State v. C. Russell

02/13/2018
DA 16-0362
Case Number: DA 16-0362
IN THE SUPREME COURT OF THE STATE OF MONTANA
2018 MT 26
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CLAYTON RUSSELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DC 15-35A
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Ryan Aikin, Assistant
Attorney General, Helena, Montana
Martin D. Lambert, Gallatin County Attorney, Eric N. Kitzmiller, Chief
Deputy County Attorney, Bozeman, Montana
Submitted on Briefs: November 15, 2017
Decided: February 13, 2018
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Defendant Clayton Russell (“Russell”) appeals from the jury verdict and sentence
of the Eighteenth Judicial District, Gallatin County, for driving under the influence of
alcohol (DUI), fourth or subsequent offense, a felony, in violation of § 61-8-401, MCA.
¶2 We address the following issue on appeal:
Whether the District Court erred by denying Russell’s for-cause challenge to a
prospective juror.
¶3 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶4 On February 3, 2015, the State charged Russell with felony DUI.1 During voir dire,
Russell’s defense counsel, John Hud, questioned jurors individually. One prospective
juror, Kaylie Utter (“Utter”), stated that she had “a couple of experiences that might
influence [her] opinions” in this case. Utter explained that a close friend died in a drunk
driving accident, and that her son-in-law was recently involved in a drunk driving accident.
While Utter could not definitively answer whether those experiences would impact her
ability to be fair or impartial, she admitted that it “definitely affects [her] opinions.” When
asked if she was more inclined to believe a police officer’s testimony and find Russell
guilty, Utter stated, “[t]hat could be; I can’t say for sure but it’s possible.” In response to
follow-up questions regarding her ability to neutrally evaluate potential evidence, Utter
answered, “yes” when the prosecutor asked whether her life experiences would cause her
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Russell was also charged with two misdemeanor traffic offenses; he pled guilty to these offenses
on February 25, 2016, the first day of his DUI trial.
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to evaluate the evidence in a certain way. As to whether Russell’s refusal to submit to a
breath test in and of itself results in an assumption of guilt, Utter stated that she might infer
guilt from a defendant’s refusal to submit to a breath test. Russell challenged Utter for
cause, and the District Court excused Utter “based on the experiences that she’s had
personally and the indication that those experiences would maybe influence her decision.”
¶5 Upon Utter being excused, the District Court called Prospective Juror Donald
Platisha (“Platisha”), who immediately stated that he “might be in the same position as the
last juror.” In a follow-up question, Platisha explained that his sister was injured, and his
brother-in-law killed, by a drunk driver. When pressed directly as to whether he thought
his experiences would make it hard for him to be a fair in a DUI case, Platisha stated, “I’m
like [Utter]. I don’t know.” Defense Counsel Hud followed up:
Defense Counsel: Okay. But even with the presumption of innocence, Mr.
Russell and the defense would have a hard time convincing you of his
position in this case; is that fair?
Platisha: I don’t believe that’s true, no.
Defense Counsel: Okay. Well, we have a situation here where Mr. Russell
was arrested so a police officer believes something was wrong. The police
officer’s report was sent to the prosecutor and[,] based on the report, charges
were filed against him. And now he’s sitting here at trial. Would it be fair
to say in your mind something must be serious here or there must be some
evidence here or he wouldn’t be here?
Platisha: I don’t know. I haven’t heard that evidence so I guess I can’t
answer that.
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. . .
Defense Counsel: If you had a hunch the guy’s guilty or maybe the guy’s
guilty, would that have been enough for you?
Platisha: No.
¶6 Platisha stated that he had “quite a few” experiences involving drunk drivers and
agreed that he would feel “more comfortable” sitting on another type of criminal case
where he didn’t have so much personal experience.
¶7 The State then followed up with a series of questions of Platisha:
State Counsel: What does fairness mean to you?
. . .
Platisha: I think it’s the correct evaluation of the information that you have,
you make the correct judgment.
State Counsel: And so you wouldn’t say if the defendant was an African
American just because of his skin color you couldn’t be fair?
Platisha: I could not say; right.
State Counsel: Okay. Just because someone is charged with a criminal
offense doesn’t mean you can’t be fair, does it?
Platisha: No, it doesn’t.
State Counsel: And just because you have a certain set of life experiences . .
. doesn’t mean you can’t be fair in evaluating the evidence that’s presented,
does it?
Platisha: No, it doesn’t.
State Counsel: And you believe you can be fair in this case, can’t you?
