                                          No. 05-600

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 173

                                                  ____________________________________

STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ROGELIO IBARRA-SALAS,

              Defendant and Appellant.

                                                  ____________________________________


APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and for the County of Gallatin, Cause No. DC 04-183,
                     The Honorable Holly Brown, Presiding Judge.


COUNSEL OF RECORD:

              For Appellant:

                     Christopher K. Williams, Attorney at Law, Bozeman, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant
                     Attorney General, Helena, Montana

                     Marty Lambert, Gallatin County Attorney; Todd Whipple, Deputy County
                     Attorney, Bozeman, Montana
                                                 ____________________________________

                                                       Submitted on Briefs: September 20, 2006

                                                                       Decided: July 17, 2007

Filed:

                   _____________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

¶1       Rogelio Ibarra-Salas (Ibarra-Salas) appeals from an order of the Eighteenth

Judicial District Court, Gallatin County (District Court), denying his motion for a new

trial. We affirm.

¶2       We restate and address the following issues on appeal:

¶3       1. Did the District Court err in not granting Ibarra-Salas’ motion to continue the

trial?

¶4       2. Was Ibarra-Salas’ trial counsel ineffective because he did not question

prospective jurors concerning ethnic bias or prejudice?

¶5       The State filed an Information charging Ibarra-Salas with criminal distribution of

dangerous drugs, a felony, in violation of § 45-9-101, MCA. The State alleged that on

November 12, 2003, Ibarra-Salas and a co-defendant, Dustin White (White), sold

methamphetamine to White’s sister, who was a confidential informant.

¶6       The day before trial, trial counsel for Ibarra-Salas filed a motion for sanctions --

either in the form of dismissal of the charge or a continuance of the trial. He claimed that

despite numerous requests, the State failed to make two witnesses available for

interviews.

¶7       The District Court held an immediate hearing on the motion. After hearing from

counsel and other witnesses concerning the conduct of discovery, the District Court

determined the witness interviews did not occur because of scheduling conflicts and

miscommunication. The District Court found that the prosecution did not attempt to

cause delay by avoiding meetings or hindering the disclosure of information and

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therefore denied Ibarra-Salas’ motion to dismiss the charge as a sanction.

¶8     Ibarra-Salas’ motion for continuance was based on his counsel’s alleged need to

interview the two previously unavailable witnesses and to prepare for trial. After making

sure the witnesses were available to be interviewed that day, the District Court denied

Ibarra-Salas’ motion for a continuance.

¶9     In ruling on the motion, the District Court stated:

       In regard to the continuance, I am also going to deny the continuance. This
       case has been set for trial for some time. And while I appreciate that you
       (defense counsel) have been very diligent in pursuing your discovery
       efforts, because we have had the numbers of hearings and the discovery
       requests, I am going a bit on faith that the information that you will receive
       from the two witnesses that you will presumably have available to you by
       this afternoon, will be cumulative or at least consistent with the information
       that you’ve previously been provided. If that does not turn out to be the
       case, then I would expect that you can document that, either by motion or
       through cross-examination testimony, through the trial.

       The trial is currently scheduled for two days. I will be as flexible as we
       need to be to allow you extra time to prepare for the examination of either
       of those witnesses should you need extra time. And we will accommodate
       whatever other arrangements the Court can make to allow you to proceed
       with the case.

¶10    On the first day of trial, counsel for Ibarra-Salas renewed his request for a

continuance based on insufficient time to prepare to conduct jury voir dire. The District

Court stated it would stand by the rationale of its previous ruling and denied the motion.

¶11    Ibarra-Salas is of Hispanic descent. He had the assistance of a Spanish-English

interpreter during the trial. During voir dire, counsel for both Ibarra-Salas and the State

questioned the jury panel concerning its ability to be fair and impartial jurors in a drug

trial. Neither party questioned prospective jurors about ethnic or racial bias during voir


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dire. Counsel for Ibarra-Salas was successful in challenging two prospective jurors for

cause.

¶12      The jury found Ibarra-Salas guilty of Criminal Distribution of Dangerous Drugs in

violation of § 45-9-101, MCA. Ibarra-Salas filed a motion for a new trial, which the

District Court denied as untimely. After the entry of judgment, Ibarra-Salas appealed.

¶13      The decision to grant or deny a motion for a continuance is within the discretion of

the district court. State v. DeMary, 2003 MT 307, ¶ 24, 318 Mont. 200, ¶ 24, 79 P.3d

817, ¶ 24; § 46-13-202(3), MCA. This Court will not overturn a district court’s decision

to deny a motion for continuance unless the district court abused its discretion and the

ruling prejudices the defendant. DeMary, ¶ 24. Ibarra-Salas argues the District Court

abused its discretion when it denied his motions for a continuance.

¶14      Ibarra-Salas cites to nothing in the record to support his contention that his counsel

was not prepared to conduct jury voir dire, or that he was unable to present any evidence

or was unable to effectively cross-examine a witness because he was unprepared. Also,

even though the District Court said that it would be inclined to grant a motion for a delay

during the trial if Ibarra-Salas’ counsel needed more time, Ibarra-Salas did not move the

District Court for additional time. We will not reverse an order of the District Court

denying a motion for a continuance when a party fails to cite a portion of the record

which indicates an abuse of discretion. M. R. App. P. 12(1)(f).

