*1 MONTANA, STATE OF Appellee, Plaintiff and NORQUAY, CURRY JAMES Appellant. Defendant DANo. 08-0634. March 2010. Submitted on.Briefs April Decided 2010. 25,May Rehearing Denied
JUSTICE NELSON dissented. Defender, Hunt, Lisa S. Joslyn Appellate Chief Appellant:
For Defender, Helena; Jason T. Korchinski, Appellate Assistant Law, P.C., Falls. Holden, Attorneys at Great Faure Holden General, Bullock, Attorney Montana Hon. Steve Appellee: For Parker, General, Helena; John Paulson, Attorney John Assistant Attorney, County Attorney, Thompson, Deputy Joel County Falls. Great of the Court. Opinion
JUSTICE COTTER delivered judgment (Norquay) appeals Curry James sentencing Court, Eighth conviction and order of the Judicial District felony, County, aggravated burglary, violation of 45-§ 6-204(2)(b),MCA, restraint, misdemeanor, and unlawful in violation 45-5-301, MCA. affirm. We appeal: We review the issue on Did the District Court abuse its discretion when it denied *2 Norquay’s jury motion a mistrial based on the panel selection the ? for
FACTUAL AND PROCEDURAL BACKGROUND charged assault, The State Norquay aggravated burglary, ¶4 invasion, kidnapping Norquay’s for role in a home assault on the homeowner, and Norquay’s jury abduction of the homeowner’s child. trial for charges began September these 2008. During day trial, voir dire on the first of Norquay’s counsel for
¶5 Norquay raised a concern way County about the in which the Cascade (Clerk) Clerk of Court had jury panel. selected the The had panel been registered that, drawn from the list of argued voters. Counsel due to change law, a recent in the jury was entitled to a panel drawn drivers, a from list that included licensed as registered well as those (2007). 61-5-127(1), to vote. See MCA § He maintained that the law concerning jury panel selection had changed May and that County had not complied with the revised law. Counsel subsequently moved for a mistrial based on the fact jury panel that the potential jurors excluded who held driver’s licenses but were not registered to vote. The District Court asked the Clerk testify about the selection
process. The Clerk testified that panel Norquay’s for trial had been from a list of pulled registered voters. She stated that she had received registered combined list of voters and licensed drivers from the Secretary May 2008, of State’s Office in required by the new law. She did not download the list into her computer system immediately, Instead, however. she contacted the Supreme Court Administrator’s Office for technical representative assistance. A from the Administrator’s Officeadvised the Clerk not to download the combined list until November because County jury starts the selection process anew in year. jury November of each term begins the March and runs for one The Clerk testified that she had discussed this matter further with the Administrator’s Office and was told that only the new law required Secretary that the of State’s Office May release the new list in 2008, and that the did county law not mandate that using clerks start it was her The Clerk testified time. any specific list at the new jury term for the annual jury panels list to form use the new plan to in March beginning three anywhere from her that it takes further testified The Clerk process questionnaires, jury notices to send out
to four months preparations office, complete her returned to information acknowledged March. She beginning term for the new required and that different times terms at their counties start that other already. list using the might have started counties some other ruling denying an oral issued subsequently The District 61-5-127(1), examined The court for a mistrial. Norquay’s motion “shall submit of Justice MCA, Department provides which databases list, department’s prepared secretary of state cards, of Montana identification and holders licensed drivers all licensed drivers name, address, and date of birth of showing the sentence of cards.” The last identification and holders of Montana the exclusive provided list must be “[t]he states that jurors for the as trial persons to serve making list purpose added.) ensuing year.” (Emphasis MCA, Secretary of State “shall Moreover, 3-15-402, under § make a electors and registered list of all from the most recent
select *3 jurors.” to serve as trial qualified of all persons list of the names compiled list this list with the Secretary must then combine of State on or before 61-5-127(1), MCA, and deliver it to the Clerk pursuant § 3-15-403, MCA. Monday May. See the first intended, and the “Legislature that The court concluded ¶11 the first combined provides, current law that express language of the by Secretary of to the Clerks of Court jury provided list would be The court Monday May [2008].” State, on or before the first list it use the combined determined that “the Clerk would Jury Panel May prepare received, for the first time in ensuing year, which in this case would list for the from the combined essence, Court concluded that year 2009.” In the District [be] calendar list to deliver the combined Secretary required of State was while to use the list May 2008, required the Clerk was not to the Clerk in jury term. the 2009 annual jury panel list for compiled until she is, Legislature [sic] that “the effect of this The court stated for period advance essentially, a six-month process, has built into this Secretary May of state in of Court to receive the list the Clerk for the implemented it to be prepare that list and year, process of each court, January.” According to year starting in ensuing calendar therefore, “ensuing year” ensuing year. meant calendar Norquay’s jury trial proceeded after the ¶12 District Court had denied his motion for a mistrial. The assault charge was dismissed. The ultimately found guilty aggravated burglary and unlawful restraint. Norquay appeals.
