*1 STATE MONTANA, OF Respondent,
Plaintiff and v. FRESHMENT,
JOSEPH B.
Appellant.
Defendant
00-242.
No.
Submitted on Briefs December
2001.
Decided March
Dennis Yellowstone County Attorney, Billings. Deputy Yellowstone Opinion Justice James C. Nelson delivered the of the Court. (Freshment) by jury of two Joseph Freshment was convicted - 45-5-503(1) consent, of sexual intercourse counts without §§ 503(3)(a), MCA, Court, in the Thirteenth Judicial District Yellowstone trial, into County. Prior to Freshment moved to sever the two counts trials, victims on separate separate because the counts involved During jury The denied this motion. separate occasions. District Court dire, jurors made motions to dismiss two of the voir appeals cаuse which were denied the District Court. Freshment argues given these denials and also he was ineffective assistance attorney object juror counsel in that his failed to to a third for cause. cause, jurors on the failure to dismiss the two Because we reverse argument. we do not address the ineffective assistance of counsel We affirm on the issue of severance. this case is remanded Court for retrial. District following appeal: address the issues on We it denied 1. Did the District Court abuse its discretion when jurors to dismiss two for cause? Freshment’s motions by denying the District Court abuse its discretion 2. Did charges and hold trials? Freshment’s motion to sever the *3 Freshment, third issue raised We decline to address a juror third ineffective assistance of counsel for failure to assert a cause, оn the first should dismissed for because our conclusion be issue.
I. FACTUAL AND PROCEDURAL BACKGROUND holding requires in this case remand to the District Because our retrial, charges only facts of the to the extent Court for we discuss the of the issues on necessary dispose appeal. to 28,1998, charged Freshment was with two counts On December trial, Prior to Freshment moved of sexual intercourse without consent. trials because each involved separate to sever the two counts into The District Court denied this separate victims on occasions. not sufficient concluding motion Freshment did demonstrate charges in the information under joinder the of the proper to overcome 46-11-404(1), under this issue MCA. Further details will be discussed § below. dire, jurors for cause Freshment moved to dismiss two During voir his asserted defense they regаrding opinions expressed
because of the charges. For one of the counts of sexual intercourse to one the consent, the without Freshment asserted the defense consent years age, Because this victim was under 16 alleged victim. only of consent is valid if he had a reasonable Freshment’s defense consent, enough give i.e. 16- that the victim was old a valid belief 45-5-511, years-of-age or older. See MCA. Freshment’s counsel Kevin § (Peterson) brought country the of the famous up example Peterson singer following question LeAnn Rimes1 and asked the of the prospective jurors: though Is there here there’s anybody
PETERSON: who even in their mind that Mr. Freshment could have reasonable belief the, the, 15-year-olds believed that one of or both of of the was in fact 16 at the time of the act that acquit would be able to him? (PORTER): instance, mean, JUROR PAULA K. PORTER In that I made, why statutory rape isn’t that was made? I law mean, he, know, girls you a lot of can younger they be than adult, you really just look. He’s the if would take chance it was - No, year a matter of a I’m or two. He’s the adult. you PETERSON: Under no circumstance then are telling me that you could acquit? [sic] No, I really
PORTER: couldn’t. Okay. given you PETERSON: Even if the law were that 16 is age of consent? PORTER: I Even then couldn’t do it. you
PETERSON: And would not if follow law even that turned out to facts of the case? Well, might law,
PORTER: I I be forced to follow the but wouldn’t agree way probably with it. That’s not the I’d vote. following law;
PETERSON: You would lean towards not is that fair?