Platisha: I believe I could be.
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¶8 Russell challenged Platisha for cause. The District Court denied the challenge after
determining that Platisha “indicated that even with his life experiences[,] which he has
discussed with us, he is still able to be fair in the case . . .” and asking Platisha, “is that
correct, Mr. Platisha?” Platisha answered in the affirmative. Following the denial of the
for-cause challenge, Russell used his first peremptory challenge to excuse Platisha and
went on to use all his remaining juror challenges.
¶9 On February 26, 2016, after a two-day trial, the impaneled jury found Russell guilty
of Felony DUI. On April 27, 2016, the District Court sentenced Russell to thirteen months
with the Department of Corrections for placement in a residential alcohol treatment
program and four years suspended to be served consecutively. Russell appeals the District
Court’s denial of his for-cause challenge of Platisha.
STANDARDS OF REVIEW
¶10 We review denial of a challenge to dismiss a juror for cause for abuse of discretion.
State v. Richeson, 2004 MT 113, ¶ 14, 321 Mont. 126, 89 P.3d 958; see also State v. Grant,
2011 MT 81, ¶ 8, 360 Mont. 127, 252 P.3d 193. If a district court abuses its discretion by
denying a legitimate for-cause challenge, the error is structural and requires automatic
reversal. State v. Good, 2002 MT 59, ¶¶ 62–63, 309 Mont. 113, 43 P.3d 948.
DISCUSSION
¶11 Whether the District Court erred by denying Russell’s for-cause challenge to a
prospective juror.
¶12 A criminal defendant’s fundamental right to an impartial jury is guaranteed by the
United States and Montana Constitutions. U.S. Const. amend VI; Mont. Const. art. II, § 24;
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State v. Allen, 2010 MT 214, ¶ 25, 357 Mont. 495, 241 P.3d 1045; State v. Hausauer, 2006
MT 336, ¶ 20, 335 Mont. 137, 149 P.3d 895. Section 46-16-115(2)(j), MCA, provides a
prospective juror may be excused for cause if he or she 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.”
¶13 Merely having common experiences relative to the case at hand does not render a
juror impartial or biased. State v. Rogers, 2007 MT 227, ¶¶ 8–9, 25, 339 Mont. 132, 168
P.3d 669 (discussing how a juror’s experience of having his own children was by no means
unique among other prospective jurors and did not disqualify him from sitting on a jury in
a child sex abuse case). Further, if the prospective juror simply “expresses concern about
impartiality but believes he can fairly weigh the evidence, the court is not required to
remove the juror.” State v. Normandy, 2008 MT 437, ¶ 22, 347 Mont. 505, 198 P.3d 834.
We recognize that “[i]n reality, few people are entirely impartial regarding criminal
matters. . . .” Allen, ¶ 26.
¶14 Prospective jurors should be disqualified based on their prejudices only when they
have formed “fixed opinions on the guilt or innocence of the defendant which they would
not be able to lay aside and render a verdict based solely on evidence presented in court,”
Great Falls Tribune v. Dist. Court of Eighth Judicial Dist., 186 Mont. 433, 439–40, 608
P.2d 116, 120 (1980); see also State v. Falls Down, 2003 MT 300, ¶¶ 23, 27, 318 Mont.
219, 79 P.3d 219, or when a serious question arises about a juror’s ability to be fair and
impartial, State v. Golie, 2006 MT 91, ¶ 8, 332 Mont. 69, 134 P.3d 95; State v. Cudd, 2014
MT 140, ¶ 6, 375 Mont. 215, 326 P.3d 417. In determining whether a serious question is
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raised, a district court should review the totality of a prospective juror’s voir dire responses,
Allen, ¶ 26; Golie, ¶ 10; State v. Heath, 2004 MT 58, ¶ 8, 320 Mont. 211, 89 P.3d 947, and
give more weight to spontaneous statements than “coaxed recantations elicited by counsel
because spontaneous statements are most likely to be reliable and honest,” State v. Jay,
2013 MT 79, ¶ 19, 369 Mont. 332, 298 P.3d 396 (internal citations omitted); see also Cudd,
¶ 8; Falls Down, ¶¶ 20-21 (holding that a district court did not abuse its discretion when it
denied four challenges for cause, in part because the potential jurors’ initial responses
“prove that they could be fair and impartial” and it was “only after . . . manipulation of the
potential jurors’ initial responses” that their responses became “unclear and seemingly
biased. . . .”).
