State v. Ibarra-Salas , 338 Mont. 191 ( 2007 )

No. 05-600
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 173____________________________________
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROGELIO IBARRA-SALAS,
Defendant and Appellant.
____________________________________
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin, Cause No. DC 04-183,
The Honorable Holly Brown, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Christopher K. Williams, Attorney at Law, Bozeman, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant
Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney; Todd Whipple, Deputy County
Attorney, Bozeman, Montana
____________________________________
Submitted on Briefs: September 20, 2006
Decided: July 17, 2007
Filed:
_____________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Rogelio Ibarra-Salas (Ibarra-Salas) appeals from an order of the Eighteenth
Judicial District Court, Gallatin County (District Court), denying his motion for a new
trial. We affirm.
¶2 We restate and address the following issues on appeal:
¶3 1. Did the District Court err in not granting Ibarra-Salas’ motion to continue the
trial?
¶4 2. Was Ibarra-Salas’ trial counsel ineffective because he did not question
prospective jurors concerning ethnic bias or prejudice?
¶5 The State filed an Information charging Ibarra-Salas with criminal distribution of
dangerous drugs, a felony, in violation of § 45-9-101, MCA. The State alleged that on
November 12, 2003, Ibarra-Salas and a co-defendant, Dustin White (White), sold
methamphetamine to White’s sister, who was a confidential informant.
¶6 The day before trial, trial counsel for Ibarra-Salas filed a motion for sanctions --
either in the form of dismissal of the charge or a continuance of the trial. He claimed that
despite numerous requests, the State failed to make two witnesses available for
interviews.
¶7 The District Court held an immediate hearing on the motion. After hearing from
counsel and other witnesses concerning the conduct of discovery, the District Court
determined the witness interviews did not occur because of scheduling conflicts and
miscommunication. The District Court found that the prosecution did not attempt to
cause delay by avoiding meetings or hindering the disclosure of information and
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therefore denied Ibarra-Salas’ motion to dismiss the charge as a sanction.
¶8 Ibarra-Salas’ motion for continuance was based on his counsel’s alleged need to
interview the two previously unavailable witnesses and to prepare for trial. After making
sure the witnesses were available to be interviewed that day, the District Court denied
Ibarra-Salas’ motion for a continuance.
¶9 In ruling on the motion, the District Court stated:
In regard to the continuance, I am also going to deny the continuance. This
case has been set for trial for some time. And while I appreciate that you
(defense counsel) have been very diligent in pursuing your discovery
efforts, because we have had the numbers of hearings and the discovery
requests, I am going a bit on faith that the information that you will receive
from the two witnesses that you will presumably have available to you by
this afternoon, will be cumulative or at least consistent with the information
that you’ve previously been provided. If that does not turn out to be the
case, then I would expect that you can document that, either by motion or
through cross-examination testimony, through the trial.
The trial is currently scheduled for two days. I will be as flexible as we
need to be to allow you extra time to prepare for the examination of either
of those witnesses should you need extra time. And we will accommodate
whatever other arrangements the Court can make to allow you to proceed
with the case.
¶10 On the first day of trial, counsel for Ibarra-Salas renewed his request for a
continuance based on insufficient time to prepare to conduct jury voir dire. The District
Court stated it would stand by the rationale of its previous ruling and denied the motion.
¶11 Ibarra-Salas is of Hispanic descent. He had the assistance of a Spanish-English
interpreter during the trial. During voir dire, counsel for both Ibarra-Salas and the State
questioned the jury panel concerning its ability to be fair and impartial jurors in a drug
trial. Neither party questioned prospective jurors about ethnic or racial bias during voir
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dire. Counsel for Ibarra-Salas was successful in challenging two prospective jurors for
cause.
¶12 The jury found Ibarra-Salas guilty of Criminal Distribution of Dangerous Drugs in
violation of § 45-9-101, MCA. Ibarra-Salas filed a motion for a new trial, which the
District Court denied as untimely. After the entry of judgment, Ibarra-Salas appealed.
¶13 The decision to grant or deny a motion for a continuance is within the discretion of
the district court. State v. DeMary, 2003 MT 307, ¶ 24, 318 Mont. 200, ¶ 24, 79 P.3d
817, ¶ 24; § 46-13-202(3), MCA. This Court will not overturn a district court’s decision
to deny a motion for continuance unless the district court abused its discretion and the
ruling prejudices the defendant. DeMary, ¶ 24. Ibarra-Salas argues the District Court
abused its discretion when it denied his motions for a continuance.
¶14 Ibarra-Salas cites to nothing in the record to support his contention that his counsel
was not prepared to conduct jury voir dire, or that he was unable to present any evidence
or was unable to effectively cross-examine a witness because he was unprepared. Also,
even though the District Court said that it would be inclined to grant a motion for a delay
during the trial if Ibarra-Salas’ counsel needed more time, Ibarra-Salas did not move the
District Court for additional time. We will not reverse an order of the District Court
denying a motion for a continuance when a party fails to cite a portion of the record
which indicates an abuse of discretion. M. R. App. P. 12(1)(f).
