                                           Nu.06-840
               [h:THE SUPREME COVR'f OF THE STATE OF h,fONTANA

                                          2002 hlT 275


STATE OF MONTANA.

              Planltiff and Respondent,

         v.

BYRON K. WRIGIIT,

              Defendant and Appellant.




APPEAL FROM:         District Court of the Twelfth Judicial District:
                     111 and for the County of Hill,
                     tlonorable .lolin Warner, Judge Presiding


COUYSEL OF RECORD:

              For Appellant:

                     Jerenly S. Yelhn. Attoilley at Law, Fon Benton, blontana

              For Respondent:

                     fIonorable hlike McGrath, Attorney General; Jim Wheelis, Assistant
                     Attorney General; Helena, Montana

                     David G. Rice. C o ~ ~ nAttorney; Aileen Miller, Deputy County
                                             ty
                     Attorney, Havre, Montana


                                                    Submitted on Briefs: October 11 : 2001



tiled:
Justicc Jim Riel: deli\;ercd the Opinion ofthe Court.

"1     i h c .Appellant, Byron K, ivrght (VAigki), appeals froin tlie orders i.i:irrtd by :hi.

'iwclfih Judicial District C'oiirs, Hill Cbunty, denying his motion for striking rhi: cntirc jury

panel and his motion for a new trial. LVe affirm.

A2     Tlie sole issue on appeal is whether the District C'ourt abused its discretion by denying

both Wright's motion to strike the entire venire panel and lhis rnotion to grmr a new trial.

                   FACTU.41, AND PROCEDCRAI. BACKCZROUND

53     \Vright -+\'ascharged by i~iforniation January 6,2000, with two counts o f f riminal
                                            on

Sale of Dangerous [)rugs, a felony. in violation of 5 -15-9-101(4), t l C ' t t : and one count o f

Crin-rinal Posscssii>n of Dangerous Drugs, a felony, in violmtion of t; 45-9-102(1), ?vI,iC>i.

LVrighr pied not guilty to all three charges. A jury trial commenced on July 25,2000?ant! at

that time, LVright filed a Motion i n L,in~inesccking exclusion of all references, comments,

allusions, andior statenients regarding Wright's criminal history, prior con\-ictioos, and prior

contacts with law enhrccment. The I>istl-ictCourt granted Wright's motion. and the jury

selcctio~~
        process began.

71-1   The t-ionorable John Wamcr commenced voir dire by describing the chargcs against

LVright and asking preliminary iluestio~is tlie prospective jttrors, \$'hen questioned i f aiiy
                                         of

of the jurors knew Wright, prospective juror, Timothy Goggins (Goggins), rcspoildcd



       Goggins: I'm acquainted as a coworker korn the railroad. I also havc
       knolvledgc oEa case years ago that was involving Mr. N'right, whcre I was call
       as a jury [sic], but wasn't selected.
      The Courr: All right. So you know Mr. Wright. You have some idea of
      something. Do you have any opiniori about this case before Tve start the
      qucsiiotis6?Canyou just hear thc evidence, makc a decision based on what's
      presented in court herc today, not any prior performed opinion'?

      Goggins: 1 have knowicdge of
         . ~                           --- it   was the same things

      The Court: But there was no conviction tllere tlrai 1 knocv of or anything. See where
      we are herc is: Can you decide this case fairly'?

      Goggins: I ltave no knoi\ledge of this case.

       1 . ' e i u Your Honor, can I 'tpproach the bench. picaie?

      (Off the record d~scuss~on at the bench.)
                              held

      The Court: My question to you: Can you judge this case fairly, sir?

      Coggins: This case on its merits posstbly, although I do know

      The Court: I know you have said you have some prior knowledge. ! want to
      emphasize to all of the panel, that we all have a life. We are herc today o n
      only these allegations, only these allegations. And I just inquire of you, sir,
      can you judge this case fairly'?