PORTER: Yeah. cause, challenging After Porter for the District Court allowed the (Tronrud), attorney, Beverly question State’s Tronrud her. Their exchange proceeded as follows: Porter, Judge going give you
TRONRUD: Ms. a set of instructions, you’re juror, if chosen as a lists out all the law *4 after, 1 LeAnnRimes recorded her first when she was eleven. Soon her album Presumably popular defense second release called “Blue” reached wide council acclaim. might trying example people use her as an of someone who other was age. reasonably older than her actual believe was you’ll I think one of the instructions that you that have to follow. But if the says anyone it that under 16 cannot consent. given be older, thought she was 16 or that’s a defendant can show that he is, instructs you you as to the law can Judge defense. If the what law, you? follow the can’t and judgment,
PORTER: Yes. But this comes down to matter foolish, mean, knows, woman, if the every if the I man or a girl’s rеversed, if birthday, that a matter of months in a situation was chance, a chance. you there’s a don’t take all a matter of a Something you TRONRUD: said it’s well, if the your judgment of the witnesses as judgment and him, in testify, you judgment will have a defendant chooses to - witnesses, light of the other too Right. PORTER: - say? is that fair to TRONRUD:
PORTER: Yeah. just judging everything together you’re you’re
TRONRUD: So that, fair? going apply the law to would that be PORTER: Yeah. you Would be able to do that?
TRONRUD: PORTER: Yeah. Okay. you.
TRONRUD: Thank cause], [to dismissal for Your Honor. objects The State objection is exchange, the District Court stated: “That Following this I has that she will at least follow that juror sustained. think the stated law.” regarding to the the defense of consent response question same consent, enough victim old Juror
in the context of a belief the (Hansen) stated: James L. Hansen Well, girl lied as а certainly I would consider that
HANSEN: oh, should, defense, probably I think a defendant in this case but teenagers lie about their perceptive enough realize be aware of enough I think he should cautious to be ages, and that. acquitting based you If were faced with a decision
PETERSON: young woman we’re girl belief that on reasonable you herself as older than talking represented here about to, rely maybe defendant to it reasonable for a could see that was that, you him? acquit on could I’m not sure.
HANSEN: you give pause? What would PETERSON: *5 Well, I guess just teenagers HANSEN: the fact that do sometimes age, lie about their and I would may consider that that have been given, the information the defendant was it would still be difficult just me I for to do. think that an adult enough should be cautious to avoid situations like that. you given you
PETERSON: Would follow the law at the end of the case and apply facts to the law?
HANSEN: Yes. consent, age
PETERSON: And if 16 is the your and it was opinion belief, that he had a you reasonable would acquit him? I anyway, HANSEN: could consider that I could consider it. you acquit PETERSON: Would him? I
HANSEN: don’t know. you’d PETERSON: You don’t if know be able to apply law given you to the facts? (No
HANSEN: oral response.) PETERSON: Is that you’re what saying, though you even n understand what you’re being Judge? told Okay. law, HANSEN: I could apply yes.
Further, at the end of voir dire Peterson asked: anybody
PETERSON: Is there who does they not feel can fair be and impartial? (Raises hand.)
HANSEN: Yes,
PETERSON: sir. Well, I just my HANSEN: think relationship my with daughter and her job, current I think I probably have sympathies some just toward the victims daughter from what our goes through dealing with those victims.
Hansen explained during earlier voir dire that daughter his had worked as a sexual assault coordinator for the past YWCA for the few months, that she previously worked group with the same on domestic abuse, that she did an internship Billings at the Department Police college, and that she lived at home. Hansen also stated that while he did specific not know the identities of victims his daughter worked with, he was aware of the stresses of her job people’s and how lives situations, were affected such and that he would find it difficult to impartial given his understanding experience. of her After brief questioning by the State which confirmed that Hansen was not specific familiar with the alleged victims in this case and that he would law, follow the the District Court denied challenge Freshment’s for cause to dismiss Hansen. appeals Freshment now the denials of his denial of appeals also Porter and Hansen and
challenges to Jurors to sever. his motion
II. ISSUE ONE when it denied its discretion District Court аbuse Did the cause? jurors two motions to dismiss Freshment’s A. Standard of Review juror for cause for challenge of a to dismiss review denial We 59, 40, Good, State v.
abuse of discretion. juror to dismiss a To determine whether MCA, 46-16-115(2)(j), which cause, guided part by § trial courts are provides: *6 following of may any taken for all or the challenge
A for cause the court determines: any other reason that reasons or for of to the case or to either of mind in reference (j) having a state acting with entire juror the from prevent that would parties the rights of prejudice to the substantial and without impartiality party. either to a trial an right Because of the 46-16-115(2)(j), MCA.
