State v. Kennedy, 02-259

• Decision Date: 05 March 2004
• Docket Number: No. 02-259,02-259
• Citation: 320 Mont. 161,85 P.3d 1279,2004 MT 53
• Parties: STATE OF MONTANA, Plaintiff and Respondent, v. VICTOR VANN KENNEDY, Defendant and Appellant.
• Court: Montana Supreme Court

2004 MT 53

320 Mont. 161

85 P.3d 1279

STATE OF MONTANA, Plaintiff and Respondent, v. VICTOR VANN KENNEDY, Defendant and Appellant.

No. 02-259

Supreme Court of Montana.

Argued and Submitted: October 15, 2003

Decided: March 5, 2004

For Appellant: Kristina Guest (argued), Appellate Defender Office, Helena, Montana.

For Respondent: Hon. Mike McGrath, Montana Attorney General, Jim Wheelis (argued), Assistant Attorney General; Dennis Paxinos, Yellowstone County Attorney, Billings, Montana.

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Following a jury trial, Appellant Victor Vann Kennedy was convicted of sexual intercourse without consent in the Thirteenth Judicial District Court, Yellowstone County. During the trial, it was discovered that one of the jurors had a mid-trial conversation with a Billings police detective who was slated to be called as a State's witness. As a result, Kennedy moved for a mistrial. The District Court denied Kennedy's motion, and the trial proceeded. Kennedy appeals. We affirm the judgment of the District Court.

¶2 Kennedy raises two issues on appeal:

¶3 1. Did the District Court violate Kennedy's constitutional right to be present at the critical stages of his trial when it excluded him from its conversation with juror Mike Clark?

¶4 2. Did Mike Clark's conversation with Detective Helderop constitute juror misconduct?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On February 22, 2001, the State filed an information charging Kennedy with one count of sexual intercourse without consent, in violation of § 45-5-503, MCA (1999), one count of aggravated kidnapping by accountability, in violation of §§ 45-2-301 and 45-5-303, MCA (1999), and two counts of sexual intercourse without consent by accountability, in violation of §§ 45-2-301 and 45-5-503, MCA (1999). Kennedy pled not guilty to all four counts.

¶6 The case proceeded to jury trial on July 16, 2001. One of the witnesses slated to testify for the State was Detective Trevor Helderop from the Billings Police Department. As such, the prosecutor questioned the prospective jurors during voir dire about whether or not they were acquainted with Helderop. The relevant portion of the prosecutor's inquiry is as follows:

Prosecutor: How about Detective Trevor Helderop with the Billings Police Department?

. . .

Prosecutor: Okay. Good morning.

Prospective Juror: Hi.

Prosecutor: What is your name, sir[?]

Prospective Juror: Mike Clark.

Prosecutor: Do you know - are you friends with Detective Helderop?

Clark: Yes, he is my friend.

Prosecutor: I think I knew that. Will you be able to sit and listen to his testimony? Are you comfortable with that?

Clark: Yeah.

Prosecutor: Will you be prone to give it any more weight because you know him?

Clark: No.

Prosecutor: All right.

Clark was ultimately selected as a member of the jury panel.

¶7 Before testimony commenced on the first day of trial, the District Court gave the jury the following admonition:

It is important as jurors and officers of the court [that] you obey the following instructions at any time you leave the jury box, whether it be for recesses of the court during the day, or when you leave the courtroom to go home at night. First, done [sic] talk about this case among yourselves or with anyone else during the course of the trial. . . . You may only enter into discussion about this case with the other members of the jury after it is submitted to you for your decision. All such discussion will take place in the jury room.

Second, do not let any person talk about this case in your presence. If anyone does talk about it, tell them you are a juror on the case. If they want [sic] stop talking, report that to me as soon as you are able to do so. . . .

Third, although it is normal human tendency to talk and visit with people, both at home and in public, you may not during the time you serve on this jury talk with any of the parties or their attorneys or any witnesses. By this I mean not only do not talk about the case, but do not talk at all, even to pass the time of day. In no other way can the parties be assured of the fairness they are entitled to expect from you as jurors. [Emphasis added.]

The District Court repeated a similar admonition, warning the jurors not to discuss the case amongst themselves or with anyone else, each time the court broke for a recess.

¶8 Before testimony began on July 18, 2001, the third day of trial, the District Court met with counsel in chambers to discuss a situation involving one of the jurors. The prosecutor explained the situation as follows:

We had information last night that Trevor Helderop has had communication with one of the jurors, Mr. Clark, Mike Clark . . . Here is how that communication began and what the substance was . . . Yesterday, Trevor Helderop called [victim/witness assistant Sandy Harris] to check in about when he was to testify and asked her, How is it going? [Sandy's] response to him was, It is going fine, with the exception . . . that there is one juror who won't look at [the victim] while she's testifying. Sandy said, I think that [that juror] is your friend. . . . That was the extent of their conversation.

