                                                                                              06/23/2020


                                            DA 18-0664
                                                                                          Case Number: DA 18-0664

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           2020 MT 162N



CLARENCE EDWARD CHAMPAGNE,

               Petitioner and Appellant,

         v.

STATE OF MONTANA,

               Respondent and Appellee.


APPEAL FROM:           District Court of the Twelfth Judicial District,
                       In and For the County of Hill, Cause No. DV 13-184
                       Honorable Robert G. Olson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Samir F. Aarab, Boland Aarab PLLP, Great Falls, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Michael P. Dougherty,
                       Assistant Attorney General, Helena, Montana

                       Karen Alley, Hill County Attorney, Havre, Montana



                                                    Submitted on Briefs: April 22, 2020

                                                               Decided: June 23, 2020


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice Dirk Sandefur delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, we decide this case by memorandum opinion. It shall not be cited and does not

serve as precedent. The case title, cause number, and disposition will be included in our

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Clarence Edward Champagne (Champagne) appeals the judgment of the Montana

Twelfth Judicial District Court, Hill County, denying his petition for postconviction relief

on the offense of sexual assault, a felony. We affirm.

¶3     Following a four day trial in August 2011, a jury returned a verdict adjudicating

Champagne guilty of sexually assaulting the ten year-old granddaughter of his ex-wife.

Over a year earlier, upon notice of selection for non-specific jury service, a jury venireman

who was a serving United States Border Patrol agent submitted a sworn request for

permanent excusal from jury service on the asserted ground that he was “a federal law

enforcement officer and feel I may be biased in a criminal trial.” Upon denying the

requested excusal, the District Court advised the agent of the opportunity to “make your

comments to the attorneys at trial” when summoned to serve in a particular case and that

the court would then “consider a[ny] request outlining your circumstances.”

¶4     On or about June 7, 2011, upon being summoned for jury service, the Border Patrol

agent returned the standard form, non-case-specific juror qualification questionnaire form

sent to prospective jurors for the Champagne trial. Inter alia, the agent’s answers disclosed




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that he was employed by the U.S. Border Patrol and had been previously involved in “a

lawsuit” incident to his Border Patrol employment.

¶5     On or about July 21, 2011, the agent returned answers to a supplemental

questionnaire setting forth 38 questions in specific regard to the upcoming Champagne

trial. Inter alia, the agent’s answers again disclosed his employment as a Border Patrol

agent and further unequivocally stated that he would have no problem following the court’s

instructions regarding the presumption of innocence or the State’s burden of proof. His

answers stated that he understood that the defendant did not have to prove his innocence,

his failure to testify would not “affect [the agent’s] determination of the case,” the agent

had no “religious, moral, or ethical beliefs that would prevent [him] from . . . [serving] in

a criminal case and rendering a fair verdict,” and there was no “other reason [the agent]

could not be a fair juror in a criminal case.” The agent stated that there was: (1) nothing

else that he thought “should be brought to the court’s attention that might affect [his] ability

to . . . [be] fair and impartial”; (2) no other “matter not covered by th[e] questionnaire that

the attorneys or court would want to know when considering [him] as a juror in this case”;

(3) no “reason [he] could not be fair to [either party] in th[e] case”; and (4) no “answer . . . in

th[e] questionnaire that [he] would prefer to discuss [privately] with the judge and

attorneys.”

¶6     During voir dire, the Border Patrol agent similarly gave no indication of any bias or

prejudice against Champagne, sex case defendants, or criminal defendants in general. In

response to the State’s query as to whether there was anything about the case that made

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him “want to run for the hills,” the agent replied, “[n]ot really.” Defense counsel did not

specifically question the agent about his law enforcement background or any related

potential for general or specific bias or prejudice in this case.