      Goggins: I guess probably not

      The Court: All r~ght, 11 excuse you then rhank you for your candor
                          1'

7,5   il'hen defense counsel, Yellin, approached the bench. he requesred that the entrre

venire panel be dismissed. Then again after the State's voir dire, Wright's counsel moved

to dismiss the entire panel and also lzold indi~idualvoir dire on the basis of Goggins'

slatements about an earl~er
                          tr~al.The il~strtct
                                            C'ou~-t
                                                  denred both motlons, find~ng thc
                                                                             that

rrmaining prospective jarors l~ad bccn prejudiceci by the remarks
                                not
6         Durirrg voir dire, \%"right's counscl asked several prospective membe-.; ofthe vci~ire

pailcl how they liere affccied bq (ioggins' siatrrncnt, Phc prospeciivc jurors in essence

srated they bclievcd (;oggins' comments were inappropriate. After the jury was selccrcd,

tVrig1tt3strial commenced.

77        On July 26, 2000, the jury found it'riglit guilty on all three charges. Wright tiled a

motion for a new trial on the issue of jury misconciuct and prejudice on iiug~ist 2000.
                                                                                24,

After a lrcaring on Wright's ~ r ~ o t i othe ,District Court denied the motio:: for a nem- trial
                                           ~i

holding that LVright was not prejudiced. On Septeiliber 29, 2000. the Disxrict Court issued

a written order denying Wright's motion for a new trial. \&'right now appeals that order,

                                   STANDARD OF REVIEW

ql8       Granting o r denying a motion fbr a new trial is within the discretion ofthe irial couri-,

Section 40-1 0-702, MC.4, and Stufe v. (;czrnhrt~l
                                                 (lC)90)_ hlont. 84, 91, 803 P.Zd 1071,
                                                        240

1076. We have held that whezi the District Court has considered thc matier, whether on a

question for mistrial or motion for a new trial, this Court will not lightly disturb that ruling.

illiz.sniz v. Ijitrcl ( I 992), 255 Mont. 364, 842 P.2d 707, and Sfnic 1.. C,'ouuf.~I 984). 200 b."ionl.
                                                                                   (

232, 070 P.2d 1245. "'1'0 ovcrthrou it this Coue ~ ~ i t tbe show11by cvidcnce that is clear.
                                                          st

convirrcing, and practically fscc from doubt. of the error of the trial court's r~lling." 'vfasrirt

1,.   Ditzci, 255 Mont. at 370, 842 P.2d at 715: .Ct(~re Corrr~fx, FLlot~t. 748, 670 P.2d at
                                                       v.        209      at

                                       judge as to the impartiality of a.iury should not be sct
1248. "The decision of a district co~trt

aside u ~ ~ l etherc is clear abuse ofdiscrction." .';rcrre i t , Zkli,faho~l W j , 271 ilont. 75,78;
                ss                                                         (1
                                            ~ ~ ~ S ~ ~ ~ S § $ ~ X

'70       Did the District Court abuse its discretion by denying both Wright's motion lo strike

the entire venire panel and his motion to grant a new trial'?

qjl0      Wright argues that the District Court erred iii denying botli liis motion to strike the

entire venire paiiel and his motion for a new trial, tvliich were premised on the theory that

comments made by a prospective juror during voir dire poisoned the entire venirc panel. and

such comments can only be corrected by declaring a mistrial or granting a new irial.

      1   111   h,fct.Vfilii~n, reversed the trial judge's denial of the defendant's motion for a
                             we

mistriai based on comliicnts from several prospecri\~cjtirors
                                                            regarding their knowledge of the

defendant's violent tendencies and the expressed fear of the defendant by another prospective

juror because of the very assault and intimidation incidents at issue in the trial. ikfchfc~l~otz,