Unbeknownst I think to any of us, Mr. Helderop's friendship with Mr. Clark is more significant than I think we knew, although Mr. Clark did disclose during jury selection he was friends with Mr. Helderop, apparently they are [the] best of friends and are in daily communication.

Mr. Clark contacted Mr. Helderop yesterday at noon, as it is their custom to talk everyday. When they were having the conversation, Mr. Helderop initiated the statement, I understand you won't look at the victim. [Clark] responded by saying, She has been through enough, she didn't need one more person staring at her.

Yesterday, late afternoon, after court was over . . . another officer . . . called Sandy Harris and said, I think Helderop has had contact with a juror. . . . Sandy Harris hung up and immediately reported that to us.

¶9 Defense counsel responded to this information by moving for both a mistrial and a dismissal with prejudice. The prosecutor requested that the District Court remove Clark from the jury and replace him with the alternate juror. The prosecutor further offered to exclude Helderop as a witness. Defense counsel objected to the prosecutor's suggestion, stating that because the other jurors were aware of Clark's friendship with Helderop, Clark's sudden removal could contaminate the rest of the jury panel. Defense counsel further reminded the District Court that the misconduct had been initiated by Helderop. After some discussion, the District Court excused counsel from chambers, stating that:

I need the statute [on juror replacement]. I need to look at that . . . I need to determine, first of all, from this Mike Clark, you know, his view of the situation. And if I - I'll do that in chambers on the record with [the court reporter] and advise you accordingly.

¶10 With the court reporter present, the District Court then met with Clark in chambers. Neither Kennedy nor any member of counsel was present during this meeting. When questioned about his conversation with Helderop, Clark stated that he had misunderstood the District Court's admonition that the jurors were not to have contact with the witnesses. Clark further stated that while he and Helderop had discussed his lack of eye contact with the victim, they did not discuss any aspect of the case itself. Finally, Clark stated that he did not mention his conversation with Helderop to the other jurors. The District Court reacted by excusing Clark from jury service and warning him not to speak to the other members of the jury panel.

¶11 Following its meeting with Clark, the District Court again met with counsel in chambers. The prosecutor moved to replace Clark with the alternate juror. Defense counsel objected, and renewed his motion for a mistrial. The District Court denied defense counsel's motion and replaced Clark with the alternate juror. The District Court made no statement to the jury panel regarding Clark's removal.

¶12 The prosecution excluded Helderop as a witness and the trial proceeded to conclusion. On July 20, 2001, the jury found Kennedy guilty of sexual intercourse without consent. Kennedy was sentenced on February 13, 2002. He filed a timely appeal.

STANDARD OF REVIEW

¶13 Whether a criminal defendant's right to be present at the critical stages of his or her trial has been violated is a question of constitutional law. Our review of questions of constitutional law is plenary. Schmill v. Liberty Northwest Ins. Corp., 2003 MT 80, ¶ 9, 315 Mont. 51, ¶ 9, 67 P.3d 290, ¶ 9. We review a district court's conclusions of law to determine whether its interpretation of the law is correct. State v. Ray, 2003 MT 171, ¶ 12, 316 Mont. 354, ¶ 12, 71 P.3d 1247, ¶ 12.

¶14 A district court's determination of whether to grant a motion for a mistrial must be based on whether the defendant has been denied a fair and impartial trial. State v. Herrman, 2003 MT 149, ¶ 36, 316 Mont. 198, ¶ 36, 70 P.3d 738, ¶ 36. This Court's standard of review of a grant or denial of a motion for a mistrial is whether the district court abused its discretion. Herrman, ¶ 36. Similarly, the decision of a district court as to the impartiality of a jury should not be set aside unless there is a clear abuse of discretion. State v. McMahon (1995), 271 Mont. 75, 78, 894 P.2d 313, 315.

DISCUSSION

ISSUE 1

¶15 Did the District Court violate Kennedy's constitutional right to be present at the critical stages of his trial when it excluded him from its conversation with juror Mike Clark?

¶16 The federal constitutional right to be present at all criminal proceedings is one of the most basic rights contained in the Confrontation Clause of the Sixth Amendment. State v. Tapson, 2001 MT 292, ¶ 14, 307 Mont. 428, ¶ 14, 41 P.3d 305, ¶ 14 (citing Illinois v. Allen (1970), 397 U. S. 337, 338, 90 S. Ct. 1057, 1058, 25...