State v. Robinson

• Decision Date: 05 February 2008
• Docket Number: No. DA 06-0283.,DA 06-0283.
• Citation: 177 P.3d 488,341 Mont. 300,2008 MT 34
• Parties: STATE of Montana, Plaintiff and Appellee, v. Frank Leroy ROBINSON, Defendant and Appellant.
• Court: Montana Supreme Court

177 P.3d 488

2008 MT 34

341 Mont. 300

STATE of Montana, Plaintiff and Appellee, v.Frank Leroy ROBINSON, Defendant and Appellant.

No. DA 06-0283.

Supreme Court of Montana.

Submitted on Briefs March 7, 2007.

Decided February 5, 2008.

For Appellant: Mathew M. Stevenson, Attorney at Law, Missoula, Montana.

For Appellee: Hon. Mike McGrath, Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, George H. Corn, Ravalli County Attorney; T. Geoffrey Mahar, Deputy County Attorney, Hamilton, Montana.

Justice JOHN WARNERdelivered the Opinion of the Court.

¶ 1Frank Robinson appeals his conviction in the Twenty-First Judicial District Court, Ravalli County, of two counts of felony assault, failure to register as a sexual offender, and resisting arrest.

¶ 2We restate and address the issues on appeal as follows: Issue 1: Did the District Court abuse its discretion when it denied Robinson's challenge for cause to a prospective juror?Issue 2: Did the District Court impose an illegal sentence on Robinson when it imposed sentences both for his offenses and because he is a persistent felony offender?

¶ 3The State charged Robinson with three felony counts of assault on a peace officer, in violation of § 45-5-210, MCA, one felony count of failure to register as a sexual offender, in violation of § 46-23-504, MCA, and one misdemeanor count of resisting arrest, in violation of § 45-7-301, MCA.The charges arose from an altercation that occurred when Ravalli County Sheriffs Deputies served Robinson with a California arrest warrant.The State timely filed notice of its intent to seek to have Robinson sentenced as a persistent felony offender.

¶ 4 Trial commenced on July 18, 2005.After the prosecutor had completed his voir dire, during which he explained to the venire panel that Robinson was presumed innocent until proven guilty, defense counsel asked the entire panel whether "they kind of think he's probably guilty since he's sitting here?"The following colloquy ensued:

DEFENSE COUNSEL: Does anyone differ from that attitude; that they kind of think he's probably guilty since he's sitting here?Anybody?Anybody want to be brave enough to weigh in on that?

PROSPECTIVE JUROR: I would assume.

DEFENSE COUNSEL: I'm sorry?

PROSPECTIVE JUROR: Well, it would look that way.

DEFENSE COUNSEL: It appears to you he's probably guilty because he's sitting there.

PROSPECTIVE JUROR: Yeah.

DEFENSE COUNSEL: Are you in agreement with the concept of innocent until proven guilty?

PROSPECTIVE JUROR: Well, yes, I am.

DEFENSE COUNSEL: Are you assuming he's innocent now or are you not?

PROSPECTIVE JUROR: Well, it would seem rather strange to assemble all these people if there was not some reason for him to be sitting there.

DEFENSE COUNSEL: So in that sense, are you sort of assuming he's guilty before you hear the evidence?

PROSPECTIVE JUROR: Yeah.

DEFENSE COUNSEL: Okay.Do you think it's going to be real hard for you to be impartial?

PROSPECTIVE JUROR: Well, no, not when I hear both sides of the story, but you know, that's what trials are about is bringing in someone that they pretty well know is guilty of something, and then having a couple lawyers battle back and forth with words for a couple, two or three days, trying to decide—or trying to convince the jury of their point of view.

DEFENSE COUNSEL: Fair enough, and I—

PROSPECTIVE JUROR: You know, you've got two sides here, he can say his side and the law enforcement can say their side and we can decide.

DEFENSE COUNSEL: Fair enough.And I don't want to pick on you, because I respect your opinion, but do you think maybe you're not fully incorporating the idea of innocent until proven guilty in this case?

PROSPECTIVE JUROR: Well, that could be.

DEFENSE COUNSEL: Do you feel maybe in some respect you are presuming he's guilty?

PROSPECTIVE JUROR: Yeah.

DEFENSE COUNSEL: Do you think this maybe isn't the best trial for you then?

PROSPECTIVE JUROR: Well, no, because I sat through another one with the same attitude, but—

DEFENSE COUNSEL: Let's put that one aside.

PROSPECTIVE JUROR: Okay.

DEFENSE COUNSEL: Since you've already—and I do appreciate your candor.You've already told the Court that you're really not going into this case with an attitude of impartiality and you're not really going in with the idea of innocent until proven guilty, that maybe—maybe it's not entirely fair for Mr. Robinson to have you on the jury?

PROSPECTIVE.JUROR: Well, that could be, but I kind of wonder how many other people just figure he's guilty because he's here, too.

DEFENSE COUNSEL: Well, that may be, but you are the one who has been candid enough to say so.

