STATE OF MONTANA, Plaintiff and Respondent, v. LARRY HARVILLE, Defendant and Appellant.
No. 05-366
Supreme Court of Montana
Decided November 8, 2006
2006 MT 292 | 334 Mont. 380 | 147 P.3d 222
Submitted on Briefs May 9, 2006.
For Respondent: Hon. Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena; Marty Lambert, Gallatin County Attorney, Bozeman; Paul Luwe, Bozeman City Attorney; Susan L. Wordal, Assistant City Attorney, Bozeman.
CHIEF JUSTICE GRAY delivered the Opinion of the Court.
¶1 Larry Harville appeals from the order entered by the Eighteenth Judicial District Court, Gallatin County, affirming the judgment and sentence entered by the Bozeman Municipal Court upon a jury verdict convicting him of the misdemeanor offense of assault. We affirm.
¶2 The issue on appeal is whether the District Court correctly determined the Municipal Court did not abuse its discretion in denying challenges for cause against two prospective jurors.
¶3 Bozeman Police Officer Christopher Randle alleged in a complaint that Harville committed assault, and issued a notice for Harville to appear in Municipal Court. According to Randle‘s affidavit of probable cause, he and two other officers were dispatched to a laundry and advised that a male had hit an elderly female. Randle stated in the affidavit that he observed a woman inside the laundry with swelling and knuckle imprints on her left cheek. Randle further stated the woman told him Harville wanted to use her washing machine, an argument ensued, Harville began removing her clothes from the machine, she slapped him on the hip, and Harville punched her in the face. Randle reported that a witness described the incident in a manner generally consistent with the woman‘s version of events, while Harville told another officer he hit the woman in self-defense.
¶4 Harville advised the Municipal Court he would assert the defense of justifiable use of force, and the case proceeded to trial. During voir dire of prospective jurors, defense counsel asked if anyone believed that a male should never hit a female or that it was “not right” for a male to hit a female, and some prospective jurors responded by a show of hands. Counsel then questioned the prospective jurors individually on that point.
¶5 Later, outside the presence of the jury panel, the Municipal Court asked whether counsel had any challenges for cause, and defense counsel responded affirmatively regarding four prospective jurors. The court called each challenged prospective juror back individually for further questioning by the court and by counsel. During this process, defense counsel withdrew one of his challenges for cause, and the court granted one challenge for cause after the prosecutor withdrew an earlier objection to the challenge. The court denied the defense‘s challenges for cause regarding prospective jurors David Robinson and Paul Borgeson. Harville subsequently used two of his peremptory challenges to remove Robinson and Borgeson, and the jury was impaneled.
¶6 At the close of trial, the jury returned a verdict of guilty, and the Municipal Court sentenced Harville. He appealed to the District Court, arguing the Municipal Court abused its discretion in denying his challenges for cause, and raising a discovery-related matter which is not at issue in this appeal. The District Court affirmed. Among other things, it reasoned that Robinson and Borgeson‘s strong convictions about not striking women and values regarding violence against women were no different from those of general society. The District
STANDARD OF REVIEW
¶7 We review a trial court‘s denial of a challenge for cause for abuse of discretion. See State v. Marble, 2005 MT 208, ¶ 10, 328 Mont. 223, ¶ 10, 119 P.3d 88, ¶ 10 (citation omitted). Here, the District Court has reviewed the Municipal Court‘s decisions to deny two challenges for cause and determined no abuse of discretion occurred.
DISCUSSION
¶8 Did the District Court correctly determine the Municipal Court did not abuse its discretion in denying challenges for cause against two prospective jurors?
¶9
¶10 In prior cases, we have set forth prospective jurors’ statements as a whole and analyzed the parties’ arguments in relation to them. See, e.g., Golie, ¶¶ 11-29; State v. Heath, 2004 MT 58, ¶¶ 17-41, 320 Mont. 211, ¶¶ 17-41, 89 P.3d 947, ¶¶ 17-41. Here, however, while Harville sets forth a large portion of the prospective jurors’ responses in the statement of the facts section of his appellate brief, his arguments are
¶11 Harville generally asserts Robinson and Borgeson demonstrated prejudice—not regarding the assault charge—but with respect to his asserted defense of justifiable use of force. In this respect, Harville contends Robinson admitted bias in his initial responses to defense counsel‘s questioning—which included Robinson‘s statements that there was a “possibility” his belief that a man should never hit a woman could affect his judgment and, on that basis, he was not certain he could assure Harville he could judge the case impartially. In addition, Harville points to Robinson‘s statement, which occurred near the end of the questioning outside the presence of the panel, that he did not know if he could entirely assure that he could set aside who he was. Harville also highlights Borgeson‘s statements that it went against everything he was raised to believe for a man to hit a woman and that he did not think he could honestly assure Harville that he would be able to set that belief aside.