Section Mont.Const., and II, 24, great expense and the impartial jury, Art. Sec. retrial, for cause is favored results from dismissal inconvenience that juror’s ability impartial. the to be arises about questiоn a serious when 1099, 539-40, (1993), 530, 866 P.2d 262 Mont. State v. Williams 113, 59, 43 Good, MT 309 Mont. 2002 part by State v. 1104-05overruled P.3d 948. is alleged prejudice juror’s on a Disqualification based guilt or opinions on the jurors “form fixed
necessary only where lay aside they would not be able the defendant which innocence of in court.” presented solely on the evidence and render a verdict based 21, 972 816, 21, 292 325, 340, Mont. DeVore, MT ¶ v. 1998 ¶ State 113, 43 59, 309 Good, Mont. 2002 by State v. part 21 overruled in ¶ (1980), 186 District Court Tribune v. Great Falls (quoting P.3d 948 omitted)). (citations of 116, Abuse 439-40, 120 433, 608 P.2d Mont. if actual juror prospective to “excuse a if a court fails discretion occurs v. DeVore, 21 State (quoting during voir dire.” is discovered bias omitted)). (citation 57, 61, 64, 947 P.2d (1997), Mont. Chastain fodder merely are of bias Further, of admissions “coaxed recantations jurors whose role to rehabilitate a district court’s It is not appeal.... honest, dire responses on voir and most reliable and thus spontaneous, impartial.” and ability to be fair about expose question a serious their DeVore, 28. Williams, In held that court abused its discretion we the trial juror it a she not be impartial
when failed to dismiss who stated could officer, was arresting she was a close friend of the a resident because occurred, neighborhood ofthe where the homicide read about the crime recently juror and formed an and had served in another opinion, as Williams, at at homicide case. 866 P.2d 1102. In DeVore, we held that the trial court erred when it failed to dismiss two who, jurors throughout unwavering continued were questioning, brought “guilty their belief that a defendant to trial must be of something” inability because their belief demonstrated аn to afford the DeVore, presumption defendant innocence. 15-24. We further ¶¶ attempts jurors held trial court’s and qualify rehabilitate ineffective, ignored their statements improper the statements jurors. DeVore, of clear bias 26-28. ¶¶ Good, we determined that when a trial court fails to dismiss structural, juror, error biased such an as in State v. described Van Kirk, 2001 MT because the error evidence, precedes presentation affects the framework trial, and the error cannot be qualitatively quantitatively weighed Good, the evidence. that such an held conclusively abuse discretion is prejudicial requires automatic if: reversal
(1) a by denying challenge district court abuses its discretion juror; cause to a prospective
(2) objecting party of his peremptory uses one or her challenges juror; disputed to remove the (3) objecting party all of his peremptory exhausts or her *7 challenges.
Good, By requiring 62-63. ¶¶ automatic reversal when defendant test, part meets this three we that DeVore part overruled of and Good, provided type analysis. Williams that for a of harmless error
B. Discussion failing Freshment the in asserts District Court erred to dismiss
¶15 jurors impartial two cause who could not toward his defense. be jurors The State the not opinions asserts that did have fixed on law, guilt, jurors they Freshment’s that the the stated could follow and that we must the on defer to District Court determinations this issue. by Freshment, The State out in cases points also the relied on Williams, and the participated rehabilitating DeVore trial court in the jurors at issue. prospective Hansen, the Based the voir of Porter and we hold on dire in two failing Court its discretion to dismiss these
District abused directly jurors actual to an jurors for cause. Both stated an bias related case, of i.e. Freshment could critical to the outcome the whether issue 16 or older. Neither have a belief one of the victims was reasonable pressed by their the State’s meaningfully qualified biases when “really acquit Further, couldn’t” and attorney. Porter stated she the when asked his final only person respond Hansen was Peterson does feel prospective jurors, anybody to the “Is there who not question jurors fair Like the in DeVore who stood they impartial?” can be and anyone something,” must charged “guilty fast in their belief that candid, jurors’ belief that these two statements show consistent Further, imрartial. jurors their showed a ability affected to be these they to a that was in direct specific more bias in that testified belief they acquit if they with law when stated could not even conflict the victim at they found had a reasonable belief that the years-of-age. least out, from Williams and points As the State this case different here, not attempt in that the District Court did rehabilitate