STANDARD OF REVIEW
A district court’s decision on a
motion for a mistrial must be based
upon whether the party has been
trial,
denied a fair and impartial
the decision on the motion is reviewed to determine whether the court
abused its
White,
discretion. State v.
129, 8,
184 P.3d
(citing
Dubois,
Mont.
82).
We observe that Norquay
lists two applicable standards ofreview.
He states that “[t]he standard of review for denial of a motion for a
mistrial is whether there is clear and convincing evidence that the
district comb’s ruling is erroneous.” His next paragraph, however,
begins with the statement: “A
grant
district court’s
or denial of a
motion for a mistrial
is reviewed for an abuse of discretion.” We
Partin,
concluded in State v.
(1997),
DISCUSSION Did the District Court abuse its discretion when it denied Norquay’s motion a mistrial based on the selection the panel ? Norquay argues on appeal that the District Court erred in interpreting references to “ensuing year” in the applicable statutory scheme to mean ensuing calendar Norquay contends that “[n]owhere in the statutes concerning jury selection does it state ‘ensuing year’ means ‘ensuing year’ calendar concluded district court.” Norquay maintains that earlier versions ofthe statutes support the position that ensuing year means “beginning in June.” According Norquay, therefore, the Clerk failed to substantially *4 comply with the governing jury statutes selection. “That the clerk’s office did not attempt even to follow the law is more than a mere technical irregularity and evades the substantial compliance standard.” Norquay directs our LaMere, attention to State v.
117 (“A to 358, comply 2 substantial failure 45, 57, P.3d 204 298 ¶ nature or that affects the ‘random encompasses a violation ” States v. (quoting United objectivity process.’ of the selection (5th 1977))), that 608, argues and the Kennedy, F.2d Cir. structural selecting jury panel constitutes Norquay’s Clerk’s error impartial he not receive a “fair and error. maintains that did He to the District Court’s jury panel.” trial or asks this Court reverse motion for denying order his a mistrial. parties Court that the agree We District by “ensuing in this is meant the term
dispositive issue
case is what
61-5-127(1), MCA,
compiled
list “must
year.” Section
states
be
a
making
persons
exclusive
list of
serve
provided
purpose
for the
added.)
The
jurors
ensuing year.” (Emphasis
as trial
for the
“ensuing year.”
define the
scheme does not
term
the party
to demonstrate an abuse of discretion is on
The burden
Devlin,
18,
seeking
ruling.
of an
State v.
reversal
unfavorable
Price,
79,MT
15,
67,
(citing
State
349 Mont.
P.3d 791
¶
45).
331 Mont.
We observe that where
¶
term,
key
subject
key
does not define a
and where
term is
two
interpretations,
heavy
the defendant carries
plausible
different
District Court
its discretion.
burden to demonstrate that the
abused
McCarthy, 2004 MT
state annual at begin their terms times of Clerk that she different.” She they’re testified had “been advised all previously [the had attended the Clerk’s and “some Convention discussing they having with” the problems counties] were were using jury list. She testified that some counties were combined some, County, not. combined list in June like Cascade were *5 118 Having carefully case, reviewed the record in this
¶22 District order, and the parties, briefs of both we conclude that District Court did not abuse its in denying Norquay’s discretion motion “ensuing year” ambiguous, for a mistrial. The term is and has carry failed to his burden to demonstrate the District Court abused its discretion in interpreting scheme at issue and denying his motion for a mistrial.