PROSPECTIVE JUROR: Right.

DEFENSE COUNSEL: On those grounds, I'd ask for [Ms. P] to be excused.

THE COURT: Cross?

PROSECUTOR: I've been through this now with several individuals, and I know that part of the difficulty, I think.You've got some suspicions because of what you heard so far.There's no getting around the charges here, failure to register as a sexual offender and that sort of thing.

PROSPECTIVE JUROR: No, that's not really what's—well, the assault thing, I mean, obviously, if somebody was beat up on, they're going to be upset about it and they're going to bring suit.

PROSECUTOR: I can fairly tell you that there's no other suits that are—

PROSPECTIVE JUROR: Involved.Yeah, I realize that now.

PROSECUTOR: The [sic] there's nothing hidden here.The only trial right now or lawsuit is the one that you're presently involved in.

PROSPECTIVE JUROR: I understand that.

PROSECUTOR: The reason I'm concerned, [Ms. P], because of the difficulty of the charges, as I mentioned to [Ms. J] before she was excused—

PROSPECTIVE JUROR: No, that's not what's bothering me.It's just the fact that the assault charges, okay, somebody was hurt and upset about it so they got him here on trial, because they were hit or slugged or threatened or something.

PROSECUTOR: The real questions that I think that you're going to have to decide in this trial if you're on the jury, [Ms. P], is whether or not police officers were assaulted by Mr. Robinson.He's going to defend that, Mr. Stevenson is going to defend that vigorously.

PROSPECTIVE JUROR: Right, I realize that.

PROSECUTOR: All we're asking is, despite your suspicions, if you please, do you think that you are willing to listen to all of the evidence, both sides—

PROSPECTIVE JUROR: Yes, I can do that.

PROSECUTOR:—before you confirm your suspicion that Mr. Robinson may be guilty.

PROSPECTIVE JUROR: I can do that.

PROSECUTOR: You understand that he's not guilty just because he's sitting there.

PROSPECTIVE JUROR: No, but I'm not sitting there.

* * * *

THE COURT: Now, [Ms. P], in your mind, do you understand the difference between probable cause and beyond a reasonable doubt?

PROSPECTIVE JUROR: Yes.

THE COURT: And so you understand that a person could be put on trial merely on a finding that there's probable cause that they may have committed an offense?

PROSPECTIVE JUROR: Yes.

THE COURT: And that's basically a reasonable suspicion.

PROSPECTIVE JUROR: (Witness nods head.)

THE COURT: And then it's up to the jury to decide if the State has proven beyond a reasonable doubt that they actually did commit the offense.

PROSPECTIVE JUROR: Yes.

THE COURT: And you acknowledge that there are people put on trial who are found not guilty by juries?

PROSPECTIVE JUROR: Oh, yes.

THE COURT: And there are people that are either accused falsely or accused of something in excess of what they actually did.

PROSPECTIVE JUROR: Yes, unfortunately.

THE COURT: So you're not presuming that he is guilty?

PROSPECTIVE JUROR: No, but there's reasonable cause.

THE COURT: Well, probable cause.

PROSPECTIVE JUROR: Probable cause.

THE COURT: But you're prepared to hold [the prosecutor] to his burden of proof to prove beyond a reasonable doubt that he committed what he's charged with?

PROSPECTIVE JUROR: Yes, sir.

THE COURT: And if [the prosecutor] fails to prove beyond a reasonable doubt that he committed one or more of these offenses, then you would be willing to return a not guilty verdict on those charges?

PROSPECTIVE JUROR: Right.

THE COURT: And you don't hold any personal bias against Mr. Robinson.

PROSPECTIVE JUROR: No, I don't know the man.

THE COURT: And you will follow the jury instructions as best you can?

PROSPECTIVE JUROR: Yes.

¶ 5 Robinson subsequently used a peremptory challenge to remove the juror and also exercised all of his peremptory challenges.The District Court dismissed one count of assault on a peace officer at the conclusion of the State's case.The jury found Robinson guilty of the remaining charges.

¶ 6The District Court held a sentencing hearing on September 21, 2005.The District Court concluded that Robinson was a persistent felony offender.Robinson has not challenged that designation.The District Court sentenced Robinson to ten years in prison on Count One, assault on a peace officer, with an additional, consecutive, ten year prison term as a persistent felony offender; ten years in prison on Count Two, assault on a peace officer, with an additional, consecutive ten year prison term as a persistent felony offender.The sentences on Counts One and Two were ordered to run concurrently with each other, resulting in a total sentence of twenty years for assault on a peace officer.Robinson was sentenced to five years in prison for failure to register as a sexual offender, with an additional five year sentence as a persistent felony offender.These latter two sentences were ordered to run consecutive to each other and consecutive to the twenty years in prison imposed for assault on a peace officer.The District Court also sentenced Robinson to six months in jail for resisting arrest, to run concurrently with the other sentences.These sentences resulted in a judgment requiring Robinson to serve a total of thirty years in prison.Robinson now...