DeVore Rather, jurors to do so both and the jurors. attempted the State However, questions counsel similar of Hansen. we noted defense asked here, again people and we take note that most DeVore Williams agree questioning in the face repeated will at least to follow law 27, 297 Brown, State v. 1999 MT in a courtroom. See also (Nelson, J., concurring) specially 27¶ stating рrospective jurors, after (emphasizing concurrence that most bias, resist “rehabilitative” spontaneous repeated a candid and cannot they fairly apply law questions regarding whether can generic community, attorneys, from and the peers surrounded when courtroom). setting unfamiliar of a judge trial they merely follow jurors Coaxed in which state will recantations court, law, or the prompted prosecution, whether the trial defense, demonstrates clearly or erase a stated bias which do cure rights against party. the substantial actual by failing abused its discretion this case the District Court consistent straightforward, Porter Hansen due to their dismiss of a legal Freshment’s defense statements actual bias enough to consent. belief the victim was old reasоnable its Court abused Given we have determined District cause, Hansen for when it failed to dismiss Porter and discretion *8 case, this step analysis. undisputed to the next of the it turn challenges these peremptory Freshment used his to remove both of jurors. undisputed It is also that Freshment exhausted his prospective Good, challenges. according to the rale in the peremptory conclusively prejudicial District Court’s error in this case is and requires Accordingly, automatic reversal. we remand for retrial.
III. ISSUE TWO Did by denying the District Court abuse its discretion ¶20 Freshment’s motion sever charges the and hold trials? argues concluding Freshment the District Court erred in two
counts of sexual intercourse without properly joined consent were concluding one information and also erred in that severаnce was not required due to unfair him. prejudice against Because this will remain retrial, an issue on argument we will consider each in turn.
A. Standard of Review for Joinder Counts We review whether properly joined counts were an information Southern, 94, 17, 225, 17, de novo. v. State ¶ ¶ 46-11-404(1), MCA, 17. Section joinder allows of offenses when offenses are “ofthe same or or similar character are based on the same transactions connected together constituting parts of a common plan.” scheme or Some factors used to consider whether counts in an information are similar character include whether the charges brought statute; are under the charges same whether the victims, locations, involve similar operation; or modes of the time occurred; frаme charges within which the geographical and the area Southern, within which the A charges occurred. 19. defendant has prove misjoined 46-11-404(1), the burden to that counts were under § Southern, MCA.
B. Discussion joinder Freshment asserts that of the two counts of sexual intercourse without consent was because counts not improper were similar. not Freshment does contest similarities between the 45-5-503(1) counts; 503(3)(a), brought both counts were under §§ MCA, 15-year-olds; through involved both victims met Freshment alcohol; mutual alleged friends consumed and both crimes days does, however, in Billings apart. argue occurred two not counts are similar because in one the victim consumed alcohol other, before she met Freshment and in Freshment provided alcohol to the victim. Freshment asserts charges alsо are rape, forcible whereas the alleged one involved an
similar because allegedly other was consensual. the District reviewing charged, counts we hold that After joined concluding properly did the counts were under
Court not err *9 case, satisfy of the 46-11-404(1), In this the counts most factors MCA. § Both counts involve similarity in character mentioned above. 15-year-olds; with inebriated both sexual intercourse without consent through initially Freshment mutual victims were introduced to friends; days; and alleged crimes occurred within two both instances, Further, alleged Billings. in both occurred charges To hold these are not similar age to know of victim. 46-11-404(1), to MCA, holding equivalent under would § character be if any found differences exist. charges that no could ever be similar Further, alleged and rape betweеn forcible Freshment’s distinction 46-11-404(1), MCA, if the consent is significant is not under § consent between the found valid. the similarities character not joinder, by as found the District proper two counts are sufficient for Court. of Counts
C. Standard of Review for Severance separate trials denial of a motion sever counts into We review Southern, (1995), 28; v. 274 of discretion. State Richards ¶ abuse (1996), 180, 227; 188, 222, 279 Mont. 906 P.2d State v. Martin Mont. 185, 191, 1380, A counts as may P.2d 1384. trial court sever 926 allowed statute: prejudiced a or the is prosecution
If it
that
defendant
appears
indictment,
information,
charges
in an
joinder
a
of
or defendants
may
court
order
by joinder
together,
or
a
for trial
complaint
or
defendants,
trials,
provide
grant a severance of
separate
requires.
