State v. Northcutt

• Decision Date: 08 September 2015
• Docket Number: No. DA 14–0050.,DA 14–0050.
• Citation: 2015 MT 267,358 P.3d 179,381 Mont. 81
• Parties: STATE of Montana, Plaintiff and Appellee, v. Peter NORTHCUTT, Defendant and Appellant.
• Court: Montana Supreme Court

381 Mont. 81

358 P.3d 179

2015 MT 267

STATE of Montana, Plaintiff and Appellee

v.Peter NORTHCUTT, Defendant and Appellant.

No. DA 14–0050.

Supreme Court of Montana.

Submitted on Briefs July 22, 2015.

Decided Sept. 8, 2015.

For Appellant: Wade Zolynski, Chief Appellate Defender, Gregory Hood, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General; Helena, Montana.

Alex R. Nixon, Carbon County Attorney, Red Lodge, Montana.

Opinion

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 A Carbon County jury convicted Peter Northcutt of three counts of assault on a peace officer. Northcutt moved for a new trial based on improper contact between the judge and the jury while the jury was deliberating. The Twenty–Second Judicial District Court denied the motion and Northcutt appeals. We examine whether the judge committed reversible error by asking the jury about the status of its deliberations without Northcutt and the public present. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 The State charged Northcutt with three counts of assault on a peace officer under § 45–5–210, MCA, and one count of aggravated animal cruelty under § 45–8–217, MCA. Northcutt's jury trial commenced on April 8, 2013. On the third day of trial, after the presentation of all evidence and argument, the jury began deliberations at approximately 4:30 in the afternoon. At around 5:30 p.m., the jury sent a note to the court asking to see one of the demonstrative exhibits, which the court and the parties agreed to supply. The jury sent a second note sometime around 7:30 p.m. asking for a copy of the transcript from the trial, which the court answered with a note stating that it could not oblige the request. At approximately 8:30 that night, the jury reached a verdict, finding Northcutt guilty of all three counts of assault on a peace officer and not guilty of aggravated animal cruelty.

¶ 3 At some point between when the jury asked its first written question and when it reached its verdict, presiding District Judge Loren Tucker approached the jury room. Judge Tucker inquired of the jurors whether they would reach a verdict that night, and the jurors nodded in affirmation. Neither Northcutt, his counsel, the court reporter, nor the prosecutor was present when this interaction occurred.

¶ 4 After the jury announced its verdict, Northcutt timely moved for a new trial under § 46–16–702, MCA, based on Judge Tucker's contact with the jury. Northcutt submitted affidavits from two jurors recounting the encounter with Judge Tucker. The State opposed the motion, and responded with affidavits from the two bailiffs who were situated outside the jury room door during the encounter. All affidavits recalled that Judge Tucker approached the jury room while the jury was deliberating, briefly addressed the jury, and left. The bailiffs did not recall the specifics of what Judge Tucker said, but the jurors recounted that Judge Tucker asked how the jury was coming or whether it would finish that night, and the jurors nodded in assent.

The bailiffs said that Judge Tucker never left the doorway; one of the jurors said that Judge Tucker entered the jury room. In his reply brief on the motion, Northcutt attached a second affidavit from one of the jurors, which stated that the juror felt that the interaction was an instruction to the jury “to complete our deliberations that evening.” The District Court held a hearing on the matter in July 2013. The court's clerk testified regarding Northcutt's counsel's absence from the courtroom during the jury's deliberations. The court denied Northcutt's motion, and he appeals.

STANDARD OF REVIEW

¶ 5 We exercise plenary review over claimed violations of a defendant's right to be present at a critical stage in the proceedings and right to a public trial. State v. Charlie, 2010 MT 195, ¶ 21, 357 Mont. 355, 239 P.3d 934.

DISCUSSION

¶ 6 The confrontation clause of the Sixth Amendment and the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution provide a criminal defendant the right to be present during criminal proceedings. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (per curiam). Article II, Section 24 of the Montana Constitution does the same. Mont. Const. art. II, § 24 (“In all criminal prosecutions the accused shall have the right to appear and defend in person....”). A reversible violation of this right occurs when (1) the defendant is excluded from a critical stage of his prosecution, and (2) prejudice results. United States v. Collins, 665 F.3d 454, 459–60 (2d Cir.2012) ; State v. Godfrey, 2009 MT 60, ¶ 25, 349 Mont. 335, 203 P.3d 834.

