                                                                                           March 20 2013


                                         DA 12-0111

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 74N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MICHAEL WAYNE MCDONALD,

              Defendant and Appellant.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 10-291
                       Honorable Edward P. McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender; Lisa S. Korchinski, Assistant
                       Appellate Defender; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant
                       Attorney General; Helena, Montana

                       Fred R. Van Valkenburg, Missoula County Attorney; Shawn Thomas,
                       Deputy Missoula County Attorney; Missoula, Montana

                                                  Submitted on Briefs: February 27, 2013
                                                             Decided: March 19, 2013



Filed:

                       __________________________________________
                                         Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

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

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

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

¶2     Michael Wayne McDonald (McDonald) appeals from a final judgment entered by the

Fourth Judicial District Court, Missoula County. The issue presented on appeal is whether

the District Court abused its discretion in denying McDonald’s challenge for cause of a

prospective juror. We affirm.

¶3     McDonald was charged with two counts of felony incest. Trial commenced in

February 2011. During voir dire, when asked if she would be a suitable juror, prospective

juror Lewis stated: “I’m not sure. I think that I can be impartial. However, knowing the

statistics on domestic violence and sexual abuse cases, it seems that the question isn’t

whether the girls have been molested. It’s a question of whether or not Mr. McDonald was

the perpetrator.” In response to further questioning from the defense and the court, Lewis

stated that she had not made up her mind and could be fair and impartial. McDonald moved

to excuse Lewis for cause which was denied.

¶4     A prospective juror may be challenged and excused for cause if the court determines

that the prospective juror “[has] a state of mind in reference to the case or to either of the

parties that would prevent the juror from acting with entire impartiality and without

prejudice to the substantial rights of either party.” Section 46-16-115(2)(j), MCA. In

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determining whether a prospective juror should be excused for cause, the court must consider

both the statutory requirements and the totality of the circumstances. St. Germain v. State,

2012 MT 86, ¶ 65, 364 Mont. 494, 276 P.3d 886 (citing State v. Normandy, 2008 MT 437, ¶

22, 347 Mont. 505, 198 P.3d 834; State v. Robinson, 2008 MT 34, ¶ 8, 341 Mont. 300, 177

P.3d 488). If the totality of a prospective juror’s responses raises serious questions about

their ability to be fair and impartial, the juror should be removed. St. Germain, ¶ 65. If,

however, the prospective juror merely expresses concern about impartiality but believes they

can fairly weigh the evidence, the court is not required to remove the juror. St. Germain, ¶

65.

¶5     “Jurors should be disqualified based on their prejudices only where they have ‘formed

fixed opinions on the guilt or innocence of the defendant which they would not be able to lay

aside and render a verdict based solely on the evidence presented in court.’” State v. Hart,

2009 MT 268, ¶ 13, 352 Mont. 92, 214 P.3d 1273 (internal quotation omitted). We give

deference to district courts who sit in a “peculiarly advantageous position,” wherefrom they

may observe a juror’s demeanor, expression, and manner of answering questions in order to

discern the true bias of a potential juror. Hart, ¶ 13.

¶6     In this case, Lewis never stated or inferred that she had a fixed opinion about

McDonald’s guilt. Lewis stated that she “[had not] made up [her] mind,” that she “[could]

be impartial, and . . . openly listen to the case,” and that she could be fair. The court excused

nine other prospective jurors for cause because of statements about their ability to be fair and

impartial. In Lewis’s case, however, the court decided based on the totality of the
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circumstances that Lewis was qualified to sit as a juror. Under the circumstances of this

case, we have determined that the District Court did not abuse its discretion when it denied

McDonald’s challenge for cause of prospective juror Lewis.

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

Internal Operating Rules, which provides for noncitable memorandum opinions.

¶8     Affirmed.


                                                        /S/ MICHAEL E WHEAT


We Concur:

/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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