brown, the prosecutor elicited that Brown's husband was a police officer; that the fact he was a police officer and that witnesses in the case were members of the police department was "probably" going to affect her ability to be fair and impartial, but that she would try and that she could follow the court's instruction. Defense counsel asked a couple of questions about whether Brown realized that police officers are human beings and make mistakes, but did not otherwise challenge Brown peremptorily or for cause, and Brown sat as one of the jurors.

¶ 13 Panelist Mindy Crain responded to the prosecutor that she believed that she could follow the law, but that she did not feel she could be impartial because her father drove a wrecker. Crain stated that she had "personally seen too many accidents from drinking and driving and what happens to people." She also noted that her father had come home and relayed stories to his family about how he had difficulties getting people out of cars from accidents in which they had been involved. Crain answered that she "could try" to be fair.

¶ 14 Defense counsel, again, elicited from Crain that she would have a hard time being impartial because of all the stories she had heard about car accidents from her father. Crain stated that she would try to make her decision based on the facts presented. Counsel did not challenge Crain for cause, instead using a peremptory challenge to strike her from the panel.

¶ 15 Summarizing the foregoing, although defense counsel did not challenge panel members Montgomery, Byrnes, Brown or Crain for cause, she did remove Montgomery, Byrnes, and Crain with peremptory strikes. Defense counsel then used her remaining three peremptory challenges to strike panel member Vivian Neumann, who stated that her son was caught driving drunk and that being strict was good for him; panel member Ronald Smith who knew the prosecutor and his family socially; and panel member Kathryn Gunderson, whose husband worked in federal law enforcement, unrelated to DUIs.

¶ 16 The jury that was finally impaneled included the following individuals discussed previously: Sidney Susler, Cheryl Galt; Cari Baxter; Randall Finch; Patricia Kroger; and Denise Brown.

Standard of Review

¶ 17 In considering ineffective assistance of counsel claims on direct appeal, we apply the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20. In order to establish an ineffective assistance of counsel claim, a defendant must prove that: (1) the performance of defendant's counsel was deficient; and (2) counsel's deficient performance was prejudicial. See State v. Whitlow, 2001 MT 208, ¶ 17, 306 Mont. 339, ¶ 17, 33 P.3d 877, ¶ 17. ¶ 18 Claims of ineffective assistance of counsel are mixed questions of law and fact. See State v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, ¶ 47, 12 P.3d 934, ¶ 47 (citing Strickland, 466 U.S. at 698,104 S.Ct. at 2052,80 L.Ed.2d at 704), (stating "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact"). Therefore, our review is de novo. See Turner, ¶ 47 (citing Iaea v. Sunn (9th Cir.1986), 800 F.2d 861, 864); Langford v. Day (9th Cir.1996), 110 F.3d 1380, 1386; Strickland, 466 U.S. at 698,104 S.Ct. at 2070,80 L.Ed.2d at 704).

Discussion

I

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