State v. Marble, 04-280.

• Decision Date: 23 August 2005
• Docket Number: No. 04-280.,04-280.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Cody William MARBLE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 88

119 P.3d 88

2005 MT 208

STATE of Montana, Plaintiff and Respondent, v. Cody William MARBLE, Defendant and Appellant.

No. 04-280.

Supreme Court of Montana.

Submitted on Briefs June 7, 2005.

Decided August 23, 2005.

For Appellant: William F. Hooks, Attorney at Law, Helena, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Joslyn M. Hunt, Assistant Attorney General, Helena, Montana, Fred Van Valkenburg, Missoula County Attorney; Dori Brownlow, Deputy County Attorney, Missoula, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Cody William Marble (Marble) appeals from the judgment entered by the Fourth Judicial District Court, Missoula County, on his conviction and sentence for the offense of sexual intercourse without consent. We affirm.

¶ 2 Marble raises the following issues on appeal:

¶ 3 1. Did the District Court abuse its discretion in denying Marble's motion to excuse a juror for cause?

¶ 4 2. Did the District Court abuse its discretion in instructing the jury regarding witness credibility?

BACKGROUND

¶ 5 In March of 2002, the State of Montana (State) charged Marble by information with the felony offense of sexual intercourse without consent. The information alleged that Marble, while confined in the Missoula County Juvenile Detention Facility (Facility), knowingly had anal sexual intercourse without consent with another inmate of the Facility. The District Court scheduled a jury trial to begin on November 20, 2002.

¶ 6 Both Marble and the State provided the District Court with proposed jury instructions prior to trial. Marble objected to the State's proposed instruction regarding witness credibility and offered an alternative instruction. During the settling of instructions at trial, Marble renewed his objection to the State's witness credibility instruction and urged the District Court to give his alternative instruction. The court denied Marble's instruction and gave the State's instruction.

¶ 7 During voir dire of the jury panel on the first day of trial, defense counsel questioned the panel regarding whether any of them considered the act of anal sexual intercourse between two males so abhorrent that it would affect their ability to view and weigh the evidence fairly. One juror, John Stoner (Stoner), responded that his religious convictions made the idea of such an act, if true, morally repugnant to him. Defense counsel moved to have Stoner removed from the jury panel for cause and the District Court denied the motion. After further questioning of Stoner by defense counsel and the prosecutor, defense counsel again moved the District Court to excuse Stoner for cause. The District Court denied the motion. Marble subsequently used one of his peremptory challenges to remove Stoner from the jury panel.

¶ 8 The jury ultimately found Marble guilty of sexual intercourse without consent. The District Court sentenced him and entered judgment on the conviction and sentence. Marble appeals.

DISCUSSION

¶ 9 1. Did the District Court abuse its discretion in denying Marble's motion to excuse a juror for cause?

¶ 10 We review a district court's denial of a challenge for cause to determine whether the court abused its discretion. State v. Heath, 2004 MT 58, ¶ 7, 320 Mont. 211, ¶ 7, 89 P.3d 947, ¶ 7. "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." Heath, ¶ 7. In Montana, the challenging of a juror for cause is governed by statute which provides, in pertinent part, that a juror may be challenged for cause when the 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. Challenges asserted pursuant to this subsection, however, must be determined in light of both the statutory language and the totality of the circumstances presented. Heath, ¶ 16.

¶ 11 Furthermore, we have held that a trial court's failure to dismiss a biased juror for cause constitutes structural error, which is presumptively prejudicial and requires automatic reversal if the following three requirements are met: (1) a trial court abuses its discretion by failing to excuse a juror for cause; (2) the objecting party uses one of his or her peremptory challenges to remove the juror from the panel; and (3) the objecting party exercises all of his or her peremptory challenges. State v. Freshment, 2002 MT 61, ¶ 14, 309 Mont. 154, ¶ 14, 43 P.3d 968, ¶ 14.

¶ 12 Marble contends that the District Court abused its discretion in denying his motion to excuse juror Stoner for cause. It is undisputed here that Marble used a peremptory challenge to remove Stoner from the jury panel and that Marble used all of his allotted peremptory challenges in selecting the jury. Consequently, he asserts that the District Court's abuse of discretion in failing to excuse Stoner for cause constituted structural error, is presumptively prejudicial and requires reversal of his conviction.