CONCLUSION The District Court did not abuse its discretion when it denied Norquay’s motion for a mistrial based on the manner of selection of the jury panel. Affirmed. McGRATH,
CHIEF JUSTICE LEAPHART, MORRIS, JUSTICES WHEAT and RICE concur. NELSON,
JUSTICE dissenting. I Respectfully, dissent from the Court’s decision. First, disagree I with the Court’s standard of Opinion, review. In trial, the context of ¶ motions for a new this Court has explained that our standard of depends review on the basis of the motion. See Kelsey, Giambra v. 24-27, 338 2007 MT 19, 162 Mont. P.3d 134 (clarifying that our standard of review of a trial ruling court’s aon motion for a trial insufficiency new based on novo, of the evidence is de not discretion, manifest abuse of given that the trial court’s conclusion as to whether sufficient evidence exists to convict is ultimately an analysis and application of the facts, law to the not a matter of discretion). The principle same necessarily applies to motions for a mistrial: the standard of depends review on the basis of the motion and, in particular, process the district court applies in resolving Indeed, that motion. the standard of in any given review depends case on the particular posture of arguments, the issues and just not on how party’s motion happens to be captioned or denominated. For example, in State v. Shively,
732, the explained:
Given the particular posture of the issues and arguments, and
our resolution
appeal by
this
an interpretation
theft
statute, we have not cited the standard of review for challenges sufficiency
evidence,
under which we review the
light
evidence in a
most favorable to
prosecution
determine whether a
[sic]
rationale
trier of fact could have found
the defendant guilty
beyond
of the crime
a reasonable doubt. The
ultimately
us to review
Shively
require
not
does
issue raised
here, raised
legal
issue
evidence, we review
therefore
novo
correctness.
de
interpretation,
matter
omitted).
added; citation
(emphases
Shively, ¶
is, likewise,
one
present
in the
case
issue
dispositive
does not
that a trial court
It is axiomatic
statutory interpretation.
Either the court’s
a statute.
interpreting
discretion when
exercise
is involved.
correct,
No discretion
or it
isn’t.
interpretation
Shively, 13;see also State
de novo.
our review here is
Accordingly,
(“[T]he
P.3d 819
Triplett,
a matter of law
we
of a statute is
and construction
applied
interpreted
district court
whether the
review
Shultz,
411, 6, 353
*6
novo.”);Funke v. Estate
correctly
¶
de
of
(“Our
interpretation
ofreview of the
492,
184 P.3d 288, standard of 1, support P.3d of the abuse of discretion 13,19. all, may this standard be traced to Opinion, First of review. ¶¶ 15-18, 1002, (1997), Partin, 951 P.2d 1004-05 respect review with straightened out the standard of where we erroneously admitted evidence. We for a mistrial based on motions trial” standard impartial the “denial of a fair explained grant a mistrial when a trial court determines whether applies by the defendant and that we review moved for or consented to ruling under this standard for an abuse of discretion. trial court’s erroneously is whether question These standards make sense when trial is misstep during or some other the course of admitted evidence at issue. here, alleged an defect in the trial dealing But we are jury), (specifically, composition itself with the
mechanism
subject
subjective
to a
it is
that such defects are not
well-settled
impartial
a fair and
analysis
the defendant was denied
of whether
Kirk,
184, 39, 306
32 P.3d
trial. See State v. Van
¶
in the
error include errors
selection
(“Examples
of structural
LaMere,
26, 39-50, 298Mont.
process....”);
State
(errors
jury-selection process
proposition that a ambiguous, when statute is a defendant “carries heavy burden to demonstrate that the District Court abused its Where, here, discretion.” Opinion, subject a statute to more than conflicting one reasonable but interpretation, ambiguous it is legislative history we resort to and intent to the ambiguity. resolve As Johnston, we stated in State v.