¶ 7 Article II, Section 24 of the Montana Constitution and the Sixth Amendment of the United States Constitution provide a criminal defendant the right to a public trial. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial....”); Mont. Const. art. II, § 24 (“In all criminal prosecutions the accused shall have the right to ... a speedy public trial....”). “The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness.” Press–Enterprise Co. v. Super. Court of Cal., 478 U.S. 1, 7, 106 S.Ct. 2735, 2739, 92 L.Ed.2d 1 (1986) (Press–Enterprise II ). “The guarantee [of a public trial] has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”People v. Webb, 267 Ill.App.3d 954, 205 Ill.Dec. 6, 642 N.E.2d 871, 874 (1994) (alteration in original and citation omitted).

¶ 8 In Montana, the public's right to access court proceedings is protected by Article II, Section 16, which guarantees that “[c]ourts of justice shall be open to every person.” Openness of court proceedings “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” Press–Enterprise Co. v. Super. Court of Cal., 464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629 (1984) (Press–Enterprise I ). Violation of the right to a public trial may be structural error. Waller v. Georgia, 467 U.S. 39, 49 n. 9, 104 S.Ct. 2210, 2217 n. 9, 81 L.Ed.2d 31 (1984) ; State v. Matt, 2008 MT 444, ¶ 31, 347 Mont. 530, 199 P.3d 244, overruled on other grounds by Charlie, ¶ 45. The U.S. Supreme Court has made clear that “[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press–Enterprise I, 464 U.S. at 510, 104 S.Ct. at 824.

¶ 9 Not every momentary closure to the public, however, will implicate or violate the right to a public trial. See United States v. Ivester, 316 F.3d 955, 960 (9th Cir.2003) (holding that “routine jury administrative matters that have no bearing on [the defendant]'s ultimate guilt or innocence” are too trivial to implicate the right). See also Webb, 205 Ill.Dec. 6, 642 N.E.2d at 875 (commenting that “a few minutes of discussion between the judge and the attorneys” was “de minimis”).

¶ 10 Northcutt relies on State v. Tapson, 2001 MT 292, 307 Mont. 428, 41 P.3d 305, to argue that his right to presence and right to a public trial were violated by Judge Tucker's interaction with the jurors in the jury room. In Tapson, we overturned a verdict after a district judge, without the defendant or defense counsel present, entered the jury room while the jury was deliberating, and no record existed of what transpired. Tapson, ¶ 39. Citing the defendant's rights to presence and a public trial, we adopted “the rule that absent a contemporaneous, personal, knowing, voluntary, intelligent and on-the-record waiver by the defendant, if a judge enters the jury room while the jury is present and without counsel, the defendant, and the court reporter, reversal will be automatic.” Tapson, ¶ 32.

¶ 11 Northcutt argues that Tapson 's “automatic reversal” language compels a new trial in this case. But Tapson was based on the lack of a record of what transpired in the jury room, making “it impossible to say that, beyond a reasonable doubt, there was no prejudice to the defendant, and therefore [the interaction was] harmless error.”

Tapson, ¶ 31 (quoting Arizona v. Hilliard, 133 Ariz. 364, 651 P.2d 892, 897 (Ariz.Ct.App.1982) ). In the years since, we have repeatedly identified the lack of a record as a determinative factor in Tapson. State v. Wilson, 2013 MT 70, ¶ 27, 369 Mont. 282, 297 P.3d 1208 (contrasting the case before it with Tapson, in which “[t]he lack of a record prevented this Court from determining that no possibility of prejudice existed”); State v. Riggs, 2005 MT 124, ¶ 53, 327 Mont. 196, 113 P.3d 281 (“In Tapson, the judge's entry alone into the jury room could have prejudiced the defendant, and the deficit in the record made it impossible to say beyond a reasonable doubt that it did not.”); State v. Kennedy, 2004 MT 53, ¶¶ 33–34, 320 Mont. 161, 85 P.3d 1279 (concluding that a judge's interaction with a juror was preserved in a record and was accordingly susceptible to review for prejudice). We recently reaffirmed that right of presence claims are subject to waiver and harmless error. State v. Reim, 2014 MT 108, ¶¶ 36–40, 374 Mont. 487, 323 P.3d 880.

¶ 12 In this case, the court made a record of what transpired in the jury room between Judge Tucker and the jurors. Four witnesses—two jurors and two bailiffs—signed affidavits and the District Court held a hearing in which it took live testimony on the matter. All witnesses were in substantial agreement about what transpired: Judge Tucker approached the jury room, inquired whether...