justice
whatever other relief
46-13-211(1),
In order tо determine whether
sever
Section
MCA.
a
counts,
possible prejudice to defendant
court must balance
trial
joint
economy resulting
holding
from
trial.
judicial
188,
226-27;
Southern,
Richards,
P.2d at
28;
165
seeking
A criminal defendant
to sever counts into
severing
necessary
has
that
the counts
proving
trials
the burden
Southern,
(1988),
14; State v.
prevent
prejudice.
unfair
Slice
231
¶
448, 451,
1309, 1311.
P.2d
unfair
it is
Regarding
prejudice,
Mont.
prove
prejudice
will
not sufficient for defendant
that some
result
jоint
acquittal
from a
trial or that a better chance of
would
realized
be
Southern,
29;
Hocevar,
157,
separate trials.
State
¶
from
v.
¶
167, 63,
329,
63, 300
Rather,
Mont.
7 P.3d
63.
a defendant has the
¶
burden to demonstrate
fair trial.
prejudice
prevent
will
Southern,
Finally, prejudice
29.
is more difficult to
demonstrate
charges
will
be found when the
are
and the
is simple
few
evidence
distinct,
because there is no reason
will
jury
to assume a
be
Southern,
keep
separate.
41;
confused
unable to
the evidence
Richards,
189, 906
Martin,
227;
274 Mont. at
P.2d at
are three prove a defendant must *10 by Southern, First, considered a trial court. the 30. accumulation of ¶ may jury evidence such be that a would find the defendant bad person Southern, and wish to convict something. the defendant of 30. Second, a jury might use of guilt evidence on one count convict on to inadmissable count, another though even evidence would at a trial the Southern, Third, on latter count. the defendant may by suffer prejudice wanting testify to on one count and not Southern, another. of by 30. Abuse discretion court only district properly weigh occurs where the court fails types to these three prejudice judicial the economy resulting joint from a trial.
D. Discussion Freshment concedes on did appeal that he not suffer the third
possible type prejudice, prejudice suffered because a defendant testify another, wishes to on one but count not trial he because at only to testified both counts. we need consider whether the concluding Distriсt Court abused its discretion in that Freshment did meet prove not his burden to he would unfair from prejudice suffer accumulation of evidence or from the use of inadmissable evidence proof guilt from one count as of another.
1. Accumulation of Evidence argues Freshment the is than stronger evidence on one count the therefore, jury
evidence on other could accumulate and, find him consequently, guilty him a person evidence find bad accumulation, cites the counts. As evidence of Freshment of both attorney at trial in which the State’s closing State’s statement together. counts The State said: discussed the days, nightmares, two girls, young girls, Two within two two two what lives all because what this defendant wanted. And shattered no, yes, One one said young girls. this defendant wanted was said no, her. said he took what he wanted from He took and when she from of them. what he wanted both kind 30-year-old kind of man has [W]hat of man does this. What girls, 15-year-olds? young sex with by testimony the State for the Freshment also notes submitted sentencing hearing together. the counts were discussed which nature of the asserts that because of the emotional Freshment also crimes, juries cannot but accumulate such evidence. help reviewing cited possible After evidence Freshment, discussing together opening hold counts we joint arguments sentencing, or at is done trial closing commonly as prove improperly accumulated does not evidence was proceedings, argue does was insufficient jury guilt. to find not there argue jury improperly count does evidence for each Rathеr, only assertion that instructed as to each count. he makes an evidence, have due to State’s jury might accumulated Martin, unsupported, general held in an assertion statements. As we of evidence alone not sufficient of the cumulative effect Martin, severance. at prejudice requiring demonstrate present intended to Closing P.2d at 1385. statements are jury naturally will prosecutors to the summation of the evidence Likewise, a summation. together presenting mention counts ato court. sentencing present recommendations also summations course of integral are normal Because such summations has failed to show that the summations and Freshment proceedings that Freshment failed unfairly prejudicial, are hold here *11 from evidence. unfair accumulation of demonstrate addition, authority no for his assertion that In cites Freshment a minor against intercourse without consent the crime of sexual because its different than other crimes requires special treatment indiscriminately jury a somehow causes emotional nature in reviewing of evidence In accumulation evidence. accumulate Southern, of intercourse of five counts sexual we denied severance
167
citizens, clearly as
as
against
without consent
four senior
emotional
Southern,
Martin,
charges
similarly
in
case.
denied
this
crimes,
sexually
against
eight
of
counts of
related
all
severance
192,
Martin,
children
fourteen.
