State v. Tapson, 00-010.

• Decision Date: 20 December 2001
• Docket Number: No. 00-010.,00-010.
• Citation: 2001 MT 292,307 Mont. 428,41 P.3d 305
• Parties: STATE of Montana, Plaintiff and Respondent, v. Floyd TAPSON, Defendant and Appellant.
• Court: Montana Supreme Court

41 P.3d 305

2001 MT 292

307 Mont. 428

STATE of Montana, Plaintiff and Respondent, v. Floyd TAPSON, Defendant and Appellant.

No. 00-010.

Supreme Court of Montana.

Argued September 10, 2001.

Submitted September 18, 2001.

Decided December 20, 2001.

Rehearing Denied February 26, 2002.

Chad Wright (argued), Appellate Defender, Helena, MT, For Appellant.

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

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Floyd Tapson was convicted by a jury in the Thirteenth Judicial District Court, Yellowstone County, of attempted deliberate homicide and sentenced to life in prison. He appeals his judgment and conviction. We reverse and remand for further proceedings consistent with this opinion.

¶ 2 Tapson raises two issues on appeal which we have restated for clarity as follows:

¶ 3 1. Whether defense counsel rendered deficient performance during voir dire for not questioning or challenging two prospective jurors whose daughters had been violently raped and whether Tapson was prejudiced because these prospective jurors served on the final jury panel.

¶ 4 2. Whether the District Court committed reversible error by entering the jury room alone, without counsel or Tapson present, and without a waiver by Tapson of his constitutional right to be present.

¶ 5 Because we conclude that Issue 2 is dispositive, we do not address Issue 1.

Factual and Procedural Background

¶ 6 On October 14, 1998, the State charged Tapson with three felony counts: sexual intercourse without consent, in violation of § 45-5-503, MCA; aggravated kidnaping, in violation of § 45-5-303(1)(c), MCA; and attempted deliberate homicide, in violation of §§ 45-4-103 and 45-5-102, MCA. The charges stemmed from an incident that occurred on October 8, 1998, involving Josephine Red Star, a developmentally disabled woman.

¶ 7 Red Star alleged that Tapson duped her into coming to his house where he threatened her with a gun, handcuffed her, and locked her in his basement for seven or eight hours. Red Star knew Tapson because he worked at the group home where her former boyfriend lived. Red Star further alleged that when Tapson finally released her from the basement, he took her to his bedroom where he sexually assaulted her. He then drove her to a secluded area outside of town where he shot her twice—striking her once in the cheek and once in the hand—before she managed to get away and run to a neighboring house for help.

¶ 8 When law enforcement officers questioned Tapson, he told them that he had not seen Red Star since late August and that he had been at work when the incident allegedly occurred. He later changed his story and alleged that Red Star had arrived at his house on her own, that they ate pizza and drank beer while watching movies, and that they had consensual sex. He also stated that, afterwards, they went target shooting at Red Star's request and that she was shot either by accident or that she shot herself.

¶ 9 The case proceeded to trial on March 26, 1999. Since the case had received considerable pre-trial publicity, the State and defense counsel agreed to an extended jury selection process including individual voir dire. On the second day of voir dire, several prospective jurors revealed that they had either close friends or family members who had been victims of crimes similar to those charged against Tapson. One prospective juror had a friend that was kidnaped, raped and murdered. Two other prospective jurors revealed that they each had a daughter who was the victim of a violent rape. Defense counsel did not challenge these prospective jurors for cause, nor did he use any peremptory challenges to remove these individuals. Both of the prospective jurors whose daughters were raped ended up serving on the final jury panel.

¶ 10 On April 8, 1999, the second full day of jury deliberations, the District Court met with counsel on the record to notify them that the jury had a verdict on one of the three counts but was unable to reach a verdict on the other two counts. The court recessed until Tapson could be present. Neither the court nor the parties knew which charge the jury had decided or how it had decided that charge.