¶7     Prior to exercise of peremptory challenges, the court allowed defense counsel to

conduct individual voir dire of a number of potential jurors who may have heard a reported

lunch break statement by another referencing his or her jury duty and stating that he or she

thought Champagne was “guilty of child molesting.” During his individual voir dire, the

Border Patrol agent gave the following answers, inter alia:

       [Agent]: It was mentioned to me in passing over the lunch break, or
                whatever that somebody had checked on the internet and said there
                might have possibly been a previous assault conviction. So I
                figured that it was pertinent to what you were asking. So I thought
                that I would bring that up. . . .

       [State]: So you haven’t done any independent investigation and found any
                information?

       [Agent]: No.

       [State]: Looked on line, checked court records, any of that kind of thing?

       [Agent]: Negative.

       [State]: So at this point, you don’t have any, you have no idea whether
                that’s accurate or inaccurate information?

       [Agent]: Like I said, it was just mentioned to me in passing during lunch.

       [State]: Is that mentioned to you in passing at lunch going to affect your
                ability to be fair to both the State and the Defendant today?

       [Agent]: No, not really.

                                           .   .   .
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       [Defense counsel]: So, after having heard that, you’re not making any
                          assumption about Mr. Champagne?

       [Agent]: No.

After the parties exercised their respective peremptory challenges, the Border Patrol agent

remained and was seated as the second juror on the final jury panel.

¶8     Following closing arguments, the jury quickly returned a guilty verdict. Champagne

timely appealed.    We affirmed the conviction but remanded for a proper restitution

determination.     State v. Champagne, 2013 MT 190, 371 Mont. 35, 305 P.3d 61.

Champagne later filed a pro se petition for postconviction relief on the asserted ground that

he received ineffective assistance of counsel (IAC) in violation of the United States and

Montana Constitutions. He claimed that defense counsel was ineffective based on the

failure to properly investigate his case, conduct voir dire regarding the apparent bias of the

Border Patrol agent, disclose a conflict of interest, and move for suppression of the adverse

testimony of his ex-wife based on spousal privilege. The District Court summarily

dismissed three of the asserted IAC claims as facially deficient but ordered the State to

respond to the voir dire claim.

¶9     Incident to responding to Champagne’s petition, the State obtained the affidavit

testimony of defense counsel by court order pursuant to In re Gilham, 216 Mont. 279, 282,

704 P2d 1019, 1021 (1985). In his Gilham affidavit, defense counsel stated that he recalled

that several law enforcement officers were among the Champagne jury venire and that one

of them remained on the final jury. He had no specific recollection, however, as to whether

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the remaining officer was the Border Patrol agent later at issue. Counsel stated that he

similarly had no recollection as to whether he specifically examined the Border Patrol agent

about potential law enforcement bias, thus assumed that he had not, and, if not, that it was

a mistake not to do so. The District Court ultimately denied Champagne postconviction

relief on the ground that he failed to establish either required element of an IAC claim. The

court reasoned that, despite the agent’s prior statement a year earlier, his more specific and

unequivocal statements on the actual trial record manifested that any potential bias or

prejudice “was not actually fixed” and that the agent could be a fair and impartial juror if

selected to serve in the Champagne trial.

¶10    The standard of review for a denial of a petition for postconviction relief is whether

the lower court’s conclusions of law are correct and whether its related findings of fact are

clearly erroneous in the light most favorable to the conviction.          Whitlow v. State,

2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861; In re Jones, 176 Mont. 412, 415,

578 P.2d 1150, 1152 (1978). However, a postconviction petition based on alleged IAC

presents mixed questions of law and fact reviewed de novo. Whitlow, ¶ 9; State v. Turner,

2000 MT 270, ¶ 47, 302 Mont. 69, 12 P.3d 934. See also Strickland v. Washington,

466 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984).

¶11    The Sixth and Fourteenth Amendments to United States Constitution, and Article II,

§ 24 of the Montana Constitution, similarly guarantee criminal defendants the right to

effective assistance of counsel. Whitlow, ¶ 10; State v. McElveen, 168 Mont. 500, 501-03,

544 P.2d 820, 821-22 (1975); Strickland, 466 U.S. at 686, 104 S. Ct. at 2063 (citing

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McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 (1970)). The

performance of counsel is constitutionally ineffective only if both deficient and prejudicial.