¶15 Finally, it is not the role of the court or counsel to rehabilitate jurors whose
spontaneous responses during voir dire expose a serious question about their ability to be
fair and impartial. See State v. DeVore, 1998 MT 340, ¶ 28, 292 Mont. 325, 972 P.2d 816,
overruled in part on other grounds by Good, ¶¶ 40–41; see also State v. Brown, 1999 MT
339, ¶ 22, 297 Mont. 427, 993 P.2d 672.
¶16 We previously held that a district court did not abuse its discretion when it denied a
for-cause challenge to a prospective juror in a case involving sexual intercourse without
consent when the juror indicated that she volunteered as a rape survivor advocate and was
a victim of stalking. Heath, ¶¶ 17, 21, 27, 29, 36. The juror stated that while she felt she
could put aside her own prejudices, she understood that if she were in the defendant’s
position she probably would not want someone on the jury with her experience. Heath,
¶ 21. However, unlike other prospective jurors who were struck for cause after describing
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first hand experiences with very similar crimes to the one charged, were visibly
emotionally distressed at the prospect of serving on a jury for a crime like this, and openly
stated they would have difficulty weighing evidence objectively, this prospective juror’s
experience and demeanor did not constitute circumstantial evidence showing she could not
act with impartiality and without prejudice in the case. Heath, ¶¶ 33–34.
¶17 Russell argues that Platisha’s life experiences, his own admission of doubt regarding
his ability to be impartial, and comparing himself to another juror who had been removed
for cause raised a serious question about Platisha’s ability to hear Russell’s case with
impartiality. Russell also argues that the State’s “heavy-handed efforts” to rehabilitate
Platisha violated Russell’s constitutional and statutory right to an impartial juror and
amounted to structural error mandating reversal. We disagree.
¶18 Although Platisha disclosed similar experiences to Russell’s case, he did not reveal
bias or impartiality. See Rogers, ¶ 25; § 46-16-115(2)(j), MCA. Platisha initially expressed
concern about his own impartiality and told the District Court that he “might be in the same
position as the last juror,” see Normandy, ¶ 22, but he did not reveal a fixed opinion as to
Russell’s guilt or innocence or the outcome of the proceedings, see Great Falls Tribune,
186 Mont. at 439–40, 608 P.2d at 120. Unlike Utter, who admitted that her experiences
“definitely affect[ed] [her] opinions,” and that she felt the refusal to submit to a breath test
inferred guilt, Platisha did not express an opinion as to Russell’s guilt or innocence,
explicitly stating, “I don’t know. I haven’t heard the evidence so I guess I can’t answer
that. . . .” and that merely having a “hunch” as to whether Russell was guilty would be
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insufficient to convict him. See Rogers, ¶ 25; see also Great Falls Tribune, 186 Mont. at
439–40, 608 P.2d at 120.
¶19 Similar to the juror in Heath who had personal experiences pertinent to the case at
bar, Platisha disclosed his experiences and recognized their relevance, but affirmed that he
could be fair. See Heath, ¶¶ 21, 23–24; see also Normandy, ¶ 22. Also like the juror in
Heath, who understood a defendant might find her ill-suited to his case, Platisha stated that
he might be more “comfortable” sitting as a juror on another type of case. See Heath, ¶
21. Still, his experiences and demeanor did not circumstantially show an inability to act
with impartiality and without prejudice in this case. See Heath, ¶¶ 33–35.
¶20 The State’s line of rehabilitative questioning delving into Platisha’s definition of
“fairness” was improper. See DeVore, ¶ 28 (“coaxed recantations of admissions of bias
are merely fodder for appeal and ultimately the source of major expense and
inconvenience. . . .”). However, it was also unnecessary. Platisha had already
demonstrated his ability to remain neutral prior to the State’s series of leading questions.
Considering the totality of Platisha’s responses, see Heath, ¶ 18, none of Platisha’s initial
responses, or those following the State’s unnecessary rehabilitation attempts, evince bias
or indicate a state of mind that would disqualify Platisha as a juror, see Allen, ¶ 26; see also
Falls Down, ¶¶ 20-21. Nothing else in the record indicates that Platisha would have acted
with bias or prejudice to impair Russell’s substantial rights had he been seated on the jury.
See § 46-16-115(2)(j), MCA. The District Court did not abuse its discretion in denying
Russell’s for-cause challenge of Platisha. See Richeson, ¶ 14.
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CONCLUSION
¶21 The District Court did not abuse its discretion in denying Russell’s for-cause
challenge to a prospective juror. We affirm.
__/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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