¶12 On appeal, Harville does not mention the District Court‘s reasoning that Robinson and Borgeson‘s stated beliefs were consistent with those held by society in general. Nor has he presented any argument or advanced any authorities under which a commonly held belief may be the basis for a successful challenge for cause under
¶13 In this regard, we observe Harville‘s reliance on State v. Freshment, 2002 MT 61, 309 Mont. 154, 43 P.3d 968. There, two prospective jurors expressed reluctance to acquit a defendant charged with sexual intercourse who asserted he reasonably believed one alleged victim was 16 years old or older and, therefore, legally old enough to consent. Those prospective jurors stated, among other things, that they thought an adult should be “cautious” in such circumstances because teenagers often lie about their ages. Freshment, ¶¶ 8-9. We reversed regarding the district court‘s denial of the defendant‘s challenges for cause, determining a serious question had arisen about the prospective jurors’ ability to be fair and impartial
¶14 In Freshment, we did not address a court‘s reasoning or a party‘s assertion that prospective jurors had expressed a belief about an affirmative defense consistent with values held by society in general, or whether such a belief could constitute bias as contemplated by
¶15 Harville makes other assertions, however. First, he contends justifiable use of force is a “gender neutral” defense and, therefore, Robinson and Borgeson demonstrated bias with respect to that defense by stating their beliefs that a man should not hit a woman.
¶16 Next, Harville asserts Robinson and Borgeson should have been dismissed for cause because another prospective juror was dismissed for cause “even as the court tried to rehabilitate him.” As mentioned above, the prosecutor withdrew his previous objection to Harville‘s challenge regarding that prospective juror. On appeal, Harville cites to no authority, as required by Rule 23(a)(4), M.R.App.P., to support his assertion that a court‘s dismissal for cause of one prospective juror—after a party withdraws a previous objection to the challenge for cause—has any relationship to denials of challenges for cause pertaining to other prospective jurors. Thus, we decline to address that assertion further. See Buck, ¶ 28.
¶17 Finally, Harville asserts the prosecutor and Municipal Court improperly coaxed recantations of Robinson and Borgeson‘s allegedly biased statements. Having concluded Harville has not established error with respect to the District Court‘s reasoning that Robinson and Borgeson‘s statements were consistent with those held by society in general or otherwise, we need not address Harville‘s argument regarding coaxed recantations of those statements.
¶18 We hold the District Court correctly determined the Municipal Court did not abuse its discretion in denying Harville‘s challenges for cause.
¶19 Affirmed.
JUSTICES LEAPHART, MORRIS and RICE concur.
JUSTICE COTTER dissents.
¶20 I dissent. Harville did not address on appeal the District Court‘s reasoning that the two jurors’ stated beliefs were consistent with those held by society in general (see ¶ 12); rather, he contended, on the basis of our well-recognized jurisprudence in Richeson and other cases, that the jurors expressed such a bias against his defense that they could not serve as fair and impartial jurors. Nonetheless, the Court has seen fit to fault Harville for failing to refute this aspect of the District Court‘s reasoning, and in the process has implicitly endorsed the rationale of the District Court that if a challenged juror‘s
¶21 As the Court notes at the outset of its discussion, the time-honored query in determining the suitability of a juror is whether voir dire has raised a serious question about a prospective juror‘s ability to be fair and impartial. If a serious question exists, then dismissal for cause is favored. See Richeson and Freshment as addressed in ¶¶ 9 and 13 of the Court‘s Opinion. The question has never been—until, arguably, today—whether the juror‘s beliefs, partial or not, are consistent with those held by society in general. Indeed, such a litmus test makes no sense. Presumably, every rational juror believes that assault, or theft, or murder is wrong. The point is not whether one believes such crimes to be wrong, the point is whether one‘s adamancy in this regard will color his or her judgment to the point that such person cannot with impartiality weigh the evidence against the accused. I fear this basic tenet will be lost on the reader of this Opinion, however, in light of our conclusion that Harville has failed to establish that the District Court erred in reasoning that these jurors were acceptable because they held beliefs consistent with those held by society as a whole. See ¶¶ 12 and 17.
¶22 We have today elevated to a position of serious consideration in the juror selection process the question of whether a juror‘s bias might be excused simply because it is one commonly held by society. This has never been our test and it is surely not the law. We have erred—and invite further error in the future—by doing so. I strongly dissent.