925: purpose
Our construing statute is to ascertain the legislative give intent and effect to the legislative will. We by looking first to the plain statute’s language, and if the language unambiguous is clear and no further interpretation is terms, required. however, Weresolve ambiguous by looking to the structure, purpose legislative history a statute to and/or Legislature. determine the intent Johnston, omitted). added; 26 (emphasis citations Applying then, precedents, our we should review the District And, de given novo. that the statute ambiguous, at issue is structure, we should look to the purpose, and *7 legislative history of the statute to determine the Legislature’s intent. There is simply using no basis for an abuse of discretion standard. Second, in addition review, to the Court’s standard disagree I with the indisputable construction. It is that the Legislature’s intent in amending 61-5-127, 3-15-402 to -404 and §§ MCA, jury was to increase the pool so as to include only registered not voters but also licensed Legislature clearly drivers. The intended to broaden the cross section ofthe community jury duty available for actually serving juries. on Additionally, legislative history discloses that the purpose moving up timing list/term was so jury-selection process could begin a month earlier and terms could run concurrently county’s with the fiscal See Mont. Comm., H. Jud. Jury 341,60th Revise Hearing Leg., Pool Laws: onHB (Jan. 2007). Sess., 17 at 3 Reg. Ex. little history, it makes intent and legislative that stated With her or be able to establish clerk of district court should that each
sense jury list sent out use the combined when to his own rules vis-a-vis Yet, holding today-namely, under the Court’s Secretary of State. year and following calendar encompasses both the “ensuing year” that effectively our June, have abdicated Opinion, in 20-we beginning district court to each clerk of duty the statute allowed interpret to county. particular mean for her or his phrase will choose what Court year,” as the District Thus, mean “the calendar it could in June,” argues, “beginning surmised, “beginning jury-selection November,” County’s correspond to March,” County’s jury with the “beginning correspond process, And, term, given this Opinion, or some other date. See ¶¶ an holding, it makes little sense for me to offer and, thus, my district court “ensuing year,” as I am not clerk of irrelevant, the 22 any also no better than one of opinion only is not but opinions. district court clerks’ personnel Supreme it is unfortunate that from While legal advice to the Office offered what amounts to
Administrator’s interpret County Clerk of District Court on how 6-7, issue, that does not Opinion, amendments at see relying Giving the Clerk of District Court from on advice. excuse ambiguous county statutes for elected interpret advice about how to A Court Administrator’s Officestaff. job Supreme officials is not the if or he is confused about clerk of district court well knows that she statute, legal advice from the she or he should seek how 7-4-2711(2)(a), adviser, attorney. MCA county’s legal county See § (“The fee, an county attorney give, required shall... when without district, county, township officers on opinion writing to the ,...”).1Indeed, respective to the duties of their offices relating matters County Attorney that the Cascade was under the record here reflects County Clerk of District Court had that the Cascade impression jury venire from the combined voterflicensed-driver Norquay’s drawn list, of District Court should requires, as the law and that the Clerk may And, county attorney inquiry, opinion an be if the is unable to answer 2-15-501(7), requested Attorney General. See MCA. *8 drawing the list.2
have known better not combined County A criminal defendant in Cascade is entitled to the same County a criminal defendant in Toole or benefit law as County County. or Each clerk of district court is Yellowstone Missoula authority or Each not a law unto herself himself. does not have to according her his the law to or own convenience and availability provincial practice. application of the law is not subject judicial to some sort of “luck of the rule as to the draw” district in which crime was committed. jury-selection It is that errors in the are process well-established errors, no-harm, analysis.
structural
which are not amenable to
no-foul
VanKirk,
38-39;LaMere,
26, 39-50.Structural errors are defects
¶¶
¶¶
such,
proceeds.
they
the framework within which
trial
As
proceeding
undermine
fairness of the entire trial
and are
Thus,
presumptively prejudicial.
jury-selection process
errors
Kirk,
38-39;LaMere,
require
26, 48;
a new trial. See Van
see also
¶¶
Lamere,
115,
State v.
2005 MT
327 Mont.
District did not get being by the benefit of tried broad cross section of the community Legislature mandated. structural, This error is and Norquay is entitled to a trial.3 new I would reverse and remand for new trial. I dissent from our failure to do so. involving This is not the first case to come before this Court errors of the County by drawing juries according Clerk of District Court’s office caused its extra-legal procedures. Robbins,
to its convenience and its own
See State v.
23,
359;
LaMere,
292 Mont.
2000 MT
P.3d
204;
State,
Robbins v.