2. Use of Inadmissable Evidence finding next in argues Freshment District Court erred
each count as of would have been admissible evidence common scheme against if his separate other trials were held. Freshment bases rule, argument on the Just Rule interprets which 403 and Rule /Matt 404(b), M.R.Evid., to prohibit introduction evidence of other crimes separate charge committed a defendant at trial of a certain unless (1979), proof requirements are met. See v. Just State Mont. (1991), 957; 136, 142, 814 52, 56. State v. Matt P.2d asserts that count because each would not been have trial,
admissible in against the other a separate failing to sever the jury counts allowed the prejudicial consider character evidеnce. Sweeney, Freshment cites State v. support argument of his that the District Court erred
finding the counts would have been separate admissible in trials. He rule, also reasserts that under the counts were Just/Matt similar in character for the same he argued reasons above under the joinder Finally, argues issue. he was no overlapping there evidence between the counts. The it necessary State asserts that is not each consider whether because,
count would have been admissible the other where straightforward, the counts are few and unfair occur prejudice does not juries because can properly simple consider and distinct evidence. Alternatively, argues the State that the District Court was correct finding rule, that under the each count would have been Just/Matt common separate admissible in part trial the other as scheme. a. Just/Matt Analysis finding First we will consider whether the District erred in Court each count would be in a trial of other admissible as
under rule evidence of a common scheme. Just/Matt Admissibility satisfying other crimes is determined four factors:
(1) crimes, similar; wrongs The other must be acts (2) crimes, wrongs The other or acts must not be too remote time;
168
(3) crimes, wrongs The evidence of other or acts is not admissible they of a in to show acted person the character order that prove character; may be conformity in with such but admissible motive, intent, opportunity, such as of purposes, proof other plan, knowledge, identity, or absence of mistake or preparation, accident;
(4) relevant, may probative its Although evidence be excluded if substantially outweighed by danger of unfair value is issues, jury, of the prejudice, misleading confusion time, delay, of undue waste of or needless considerations presentation of cumulative evidence.
Southern,
analyzed
already
first
and
34. We
factor above
¶
similar
in character. Freshment
determined that
the counts are
charged
in time.
concedes that the crimes
here were
remote
case,
In
satisfied
this
the District Court found the third factor was
plan.
by
charged
constituted a common scheme or
finding
counts
Sweeney
prior
Our
case law indicates that while the
case
review
scheme,
two counts
cited
Freshment does not discuss common
against each
charged
Freshment would not be admissible
other
against
Rogers,
In State
held
as evidence of common scheme.
v.
testimony by
allowing
prior
victims because the
trial court erred
Rogers,
State
1999
prior
only generic
sexual crimes had
similarities.
v.
40-43,
40-43,
188,
229,
(citing
Mont.
992 P.2d
40-43
297
¶
(barroom
(1980),
91, 98, 608
1083, 1087
P.2d
State v. Hansen
In
systematic
plan)).
pickups are too common
show
scheme
meetings
Rogers,
the sexual crimes each followed barroom
5-8,
Rogers,
22-23.
isolated areas.
parked
occurred
vehicles
¶¶
contrast,
Norris,
prior
testimony by
in State v.
we held
showing common
where the
proper
victim
evidence
scheme
victims,
rape
acts
in that he called both
defendant’s
were distinctive
his child.
babysit
minor
his
room to
babysitters
age,
come to
hotel
427, 429-30, 689
243, 244-45;
(1984), 212
P.2d
see
State v. Norris
Mont.
