STATE OF MONTANA, Plaintiff and Respondent, v. DONALD EUGENE AZURE, Defendant and Appellant.
No. 04-603
IN THE SUPREME COURT OF THE STATE OF MONTANA
December 20, 2005
2005 MT 328
APPEAL FROM: The District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADC 97-072(C), Honorable Kenneth R. Neill, Presiding Judge
For Appellant:
Travis Cushman, Attorney at Law, Great Falls, Montana
For Respondent:
Hon. Mike McGrath, Montana Attorney General, Jim Wheelis, Assistant Attorney General, Helеna, Montana
Brant S. Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: November 2, 2005
Decided: December 20, 2005
Filed:
Clerk
¶1 Following a four-day jury trial in January 2004, Donald Azure (Azure) was convicted by unanimous verdict of felony deliberate homicide and felony criminal endangerment. He appeals on the grounds that the jury was impaneled improperly and that the District Court gave an erroneous jury instruction for the charge of criminal endangerment. We affirm.
ISSUES
¶2 A restatement of the issues on appeal is:
¶3 Was Azure‘s jury venire improperly impaneled?
¶4 Did the District Court corrеctly instruct the jury on the elements of criminal endangerment?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Azure was charged with deliberate homicide, attempted deliberate homicide and criminal mischief on February 27, 1997. He was tried in October 1997, and convicted of deliberate homicide, mitigated attempted deliberate homicide and criminal mischief. We affirmed his conviction in 2002. The underlying facts pertinent to Azure‘s original charges and earlier trial have been detailed in State v. Azure, 2002 MT 22, 308 Mont. 201, 41 P.3d 899, and will not be repeated here.
¶6 In February 2003, Azure petitioned for postconviction relief claiming that the jury selection process of his 1997 trial violated his constitutional rights. The District Court granted Azure‘s Petition in November 2003. On December 9, 2003, the State filed an Amended Information charging Azure with deliberate homicide and felony сriminal
STANDARD OF REVIEW
¶7 The District Court‘s decision to deny Azure‘s challenge to the compоsition of the jury was a conclusion of law. Our standard of review for a district court‘s conclusions of law is plenary and we must determine whether the court‘s conclusions are correct as a matter of law. State v. Bingman, 2002 MT 350, ¶ 55, 313 Mont. 376, ¶ 55, 61 P.3d 153, ¶ 55 (citation omitted).
DISCUSSION
¶9 Was Azure‘s jury venire improperly impaneled?
¶10 Azure‘s jury venire was compiled by сombining three separate jury panels that had been randomly selected by computer from the list of Cascade County registered voters. These panels were called for trials scheduled to occur around the same time as Azure‘s trial. When these other trials did not take place, the jury panels were held over and ultimately assigned to Azure‘s trial. Panels one and two each originally consisted of seventy persons. Panel three originally consisted of thirty-five рersons. Prior to being assigned to Azure‘s trial, these panels were reduced to forty-six, forty-seven, and twenty-four persons respectively as a result of some jurors being excused by the clerk‘s office or the judge for legitimate reasons. Additionally, ten people were eliminated for failure to contact the clerk after the summons was mailed to them and the clerk was subsequently unable to reach them.
¶11 Panel one was initially assigned to Azure‘s trial. However, the District Court notified the clerk several days before the trial that it wanted at least eighty prospective jurors in this case. To accommodate this request, the clerk‘s office added the twenty-four names from panel three to the forty-six namеs on panel one. This created a pool of seventy people. The clerk then added the first twenty-one names from panel two. However, because panel two had previously been alphabetized, the selеcted surnames began with the letters A through K,
¶12 Azure‘s complaint on appeal arises from the manner in which panel two was split. He maintains that it was error to alphabetize this list and then select only the first twenty-one persons based upon the first letter of their last names. He posits that once the list was put in alphabetical order and then not used in its entirety, it ceased to be random. He further asserts that when this list was combined with the other panels, the overall jury pool was tainted, he was denied a fair cross-section jury panel, and he is entitled to a new trial.