State v. Herrman, 2003 MT 149, ¶ 17, 316 Mont. 198, 70 P.3d 738. A performance is

constitutionally deficient only if it “fell below an objective standard of reasonableness

measured [by] prevailing professional norms” under the totality of the circumstances at

issue. Whitlow, ¶ 20. Accord Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. A deficient

performance was prejudicial only upon a showing of a reasonable probability that the

outcome would have been different but for the deficient performance. Ariegwe v. State,

2012 MT 166, ¶¶ 15-16, 365 Mont. 505, 285 P.3d 424; Heath v. State, 2009 MT 7, ¶ 17,

348 Mont. 361, 202 P.3d 118; Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The

performance of counsel is presumed constitutionally effective—IAC claimants bear the

heavy burden of overcoming that strong presumption. Whitlow, ¶¶ 20-21; Strickland,

466 U.S. at 689, 104 S. Ct. at 2065.

¶12    Here, Champagne asserts that defense counsel’s performance was constitutionally

ineffective due to failure to specifically voir dire the Border Patrol agent regarding his

previously stated bias against criminal defendants and to, at least, strike him from the

venire by peremptory challenge. However, as a threshold matter, Champagne has not

shown that it was unreasonable under the circumstances for defense counsel either to not

know about the agent’s non-case related statement a year earlier or, if he knew about it, to

not question him about it.




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¶13    Moreover, if otherwise statutorily qualified to serve, a prospective juror is subject

to disqualification only if he or she has formed a “fixed opinion[] on the guilt or innocence

of the defendant” or the totality of his or her responses indicates a “serious question”

regarding the “ability to be fair and impartial.” State v. Russell, 2018 MT 26, ¶ 14,

390 Mont. 253, 411 P.3d 1260 (internal citations omitted). See also § 46-16-115(2)(j),

MCA (disqualification based on “state of mind” regarding issue or party precluding “entire

impartiality and without prejudice to the substantial rights”). Here, the agent’s statement

in a jury service excusal request a year earlier was not an unequivocal statement of a fixed

bias or prejudice. On its face, it was no more than an equivocal, non-case-specific

statement of possible bias against criminal defendants in general, without regard to

Champagne or the nature of the allegations against him. As noted by the District Court,

the agent’s more recent and case-specific statements in his supplemental pretrial

questionnaire unequivocally disclaimed any potential negative bias or prejudice regarding

Champagne, the allegations against him, or his trial rights. The agent’s subsequent record

conduct and responses during voir dire likewise gave no indication of negative bias or

prejudice against Champagne or any inability or unwillingness of the agent to be a fair and

impartial in this case.

¶14    We recognize that, in an abundance of caution, criminal defense counsel often

closely examine and peremptorily strike law enforcement officers from jury service.

However, the mere fact that a prospective juror is a law enforcement officer or otherwise

connected with law enforcement does not, without more, per se render that person unable

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to be a fair and impartial juror in a criminal case. State v. Deschon, 2004 MT 32, ¶ 41,

320 Mont. 1, 85 P.3d 756 (internal citations omitted). Here, counsel’s after-the-fact

statement in a Gilham affidavit, that it was a mistake not to specifically examine the Border

Patrol agent about potential law enforcement bias, is insufficient without more to render

his failure to do so constitutionally deficient or prejudicial.

¶15    Under the totality of the circumstances in this case, Champagne has failed to clearly

demonstrate that his counsel’s failure to examine the Border Patrol agent about his earlier

statement of potential bias against criminal defendants, examine him about law

enforcement bias in general, or to at least peremptorily strike him was either

constitutionally deficient or prejudicial. We hold that the District Court did not erroneously

deny postconviction relief to Champagne.

¶16    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent.

¶17    Affirmed.

                                                   /S/ DIRK M. SANDEFUR

We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JIM RICE

Justice McKinnon was the trial judge on this case prior to joining this Court and thus did
not participate in this decision.

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