¶ 13 During voir dire, defense counsel asked the jury panel whether any of them had religious, personal or philosophical beliefs which would lead them to consider the act of anal sexual intercourse between two males so abhorrent that it would affect their ability to hear and weigh the evidence fairly. Juror Stoner responded that he had moral and religious beliefs which made the idea of such an act, if true, repugnant to him. At that point, defense counsel moved the District Court to excuse Stoner for cause. The court denied the motion. Defense counsel again asked Stoner whether he had a religious conviction or moral repugnance against the act of sexual intercourse between two males and Stoner responded affirmatively. Defense counsel renewed the motion to excuse Stoner for cause and the District Court asked whether the prosecutor wished to voir dire Stoner. The following exchange took place:

Q: [by the prosecutor] Based on your religious convictions, do you feel like that would impinge upon your ability to follow the law as advised by the Judge?

A: [by Stoner] It would probably make the desire to follow the law stronger because I have convictions. And fairness is what's important. And truth is what's important. That's what's — to me, that's what actually has created my moral thought. And so, if someone is innocent and they're charged and they truly are innocent, I could weigh that.

Q: Do you feel like you could sit as an impartial juror and hear all of the evidence in this case?

A: I believe that.

¶ 14 Following this colloquy, defense counsel continued voir dire of Stoner and Stoner offered this statement:

The point I was trying to make was that because of that — because of who I am, morally, I weigh what's right and what's wrong. And so, hopefully, I'm that type of person to where — you know, if to be a conviction and the party is guilty, then I can weigh if they are or are not.

Defense counsel then questioned Stoner as follows:

Q: [by defense counsel] And, sir, I'm puzzled by your response, however, in that you say that if Cody Marble is innocent, then you can weigh the evidence. But, in fact, you as a juror would be determining that and you would have to be impartial from the outset about weighing the evidence. And — and my concern is that, um, moral repugnance is a very, very strong feeling. And it's backed by religious convictions in your case; correct, sir?

A: That would probably be a correct statement — what you said.

Q: And — and, sir, you've stated that if Cody Marble is innocent, then you can weigh the evidence. But do you understand that you must weigh the evidence in order to make that determination?

A: Sure.

Q: Do you feel that you can do that fairly?

A: Sure.

Defense counsel then again moved the District Court to remove Stoner for cause and the court denied the motion.

¶ 15 Marble asserts that Stoner had an acknowledged belief system which led him to find the alleged act of intercourse repugnant and that he appeared to condition his ability to fairly hear and weigh the evidence on Marble's being innocent. Thus, according to Marble, "Stoner approached his duties in reverse order — he could put his repugnance and religious convictions aside if Cody was innocent, which overlooks the fact that he would have to consider and weigh graphic testimony concerning commission of the alleged act, in making the determination of guilt or innocence." Marble contends that Stoner's viewpoint on this issue raised doubts as to whether he could weigh the evidence with unbiased impartiality and required the District Court to excuse Stoner from the jury panel.

¶ 16 In support of his argument here, Marble relies on Freshment and State v. Burkhart, 2004 MT 372, 325 Mont. 27, 103 P.3d 1037, and contends that responses the jurors in those cases gave during voir dire — which required they be excused — are the same types of responses given by Stoner in this case. We disagree.

¶ 17 In Freshment, the defendant appealed the District Court's failure to excuse two potential jurors for cause. The defendant was charged with sexual intercourse without consent and he asserted the defense of consent by the victim based on his reasonable belief that the victim was over 16 years of age. Freshment, ¶ 8. During voir dire, two jurors initially stated they would not acquit the defendant even if it was proven he had a reasonable belief the victim was over the age of 16. In other words, the jurors stated they would not be able to follow the law on that issue. Upon questioning by the prosecution, both jurors eventually conceded they could follow the law as instructed by the trial court. Freshment, ¶¶ 8 and 9.

¶ 18 On appeal, we held that the trial court abused its discretion in failing to excuse the jurors for cause because both jurors stated an actual bias...