State v. Michael W. McDonald

March 20 2013
DA 12-0111
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 74N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MICHAEL WAYNE MCDONALD,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 10-291
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender; Lisa S. Korchinski, Assistant
Appellate Defender; Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant
Attorney General; Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney; Shawn Thomas,
Deputy Missoula County Attorney; Missoula, Montana
Submitted on Briefs: February 27, 2013
Decided: March 19, 2013
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Michael Wayne McDonald (McDonald) appeals from a final judgment entered by the
Fourth Judicial District Court, Missoula County. The issue presented on appeal is whether
the District Court abused its discretion in denying McDonald’s challenge for cause of a
prospective juror. We affirm.
¶3 McDonald was charged with two counts of felony incest. Trial commenced in
February 2011. During voir dire, when asked if she would be a suitable juror, prospective
juror Lewis stated: “I’m not sure. I think that I can be impartial. However, knowing the
statistics on domestic violence and sexual abuse cases, it seems that the question isn’t
whether the girls have been molested. It’s a question of whether or not Mr. McDonald was
the perpetrator.” In response to further questioning from the defense and the court, Lewis
stated that she had not made up her mind and could be fair and impartial. McDonald moved
to excuse Lewis for cause which was denied.
¶4 A prospective juror may be challenged and excused for cause if the court determines
that the prospective juror “[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.” Section 46-16-115(2)(j), MCA. In
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determining whether a prospective juror should be excused for cause, the court must consider
both the statutory requirements and the totality of the circumstances. St. Germain v. State,
2012 MT 86, ¶ 65, 364 Mont. 494, 276 P.3d 886 (citing State v. Normandy, 2008 MT 437, ¶
22, 347 Mont. 505, 198 P.3d 834; State v. Robinson, 2008 MT 34, ¶ 8, 341 Mont. 300, 177
P.3d 488). If the totality of a prospective juror’s responses raises serious questions about
their ability to be fair and impartial, the juror should be removed. St. Germain, ¶ 65. If,
however, the prospective juror merely expresses concern about impartiality but believes they
can fairly weigh the evidence, the court is not required to remove the juror. St. Germain, ¶
65.
¶5 “Jurors should be disqualified based on their prejudices only where 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 the evidence presented in court.’” State v. Hart,
2009 MT 268, ¶ 13, 352 Mont. 92, 214 P.3d 1273 (internal quotation omitted). We give
deference to district courts who sit in a “peculiarly advantageous position,” wherefrom they
may observe a juror’s demeanor, expression, and manner of answering questions in order to
discern the true bias of a potential juror. Hart, ¶ 13.
¶6 In this case, Lewis never stated or inferred that she had a fixed opinion about
McDonald’s guilt. Lewis stated that she “[had not] made up [her] mind,” that she “[could]
be impartial, and . . . openly listen to the case,” and that she could be fair. The court excused
nine other prospective jurors for cause because of statements about their ability to be fair and
impartial. In Lewis’s case, however, the court decided based on the totality of the
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circumstances that Lewis was qualified to sit as a juror. Under the circumstances of this
case, we have determined that the District Court did not abuse its discretion when it denied
McDonald’s challenge for cause of prospective juror Lewis.
¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our
Internal Operating Rules, which provides for noncitable memorandum opinions.
¶8 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
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