State v. LaMere

• Decision Date: 15 February 2000
• Docket Number: No. 97-702.,97-702.
• Citation: 2000 MT 45,298 Mont. 358,2 P.3d 204
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Clifford Thomas LaMERE, Defendant and Appellant.

2 P.3d 204

2000 MT 45

298 Mont. 358

STATE of Montana, Plaintiff and Respondent, v. Clifford Thomas LaMERE, Defendant and Appellant.

No. 97-702.

Supreme Court of Montana.

Argued May 4, 1999.

Submitted June 29, 1999.

Decided February 15, 2000.

Scott A. Albers (argued), Attorney at Law, Great Falls, Montana, For Appellant.

Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan (argued), Assistant Attorney General; Helena, Montana, Brant S. Light, Cascade County Attorney, Great Falls, Montana, For Respondent.

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

¶ 1 At approximately 1:00 p.m. on February 21, 1997, in an alley in Great Falls, Clifford Thomas LaMere (LaMere), an indigent three-fourths Chippewa Cree Indian, stabbed and killed Steven Brownlee, a white male. The State of Montana (the State) charged LaMere with deliberate homicide. In response, LaMere argued that he had killed the victim in self-defense. On August 15, 1997, LaMere filed a pre-trial Motion to Strike the Jury. LaMere's motion was subsequently denied by the Eighth Judicial District Court, Cascade County. On August 22, 1997, the jury found LaMere guilty of mitigated deliberate homicide.

¶ 2 LaMere appeals from the District Court's denial of his motion to strike the jury panel. We reverse and remand for a new trial.

¶ 3 The sole issue on appeal is whether the District Court erred in concluding that LaMere failed to show that the telephone-dependent summoning procedure utilized in Cascade County prejudiced his substantial rights to a jury drawn and summoned according to law.

FACTUAL AND PROCEDURAL HISTORY

¶ 4 In a pre-trial conference held on August 7, 1997, the District Court directed that the jury for LaMere's trial be "pulled" by the following day, and that 100 jurors be summoned to appear in court. However, the jury clerk of court never received a written order from the District Court as to the number of jurors to draw for LaMere's trial. Thus, the clerk utilized computerized random selection to draw 200 names from the list of eligible jurors in Cascade County. Of those possible jurors, 101 were summoned to court by telephone for LaMere's trial. LaMere objected to the sole use of the telephone by the clerk of court to summon prospective jurors and requested a hearing on the matter. A hearing was set for August 18, 1997, the day before trial.

¶ 5 On August 15, 1997, LaMere filed a motion to strike the jury panel and a supporting brief. In this motion, LaMere did not object to the computerized method utilized to randomly draw the names of prospective jurors for his trial, but to the jury clerk's use of the telephone to summon those prospective jurors into court. LaMere argued that the clerk's telephone-dependent method of summoning prospective jurors failed to substantially comply with Montana statutes governing the impaneling of a trial jury because the clerk failed to either serve by mail or have the sheriff personally serve those persons drawn for possible jury duty in his trial. LaMere also alleged that his constitutional right to trial by a fair and impartial jury had been violated in that the telephone-dependent method of summoning prospective jurors resulted in an "[a]rbitrary removal and de facto screening" of the venire when a prospective juror did not receive, answer, or return the clerk's call.

¶ 6 On the morning of the scheduled hearing, LaMere filed a motion to supplement the record and accompanying brief. LaMere supplemented the record on his motion to strike the jury panel with statistics from the United States Census Bureau showing percentages of persons living below the poverty line in Cascade County, including Native Americans, who are without telephone service.¹ These statistics revealed a substantial discrepancy regarding the availability of phone service between those persons living above and below the poverty line in Cascade County. LaMere's statistics showed that, of the 25,731 households in Cascade County living above the poverty line, only 3% (741 households) have no phone service. In contrast, of the 4,402 households in Cascade County living below the poverty line, 21% (935 households) have no phone service.