¶ 11 Once Tapson was present, the State suggested substituting the existing verdict form that listed all three charges, with six verdict forms—one "guilty" form and one "not guilty" form for each of the three charges. The State maintained that substituting verdict forms would avoid the problem of the jury switching its current verdict on the one charge for some sort of last minute compromise. The State also suggested that the Judge take the forms into the jury room rather than handling the matter in open court. Since defense counsel voiced no opposition to these suggestions, the Judge took the forms into the jury room. Neither counsel nor Tapson were present. The Judge did not return to the courtroom until eleven minutes later. There was no record of whether the Judge spent the entire eleven minutes with the jury or only a portion of that time. Nor was any record made of what the Judge told the jury, whether the jury had any questions, or whether the Judge gave any responses.

¶ 12 The jury returned a verdict of "guilty" on the charge of attempted deliberate homicide. The jury foreperson stated that the jury was "unanimous in the opinion that we could not reach a verdict in the others." The court then dismissed the jury and set a time for sentencing. On August 10, 1999, the court sentenced Tapson to life imprisonment. Tapson appeals his conviction and sentence.

Discussion

¶ 13 Whether the District Court committed reversible error by entering the jury room alone, without counsel or Tapson present, and without a waiver by Tapson of his constitutional right to be present.

¶ 14 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. Illinois v. Allen (1970), 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353. "The defendant's right to be present at all proceedings ... which may take his life or liberty is designed to safeguard the public's interest in a fair and orderly judicial system." Sturgis v. Goldsmith (9th Cir.1986), 796 F.2d 1103, 1109.

¶ 15 In Montana, the right of a criminal defendant to be present at his trial is expressly guaranteed by the Montana Constitution: "In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel...." Art. II, Sec. 24, Mont. Const. Since the right to appear and defend in person is found within Montana's Declaration of Rights, it is a fundamental right. A right is "fundamental" under Montana's Constitution if the right is either found in the Declaration of Rights or is a right "without which other constitutionally guaranteed rights would have little meaning." Butte Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309, 1311.

¶ 16 This Court recognized as early as 1922, when interpreting an identical provision of the 1889 Montana Constitution, that "the defendant must be present throughout the entire trial." State v. Reed (1922), 65 Mont. 51, 56, 210 P. 756, 757 (emphasis added). The Court stated in Reed:

No principle of law, relating to criminal procedure, is better settled than that, in felony cases, nothing should be done in the absence of the prisoner. It is his unquestioned right "to be confronted with his accusers and witnesses." He has the legal right to be present when the jury are hearing his case, and at all times during the proceeding of the trial, when anything is done which in any manner affects his right....

Reed, 65 Mont. 51, 58, 210 P. 756, 758 (citation omitted).

¶ 17 There are no other reported cases in Montana where a judge entered the jury room alone and instructed the jury off the record. While we do not believe that the Judge in this case intended to influence the jury in any way, other jurisdictions have made it clear that to insure that jury deliberations remain free of any extraneous influences, the jury room door must remain closed to judges. See United States v. Smith (7th Cir.1994), 31 F.3d 469, 471 ("[T]he unusual practice of a judge entering the jury room to speak privately with jurors is almost certain to run afoul of a defendant's right to be present during trial proceedings."); Commonwealth v. Patry (2000), 48 Mass.App.Ct. 470, 722 N.E.2d 979, 983 ("[J]udges should not enter jury rooms at any time to conduct the court's business, even with the parties' consent or at the invitation of the jury."); Graves v. State (Ala.Crim.App.1979), 377 So.2d 1129, 1130 ("No communication, whatever, should take place between the judge and the jury after the cause has been submitted to them, unless in open court with all the parties and their attorneys present. The sanctity of the jury room must remain inviolate, and it is the trial judge's responsibility to maintain that sanctity. Anything less is an abdication of his judicial responsibility."); Graham v. State (App.1942), 73 Okla.Crim. 337, 121 P.2d 308, 311 ("To permit various persons, under one pretext or another, to be with the jury in its deliberations is to open the door to grave abuse and to strike directly at the heart of the system."); State v. Wroth (1896), 15 Wash. 621, 47 P. 106, 107, overruled in part by State v. Caliguri (1983), 99 Wash.2d 501, 664 P.2d 466 ("In the discharge of his official duty, the place for the judge is on the bench. As to him, the law has closed the portals of the jury room, and he may not enter.")

¶ 18 In United States v. United States Gypsum Co. (1978), 438 U.S. 422, 460, 98 S.Ct. 2864, 2885, 57 L.Ed.2d 854, wherein counsel agreed to let the judge meet privately with one juror, the United States Supreme Court...