¶15      Ibarra-Salas also claims that the District Court erred because it did not recess the

trial and conduct a separate hearing to determine if his lawyer was unprepared. He

attempts to analogize his counsel’s request for a continuance to a situation in which a

                                               4
defendant claims ineffective assistance of counsel and requests new counsel. It is true

that when a defendant presents a “seemingly substantial complaint” about counsel and

requests a different lawyer, the Court should hold a hearing on the request for substitution

of counsel. City of Billings v. Smith, 281 Mont. 133, 136, 932 P.2d 1058, 1060 (1997).

However, Ibarra-Salas made no request for substitution of his trial counsel and thus no

hearing was necessary.

¶16    Ibarra-Salas then argues that because he is a Hispanic person, and thus a member

of a minority group, his counsel’s failure to question prospective jurors about ethnic or

racial bias denied him both his constitutional right to an impartial jury and to the effective

assistance of counsel.

¶17    A criminal defendant in a state court is guaranteed an impartial jury by the Sixth

Amendment to the United States Constitution, as applicable to the States through the

Fourteenth Amendment. A defendant is also guaranteed an impartial jury by Article II,

Section 24 of the Montana Constitution. State v. LaMere, 2000 MT 45, ¶ 35, 298 Mont.

358, ¶ 35, 2 P.3d 204, ¶ 35; Ristaino v. Ross, 424 U.S. 589, 595 n. 6, 96 S. Ct. 1017, 1021

n. 6 (1976) (citations omitted). Voir dire in a criminal proceeding requires adequate

questioning to assure counsel’s ability to challenge a prospective juror for cause. State v.

LaMere, 2005 MT 118, ¶ 15, 327 Mont. 115, ¶ 15, 112 P.3d 1005, ¶ 15; State v.

Herrman, 2003 MT 149, ¶ 23, 316 Mont. 198, ¶ 23, 70 P.3d 738, ¶ 23.

¶18    In the federal courts, there is no constitutional presumption of juror bias for or

against members of any particular racial or ethnic group. See Rosales-Lopez v. United

States, 451 U.S. 182, 191, 101 S. Ct. 1629, 1636 (1981). Nor has this Court ever

                                              5
established such a presumption. We agree with the United States Supreme Court that in

the heterogeneous society of this country, policy and constitutional considerations

militate against a per se rule that justice “in a court of law may turn upon the

pigmentation of skin, the accident of birth, or the choice of religion.” Ristaino, 424 U.S.

at 596 n. 8, 96 S. Ct. at 1021 n. 8.

¶19    In the federal court system, unlike Montana, judges rather than attorneys generally

conduct voir dire examination. Fed. R. Civ. P. 47(a); Fed. R. Crim. P. 24(a); § 46-16-

114, MCA. Federal trial courts must accede to a criminal defendant’s request that

prospective jurors be questioned about racial or ethnic bias only when (1) racial issues are

inextricably bound up with the conduct of the trial and (2) there are substantial

indications of the likelihood of racial or ethnic prejudice affecting the jurors in the

particular case. Ristaino, 424 U.S. at 596-97, 96 S. Ct. at 1021-22 (citing Ham v. South

Carolina, 409 U.S. 524, 93 S. Ct. 848 (1973)). The “critical factor” is whether racial

issues are inextricably bound up with the conduct of the trial. Rosales-Lopez, 451 U.S. at

189, 101 S. Ct. at 1635 (1981); See Ham, 409 U.S. at 526, 93 S. Ct. at 850. These

considerations comport with Article II, Section 24, of the Montana Constitution, are

understandable and we shall utilize them in making the determination whether Ibarra-

Salas was denied a fair trial by an impartial jury.

¶20    In the present case, there is no indication that any ethnic or racial issues were

intertwined with the charged drug offense, that the alleged offense was racially

motivated, or that an ethnic issue was in any way connected with the trial.

¶21    Also, Ibarra-Salas’ defense did not introduce any ethnic or racial issue into the

                                              6
trial.   Ibarra-Salas’ counsel argued that his client was merely present in White’s

apartment during the methamphetamine sale, that he had no involvement with the sale

and that the drug deal was between White and White’s sister. The defense did not relate

to any ethnic or racial issue, and was thus not likely to intensify any bias or prejudice that

individual members of the jury might harbor. See Ristaino, 424 U.S. at 596-97, 96 S. Ct.

at 1021.

¶22        There is no indication in the record of ethnic or racial bias on the part of a

witness, an attorney, the trial judge, a member of the Court staff or any member of the

venire panel. Ibarra-Salas was not denied his right to an impartial jury.

¶23      As there is no record of any ethnic or racial issue in the case, we conclude that

defense counsel’s performance did not fall below the range of competence required of

attorneys in criminal cases simply because he did not question prospective jurors about

possible ethnic bias or prejudice.      Thus, Ibarra-Salas was not denied the effective

assistance of counsel. See LaMere, ¶ 8; Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052 (1984).

¶24      Affirmed.

                                                  /S/ JOHN WARNER


We Concur:

/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE



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