¶ 7 In Cascade County, Native Americans constitute the single largest minority group, outnumbering African Americans, Asian Americans, and other racial or ethnic groups. LaMere's statistics showed an even more significant statistical disparity in access to telephone service between Anglo American and Native American races living in Cascade County, particularly when factoring in poverty. Of the 904 total Native American households in Cascade County living above or below the poverty line, 29% (262 households) have no phone service. Even more dramatically, 51% of Native American households in Cascade County live below the poverty line and, of those 458 households, 44% (203 households) have no phone service. In stark contrast, of the 28,577 total Anglo American households living above or below the poverty line in Cascade County, only 5% (1,379 households) are without phone service. Moreover, 13% of Anglo American households in Cascade County live below the poverty line and, of those 3,827 households, 19% (719 households) have no phone service.

¶ 8 In his motion to supplement the record, LaMere also introduced the affidavit of Joe Seipel (Seipel), statistician, as an exhibit. After reviewing the telephone-dependent technique used to summon jurors in Cascade County, Seipel opined that:

The sampling procedures used to [summon] jurors are biased because the methods used exclude people from households that do not have a telephone. Those most likely to be excluded because they have no telephone are below poverty persons (21% below poverty versus 3% above poverty... ). This has two ramifications. First, by eliminating from the jury pool households without phones, below poverty households are seven times more likely to be excluded from jury participation (3% above poverty vs. 21% below poverty level without phones). Second, by eliminating from the jury pool households without phones, the ratio of households above or below the poverty [sic] shifts. That is to say, by using some jury notification procedure which intentionally excludes households without phones the percentage possibility of a person from a below poverty household being chosen for jury duty is 4,402/30,133, or 15%. By eliminating those households without phones, the sample shifts in favor of persons from above poverty households to a chance of 3,467/28,457, or 12%. In the converse, persons in above poverty households obtain a corresponding advantage in being selected for jury duty from 85% to 88%.

This bias violates basic sampling theory because it permits a 6% shift from the population sampled. In my opinion, the 6% shift renders invalid the sampling procedure used for jury notification because it is not representative nor is it random....

¶ 9 At the hearing on his motion to strike the jury panel, LaMere examined Lisa Gomez (Gomez), the jury clerk for the District Court. Gomez testified that she is employed by the District Court between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, and that the jurors for LaMere's trial were summoned exclusively by phone calls she made between those working hours. Gomez further testified that she had not mailed a written jury summons to any of the prospective jurors in this case, and that she had not requested that the sheriff personally serve notice of LaMere's trial on those persons whom she was unable to contact by telephone.

¶ 10 Utilizing the clerk's personal notes regarding the 200-person panel drawn for trial, LaMere examined Gomez about those jurors whom she was unable to summon by telephone. This examination showed that seventy eliminations from possible jury service in LaMere's trial occurred through the use of the "`phone-only' system" for notifying prospective jurors: (1) twenty-three prospective jurors were not summoned because they had no work or home phone number listed on their juror questionnaire; (2) twelve prospective jurors were not summoned because there was no answer to the clerk's call; (3) twelve prospective jurors were not summoned because a message left by the clerk on an answering machine or voice mail was not returned; (4) eighteen prospective jurors were not summoned because, after the clerk left a message with an unnamed third person at the juror's residence or workplace, no response was obtained; (5) four prospective jurors were not summoned because, after speaking with an unnamed third person at the juror's residence or workplace, the clerk was informed that that juror was out of town on business or vacation and would not return in time for trial; and (6) one prospective juror was not summoned because that juror was hearing impaired and the clerk did not utilize a special telephone.

¶ 11 The District Court denied LaMere's motion to strike the jury panel. The court found that the telephone summoning procedure was "reasonable," and that the statutory term "summon" did not require the mailing or personal service of a written jury summons. The court reasoned that the absence of any notice to some of the prospective jurors in LaMere's trial resulting from the telephone summoning procedure had not created "any prejudice" because LaMere had failed to adduce any "evidence of a systematic exclusion of any racial, gender, social, economic or other group" from the venire.

¶ 12 During the initial questioning of prospective jurors, LaMere renewed his motion to strike the jury panel on the ground of gender bias. Since the first group of prospective jurors to be questioned consisted of twenty women and seven men, LaMere asserted that the telephone-dependent procedure for summoning prospective jurors resulted in an arbitrary three-to-one ratio in favor of women. LaMere argued that he was prejudiced by the gender makeup of the venire because women—especially...