271 3lont. at 77-78, 894 P.2d at 315. tXowe\~er,tvc cautioned that our holding shit~~ld
                                                                                     be

intei-preted nau-rowly and rescrvcd only for the most egregious and prej~~iiicial
                                                                               prospccii\,e

juror comments, amorlnting to inadmissible opinions or comments aboi~t defeniliint's
                                                                     ihe

character or propensities, which could not he cured by admonishmetit or instruction from the

court Zltiliiiilotr. 271 Mont. at 81, 504 P.2d at 317

9 12      The %fc,tfcdlotl
                        C'ourt stated:

                 In Stirte 1. Iliuort (1094): 204 Mont. 38, 86WP.2d 779. wc upheld the
                            :
          conviction bvl~crethe prosecutor's improper comments v:erc considered
                                        in
          insignificant when vie\%-ed the context of the entire record. 'A:e noted that
       the judge instructed the jury not to usc cornnrerrts such as counsci's as
       evidence, and to consider only evidence when debating the verdict. in State
       t , i V ( i / ! ~ t i(1%Xhj, 222 Monr. 3-10. 722 P.2d 1145, the prc>secator made
        :
       potentially erroneous and prejudicial comments regarding presen'l"tii"n or
       evidence to the judge but the jtldge admonished the prosecutor, issued
       precautinnaiy statements to thejury; and thejury ultimately i-ejected several of
       the State's charges. In Stuie v. (;cIfJi,t-(l(1977). 172 Mont 380.563 P.2d 11 29:
       we held tl~at          non-responsive and prejudicial answers by a prospective juror
       were not cause for reversal when the defendant's motion was not made at the
       first recess following tlle answers and the answers had been in\.ited by further
       qucstior~s defense counsel. In State v. Khuo'es (1974). 164 Mont. 455, 524
                         of
       P.2d 1095; we held that a mistrial for prejudice against the defendants, caused
       by a juror's cornment, was not warranted because defense counsel did not
       makc a sufficient showing of prejudice.

,b/ch.lcrlrotz. 271 Wont. at 78-70, 894 P.2d at 315.       Vter analy/rng this plecedent, the

at~chl(zl~or~ conclttded that,
          Court

       [tJhesc cases dcnlonstrate a trend that improper comments by prosecutors or
       prospective jurors about tile defendant or about the evidence, arc not grounds
       for a mistrial /or a new trial] ifthe trial judge instructs the jury to disregard the
       questionable comment and if the court is satisfied that the juror can lay aside
       a fixed opinion and render a verdict solely on the evidence presented.

,1//c,bI~zlzotz,27 1 Mont. at 79, 894 P.2d at 3 16.

71 3    in State v N(1ger1 (1995), 273 Mont. 432, 903 P.2d 1381, tlagen argued tl~at uas
                                                                                   he

denied effective assistance of counscl when his trial counsel failed to object to a line elf

questions during voir dire which referred to Steve Jcnnctte (Jennette), a witness w i ~ o at
                                                                                        was

the ijagcn residence at the trme of the shootlug but not callcd at tr~al tcst~fy. During
                                                                       to

questioning of a prospective juror, the juror stated that he knew Jennette and had co~insclcd

Jcnnette after t l ~ e
                     shooting. The prospective juror s?atcd that he lraci received .'fiirst hand"

int'onnation concerrting the shooting from Jerinetrc during the corinseling sessions. iiigen,
271 hfont. at 341, 903 P.2d at 1387. iiiis Court distinguisi-icciZ ~ f ~ ; l ~ i ~ / Cram Xigeir.
                                                                                     iiiii          !i:


p          nci cvidcncc coi-icerning the siubsianci: of Jci~ncitc's cunversi~iionsx i t h the
 ,iigt:i.,~,



prospective juror \\-as prcsc~ited.During yuestioning, thc prosecution clicitcd informal ion

that the juror knew .lcnnette and had discussed tile sl-iootirig with him, but no facts pci.taining

to the incident were disclosed. 111i2.fcj2~1u11011.
                                                 several jurors made comments concerning the

defendant's poor character in the presence of the entire jurq- panel. '*Vc concluded in Ff~geil

tltat defense counsel's performance was not deficient because of his failure to object. ticrgen?