Martin,
(luring
1387
children to
also
met Freshment mutual alcohol both consumed crime, alleged before the these similarities are not evidence that Rogers, Freshment had a common scheme. Like the court in equating District Court here fell into “the common error of acts and merely circumstances are which similar nature with the more plan.” Rogers, narrow common scheme or State (quoting v. Harris 205). 1984), (Wash.Ct.App. Beсause the similarities between the counts are insufficient as
evidence of a common scheme or plan and would not be admissible for motive, purposes, proof intent, other such as opportunity, *13 mistake, knowledge, identity, or absence of the counts here would not against be admissible each other in trials separate under the third Therefore, factor of the modified rule. we hold the District Just/Matt concluding Court erred in charged against the two counts Freshment would be against admissible each other in trials. However, this conclusion does not require reversal of the District Court’s denial of Freshment’s motion to sever. “Simple Exception
b. The
and Distinct”
Given that
the counts would be
against
inadmissible
each other
trials,
in separate
here,
essence,
argument
Freshment’s
in
is that
prejudice
unfair
requiring severance
presumed.
disagree.
must be
We
Instead,
agree
position
we
with the
the State
that an exception to
presumptions is allowed when the
simple
evidence is
Just/Matt
distinct. Said
way,
another
when the charges are few and the evidence
straightforward,
is
prejudice
unfair
will not be found because it is
unlikely jury
a
will confuse the evidence and improperly
guilt
find
on
one
using
Southern,
count
evidence from
Richards,
the other.
41
274
189,
227; Martin,
193,
Mont. at
statute, 46-11-404(1), MCA, explicitly joint § allows a trial when the merely Further, counts are “of same or similar character.” there is a crucial distinction prejudice might joint between the occur a trial seрarate charges of two prejudice that results from other crimes evidence admitted violation of the rule. In the Just/Matt joined situation charges simple where two are under the and distinct exception, prove the State still has the each element of both burden beyond contrast, crimes In reasonable doubt. if other crimes evidence ¡Matt rule, is admitted in violation of the Just the evidence is especially prejudicial subject proof because that evidence is not
170
may
prior
crimes evidence
consist
beyond a reasonable doubt. Other
acts that were
convictions,
may
previous
consist of
bad
but it also
where other crimes evidence
charged.
example
See
cases
never even
(1990),
v. Gambrel
previous conviction: State
was not result
admitted
84, 87-90,
(prior bad acts
1073-75
246 Mont.
803
show
admitted to
partners
three other live-in
defendant
Norris,
431-32,
212 Mont. at
charged);
murder
common scheme with
admitted to show common
at
bad act of defendant
(prior
689 P.2d
245
crime rather
scheme,
plead ¡guilty to lesser
though
even
defendant
233, 238-39,
(1969),
act);
than bad
State v. Jensen
describing sexual
(testimony
patients
of twelve other
pattern
admitted
continuous
in which
three-year
to show
advances
office).
in his
sexually
patients
assaulted
chiropractor
exception allowed here
“simple
and distinct”
might result when
prejudice
whatever
joinder acknowledges that
charge must
together, because each
crimes are tried
merely similar
doubt,
beyond a reasonable
proven
nonetheless be
judicial
hеavy
consideration
outweighed
is not
unfair and
Richards,
See
considering a motion to sever.
economy receives in
Martin,
P.2d at
227;
IV. CONCLUSION Because the District Court by failing ¶45 abused its discretion to cause, jurors dismiss two this case is remanded for retrial. Affirmed in part, part reversed and remanded. GRAY, REGNIER,
CHIEF JUSTICE JUSTICES COTTER and LEAPHART concur.
JUSTICE COTTER concurs. I Good, concur in I majority opinion. As did in State v. 59, 113, MT 948,1 309 Mont. separately 43 P.3d write I to state that holding would limit the Court’s that a district court’s abuse of discretion in failing grant challenge during cause voir dire is conclusively prejudicial, only, to criminal cases apply would different test in civil cases.
JUSTICE TRIEWEILER concurring
dissenting.
I concur that
District Court abused its discretion when it
challenges
denied
jurors
for cause to
Paula Porter
Hansen;
and James
and, I concur that based on the presumption
prejudice
established
(1993),
530,
State v.
1099,
Williams
262 Mont.
expanded
upon
DeVore,
325,
State v.
Joseph Freshment’s
However,
conviction should be reversed.
I
majority’s
dissent from the
classification of this error as structural
requires
error which
automatic reversal for the
I
same reason that
Good,
dissented to that same
conclusion
State v.
2002 MT