¶15 Ibarra-Salas also claims that the District Court erred because it did not recess the
trial and conduct a separate hearing to determine if his lawyer was unprepared. He
attempts to analogize his counsel’s request for a continuance to a situation in which a
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defendant claims ineffective assistance of counsel and requests new counsel. It is true
that when a defendant presents a “seemingly substantial complaint” about counsel and
requests a different lawyer, the Court should hold a hearing on the request for substitution
of counsel. City of Billings v. Smith, 281 Mont. 133, 136, 932 P.2d 1058, 1060 (1997).
However, Ibarra-Salas made no request for substitution of his trial counsel and thus no
hearing was necessary.
¶16 Ibarra-Salas then argues that because he is a Hispanic person, and thus a member
of a minority group, his counsel’s failure to question prospective jurors about ethnic or
racial bias denied him both his constitutional right to an impartial jury and to the effective
assistance of counsel.
¶17 A criminal defendant in a state court is guaranteed an impartial jury by the Sixth
Amendment to the United States Constitution, as applicable to the States through the
Fourteenth Amendment. A defendant is also guaranteed an impartial jury by Article II,
Section 24 of the Montana Constitution. State v. LaMere, 2000 MT 45, ¶ 35, 298 Mont.
358, ¶ 35, 2 P.3d 204, ¶ 35; Ristaino v. Ross, 424 U.S. 589, 595 n. 6, 96 S. Ct. 1017, 1021
n. 6 (1976) (citations omitted). Voir dire in a criminal proceeding requires adequate
questioning to assure counsel’s ability to challenge a prospective juror for cause. State v.
LaMere, 2005 MT 118, ¶ 15, 327 Mont. 115, ¶ 15, 112 P.3d 1005, ¶ 15; State v.
Herrman, 2003 MT 149, ¶ 23, 316 Mont. 198, ¶ 23, 70 P.3d 738, ¶ 23.
¶18 In the federal courts, there is no constitutional presumption of juror bias for or
against members of any particular racial or ethnic group. See Rosales-Lopez v. United
States, 451 U.S. 182, 191, 101 S. Ct. 1629, 1636 (1981). Nor has this Court ever
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established such a presumption. We agree with the United States Supreme Court that in
the heterogeneous society of this country, policy and constitutional considerations
militate against a per se rule that justice “in a court of law may turn upon the
pigmentation of skin, the accident of birth, or the choice of religion.” Ristaino, 424 U.S.
at 596 n. 8, 96 S. Ct. at 1021 n. 8.
¶19 In the federal court system, unlike Montana, judges rather than attorneys generally
conduct voir dire examination. Fed. R. Civ. P. 47(a); Fed. R. Crim. P. 24(a); § 46-16-
114, MCA. Federal trial courts must accede to a criminal defendant’s request that
prospective jurors be questioned about racial or ethnic bias only when (1) racial issues are
inextricably bound up with the conduct of the trial and (2) there are substantial
indications of the likelihood of racial or ethnic prejudice affecting the jurors in the
particular case. Ristaino, 424 U.S. at 596-97, 96 S. Ct. at 1021-22 (citing Ham v. South
Carolina, 409 U.S. 524, 93 S. Ct. 848 (1973)). The “critical factor” is whether racial
issues are inextricably bound up with the conduct of the trial. Rosales-Lopez, 451 U.S. at
189, 101 S. Ct. at 1635 (1981); See Ham, 409 U.S. at 526, 93 S. Ct. at 850. These
considerations comport with Article II, Section 24, of the Montana Constitution, are
understandable and we shall utilize them in making the determination whether Ibarra-
Salas was denied a fair trial by an impartial jury.
¶20 In the present case, there is no indication that any ethnic or racial issues were
intertwined with the charged drug offense, that the alleged offense was racially
motivated, or that an ethnic issue was in any way connected with the trial.
¶21 Also, Ibarra-Salas’ defense did not introduce any ethnic or racial issue into the
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trial. Ibarra-Salas’ counsel argued that his client was merely present in White’s
apartment during the methamphetamine sale, that he had no involvement with the sale
and that the drug deal was between White and White’s sister. The defense did not relate
to any ethnic or racial issue, and was thus not likely to intensify any bias or prejudice that
individual members of the jury might harbor. See Ristaino, 424 U.S. at 596-97, 96 S. Ct.
at 1021.
¶22 There is no indication in the record of ethnic or racial bias on the part of a
witness, an attorney, the trial judge, a member of the Court staff or any member of the
venire panel. Ibarra-Salas was not denied his right to an impartial jury.
¶23 As there is no record of any ethnic or racial issue in the case, we conclude that
defense counsel’s performance did not fall below the range of competence required of
attorneys in criminal cases simply because he did not question prospective jurors about
possible ethnic bias or prejudice. Thus, Ibarra-Salas was not denied the effective
assistance of counsel. See LaMere, ¶ 8; Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052 (1984).
¶24 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
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