¶13
If the drawing of jurors is conducted by means of a computerized database, it must be conducted by use of a computerized random selection process that the judges of the district court of the county have approvеd in writing as satisfactorily fulfilling the requirements for the drawing of trial juries. [Emphasis added.]
¶14 Azure complains his jury panel was not “randomly” selected. Using the ordinary meaning of the term “random,” i.e., lacking a specific plan or pattern,1 it could be argued that once the list was alphabetized, it was no longer random. However, to prevail, Azure must prove that the selection process was not random. This he has failed to do. Mere alphabetization of a randomly selectеd list of names and elimination of some of those names
¶15 Without substantive analysis, Azure relies on State v. Taylor (1975), 168 Mont. 142, 542 P.2d 100, and Taylor v. Louisiana (1975), 419 U.S. 522, 95 S.Ct. 692, 45 L.Ed.2d 690, in arguing that the alphabetization and subsequent bifurcation of one jury panel “systematically excluded an identifiable class of citizens.” Our review of these cases leads us to share Justice Harrison‘s observation in State v. Taylor, “We have no disаgreement with the case authority cited by defendant nor the law established by that authority, however, the case authority cited is not applicable to the instant case.” While these cases stand for the proposition that a systеmatic exclusion of an identifiable class of citizens violates the requirement that the jury be a fair cross-section of the community, Azure failed to establish that the persons eliminated from the alphabetical list were eliminated based upon their “race, color, sex, culture, social origin or condition, or political or religious ideas.” State v. Taylor, 168 Mont. at 144, 542 P.2d at 101. Moreover, Azure failed to show any prejudice against him or injury affecting his right to an impartial jury resulting from the alleged discriminatory selection of his jury. State v. Taylor, 168 Mont. at 148, 542 P.2d at 103.
¶16 The elimination of panel members from a venire based exclusively on the first letter of the person‘s last name is not a systematic exclusion of a distinctive, identifiable class of the community. There was no discеrnible gender, ethnic, or other suspect grouping that occurred1
¶17 Lastly, as noted by the District Court in its Order, the jury selection process in the case before us is distinguishable from that utilized in State v. LaMere, 2000 MT 45, 298 Mont. 358, 2 P.3d 204. In LaMere, the clerk notified prospective jurors of jury duty by telephone instead of through the mail. Noting that this method necessarily eliminated any person who did not have a telephone, or allowed persons with telephones to “excuse himself or herself from possible jury duty simply by failing to return the clerk‘s phone call,” the Court held that the telephone summoning method was a “substantial failure to comply” with relevant jury selection statutes, and materially undermined the purpose of these selection statutes to provide for random selection of jurors on the basis of objective criteria. LaMere, ¶¶ 73 and 75. We vacated LaMere‘s conviction and remanded the matter for a new trial. LaMere, ¶ 76. We conclude that Azure has not established that the jury summoning method employed by the clerk in this case was a “substantial failure to comply” with the statutes governing the procurement of a triаl jury.
¶18 Therefore, the District Court‘s decision to deny Azure‘s challenge to the jury venire was correct and will not be disturbed.
¶19 Did the District Court correctly instruct the jury on the elements of criminal endangerment?
¶21 In the case before us, the State proposed the first two definitions of “knowingly” cited above. Azure offered no proposed instructions on “knowingly.” During negotiations to settle jury instructions, however, Azure objected to the use of both definitions proposed by the State and proposed instead MCJI definitions three and four. The District Court initially decided to give instructions on definitions one through three, over Azure‘s counsel‘s continued objections. Immediately before argument, however, the District Court decided to
¶22 Azure disingenuously implies on appeal that the District Court gave all three definitions it originally indicated that it would. Azure submits that this “allowed the jury to select that definition which it believed was most applicable.” The record confirms, however, that the District Court gave an instruction providing a single definition of “knowingly.” This complied with Lambert, satisfied Azure‘s objection, was approvеd by Azure‘s counsel, and was a proper instruction for the offense of criminal endangerment. The District Court‘s instruction was not an abuse of its discretion.
CONCLUSION
¶23 For the foregoing reasons, we affirm the District Court‘s denial of Azure‘s jury challenge.
/S/ PATRICIA O. COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ BRIAN MORRIS
/S/ JOHN WARNER