273 Mont. at 441, 903 P.2d at 1387.

!!I4    Serutinizi~lgthe eotn~nentsat issue in the present case and sct forth above. we

conclude that t l ~ c                                            and, as a resu!t, they did not
                    comments did not relate to Wright's cl~aractcr

co~istit~~te
         comments so egregious as to be incurable by the District C'ourt's ad~nonishment

to the jury to decide the case based or~ly tlre evidence presented during trial. 7'he
                                         on

extraneous information given by Goggins did not rise to tlie level of cfrcgiousrless

contemplated by this Court in 1\.,1ci1/1~1hon. jury panel could surmise from Goggins'
                                             The

remarks only that Wright had, at most, been charged with a similar crime in the past, not that

he had pled guilty or been corrvicted of a similar crime. While Goggins' remarks were

improper. the District Court's inquirywas sufticient to show the comments did not prejudice

the other menibers oftlie venire panel. The District Court correctly dismissed Goggins from

the panel and specifically questioned the remaining members of the panel ~tbout
                                                                              Goggins'

statements and their ability to fairly and impartiaily assess the case at hanci. Thc District
Court determined the renlaining rnc~nbcrs the jury panel had nut bccrr "'pcrisiined," ;rid
                                        of

scared:

                  The trial court has the abilitj to look into ihc eyes of cachrrnemhel. oE
          the jury pane!, and to cctnsider their rcsponscs in rile context of the courtrooin.
          Aftcr dismissing the juror, the court determined that the remaining pancl could
          render a fair and impartial decision, and that tile defendant was not prc~udiced
          by Prospective Juror No. 7's cornn~ents.This was further continned by the
          answers to questions posed by defense counsel eoiicerning this matter.

115
 1        Rely~ng ,Ytute 1, Lrrfilere, 2000 MT 45.298 Mont. 358.2 P.3d 204,' Vvnght argues
                on

that the alleged error during the jury selcctlon process in this instance requires an autorllatic

reversal of his conviction. In LuMcre, this Court distinguished trial error and structural error.

Trial error includes error which occtlrs during thc presentation of the case to the jury

Lcrhferc,   7 47.   Convcrsely, structural error affects the framework within which a trial

proceeds, rather than simply an crror witlrin the trial process itself. and is prcsurliprively

prejudrc~nl.Ln141e~-e, 48. The Lahlerc. Court held that a \ iolatlon of the J
                    "                                                                  L I surninontng
                                                                                            ~ ~


statutes was a structural error which required a new trial. L.ci/lktr.e, : 75
                                                                         [

216       Although Wright's interpretation of LuMere is correct, it is necessary for this Coun

to apply the I,~clbfcvw'Van Kirk analysis only if we determine an crt-or occurred in the first

instance. Because we Iiale rejected LVrlgltt's argutnent that the f>rstrtct Cortrt erred                in


deny~ng rtiot~ons strtkc the panel and to grant a nen inal, the structural crror aiialqsis
      his       to

is slot necessar) for resolution of this matter



        'f;ollowing the subniissio~i
                                   orbricfs in this rnartcrl the Coiirt dccidcd Sriric. 1.. Van Kip%:
2001 MT i83. 306 Mont. 2 i 5, 32 P.3d 715, which incorporated and furthered the Liitlcre
analysis iiiscusscd herein.
 I, 7
9Tl     The decision to grant or den>-a motion for a new trial is within the souncl discretirin

ofthe triai jiidgc. i;r~irihi-ei,236 Morrc. at (12, 8. P.?d at 10'',o. \;l'r wiii
                                                     03                             1o
                                                                                     :i   disturb ti:ai

decision abseit? a showing of' ahrise of discretion. l\fc.kfal~o~~; Monr, at 58, 804 P.2cl at
                                                                271

3 i5:and we find the actions of the District Court here were sou:~d.We hold that the District

Coun did not abiise its discretion by dcnving Wright's motions to strike the entire venire

patrei and to grant a new trial. We affirm.




\\'e concur:
