                                                                                               03/07/2017


                                          DA 14-0487
                                                                                           Case Number: DA 14-0487

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 54



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

DENIS AGUADO,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-Second Judicial District,
                       In and For the County of Stillwater, Cause No. DC 12-23
                       Honorable Randal I. Spaulding, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Colin M. Stephens, Smith & Stephens, P.C, Missoula, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                       Assistant Attorney General, Helena, Montana

                       Nancy L. Rohde, Stillwater County Attorney, Columbus, Montana



                                                   Submitted on Briefs: January 18, 2017

                                                               Decided: March 7, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    Appellant Denis Aguado (Aguado), appeals his convictions of Sexual Abuse of

Children and Sexual Assault upon A.M., after jury trials in the Twenty-Second Judicial

District Court, Stillwater County, arguing the court erred by not substituting his defense

counsel, incorrectly applying the “Rape Shield” statute, improperly removing Juror

No. 5, and giving an incorrect unanimity instruction. We affirm and address these issues:

      1. Did the District Court err by not substituting Aguado’s counsel?

      2. Did the District Court violate Aguado’s confrontation rights by excluding
      evidence pursuant to § 45-5-511(2), MCA?

      3. Did the District Court err by dismissing Juror No. 5 in the second trial?

      4. Did the District Court err by not giving a more specific unanimity instruction?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2    Aguado and his then-wife, Patricia Aguado (Patricia), lived in Columbus,

Montana. A.M., Patricia’s granddaughter, moved into Aguado and Patricia’s home when

she was young due to her mother’s inability to care for her. As such, A.M. was raised by

Patricia and Aguado and considered Aguado to be a grandfather figure.

¶3    In June or early July, 2012, during a family vacation to Montana from Kentucky,

Patricia’s children, Ashley Sexton (Ashley) and Ricky Mills (Ricky) (A.M.’s aunt and

uncle), observed interactions between Aguado and A.M. that raised suspicions regarding

the relationship between them. As was usual each summer, A.M. returned with Ashley to

Kentucky to spend time with her family there, including A.M.’s brother, T.M., who was

being raised by Ashley. During a drive to Wal-Mart, Ashley asked A.M. “if there was
                                        2
anybody that was trying to touch her or make her do things she didn’t want to do.” A.M.

told Ashley that Aguado “had tried to force himself on her thrusting his hand down her

pants and threatened to kill Patricia and A.M. if she told anyone.” A.M. told Ashley

about a “sex contract” she had signed with Aguado as a means to get Aguado to stop his

sexual actions. She said the document was hidden under her mattress at Aguado and

Patricia’s home in Columbus. Ashley informed Ricky about A.M.’s disclosure and the

two of them proposed that A.M. record a phone call between her and Aguado after A.M.

informed them that Aguado would talk about sex with her on the phone.

¶4     Ricky set up recording equipment on the phone and A.M. made a call with Ashley

present for support. The conversation became sexually explicit, with Aguado asking

A.M. if they were “still on” for doing the “full fuck” and the “Big Lick” when she

returned to Montana, and later asking A.M. if she was “ready for a full fuck?”, saying

that she was “gonna love it, baby.” Aguado told A.M. that she “need[ed] to [have sexual

intercourse] as much as you can the first two weeks” to alleviate any pain and said that he

would “take care o’ ya” because he knew “how to do it where it ain’t gonna bother you

that much.” A.M. was thirteen years old at the time of the phone call.

¶5     After the phone call, Ashley, Ricky, and another family member drove to Montana

to inform Patricia and attempt to find the “sex contract” A.M. had described. Upon

arriving, Ricky found the document where A.M. said it would be. The next day, Ricky

advised Patricia of A.M.’s allegations and played the recording of Aguado and A.M.’s

telephone conversation. Later that day, Ricky, Ashley, and Patricia made an initial report

                                         3
to the Stillwater County Sheriff’s Department and, the following day, fully reported the

incident and turned over the recording and “sex contract” to authorities. Aguado was

arrested that day and later charged with Sexual Abuse of Children and Sexual Assault.

¶6    At the two trials, A.M. testified that Aguado had showed her pornographic videos

when she was six years old and began touching her inappropriately about the same time.

A.M. testified that Aguado touched her private parts “[p]retty much almost every day,”

which often occurred in the car or A.M.’s bedroom. A.M. also testified to multiple

instances of sexual assault, some involving Aguado’s use of force and A.M.’s active

resistance. A.M. testified the “sex contract” stated she “had to go all the way and [do a]

big lick” with Aguado on a given day and that Aguado had her sign it “[b]ecause he

would always ask for something and I would say ‘I promise,’ when I really didn’t want to

do it. And I would always lie when I’d say ‘I promise’, to him, so he made me write it

down.”

¶7    The jury found Aguado guilty of Sexual Abuse of Children, but hung on the

charge of Sexual Assault. The State pursued a second trial on the Sexual Assault charge,

after which the jury found Aguado guilty.       Aguado appeals.      Additional facts are

discussed as necessary.

                             STANDARDS OF REVIEW

¶8    A request to substitute counsel is within the sound discretion of the district court,

reviewed for abuse of discretion. State v. Cheetham, 2016 MT 151, ¶ 13, 384 Mont. 1,

373 P.3d 45 (citing State v. Edwards, 2011 MT 210, ¶ 14, 361 Mont. 478, 260 P.3d 396).

                                         4
¶9     We review a district court’s application of a statute for correctness. State v.

Colburn, 2016 MT 41, ¶ 6, 382 Mont. 223, 366 P.3d 258 (citing Beehler v.

E. Radiological Assocs., P.C., 2012 MT 260, ¶ 17, 367 Mont. 21, 289 P.3d 131).

¶10    The trial court has discretion to remove a juror and seat an alternate juror

whenever the facts show the juror’s ability to perform his duties is impaired. State v.

Grindheim, 2004 MT 311, ¶ 18, 323 Mont. 519, 101 P.3d 267 (citing State v. Pease, 222

Mont. 455, 470, 724 P.2d 153, 162-63 (1986)). The reviewing court will not disturb the

ruling unless the defendant shows bias or prejudice. Grindheim, ¶ 18 (citing Pease, 222

Mont. at 470-71, 724 P.2d at 163).

¶11    We review jury instructions to determine whether, as a whole, they fully and fairly

instruct the jury on the applicable law. State v. Dunfee, 2005 MT 147, ¶ 20, 327 Mont.

335, 114 P.3d 217 (citing State v. Courville, 2002 MT 330, ¶ 15, 313 Mont. 218, 61 P.3d

749). A district court has broad discretion when it instructs the jury. State v. Hall, 2003

MT 253, ¶ 24, 317 Mont. 356, 77 P.3d 239 (citing Courville, ¶ 15). To constitute

reversible error, jury instructions must prejudicially affect the defendant’s substantial

rights. Courville, ¶ 15 (citing State v. Goulet, 283 Mont. 38, 41, 938 P.2d 1330, 1332

(1997)).

                                     DISCUSSION

¶12    1. Did the District Court err by not substituting Aguado’s counsel?

¶13    Aguado argues the District Court improperly denied his two requests for

substitution of counsel. He argues the multiple complaints he made about his public

                                         5
defender, Gregory Paskell (Paskell), and the evidence adduced at two hearings

demonstrate that tension and conflicts of interest existed between Aguado and Paskell

such that Paskell should have been replaced. The State counters that Aguado did not

demonstrate to the District Court that “Paskell was operating under an actual conflict,”

nor that counsel’s performance was affected by the claimed conflict.

¶14      After the first trial, Aguado filed a motion to substitute counsel, asserting that

Paskell had communicated with the prosecution without authorization, was excessively

argumentative, refused to file certain motions, refused to provide adequate investigative

and professional services, and aided in violating Aguado’s rights due to excessive bail.

Aguado stated he had filed a complaint with the Office of Disciplinary Counsel (ODC)

against Paskell and, as such, must be given a private attorney because all public defenders

were likewise conflicted.        The District Court scheduled a hearing to inquire into

Aguado’s claims and ordered Paskell to respond to the allegations, issuing a Gillham1

order that stated “[t]o the extent that defense counsel . . . necessarily reveals confidential

information,” he would not be subject to disciplinary proceedings.

¶15      During the hearing, the District Court addressed Aguado’s allegations

individually, allowing Aguado to fully state his concerns on each one. However, Aguado

was unable to provide specifics and admitted he actually had not filed an ODC complaint

against Paskell. Aguado then claimed he had not received all of the discovery documents

and that Paskell would not provide him additional copies of documents.


1
    In re Gillham, 216 Mont. 279, 704 P.2d 1019 (1985).
                                             6
¶16    Pursuant to the District Court’s request, Paskell responded and stated that he had

spent over 400 hours in this case and was not Aguado’s first attorney. Aguado had

initially hired a private attorney who withdrew before Paskell was appointed as his public

defender.   Paskell stated that the prior attorney had done little preparation and that

Paskell needed the first continuance he had requested to be adequately prepared for trial.

Paskell noted the motion to suppress he had filed as a result of the continuance was

successful in suppressing much of the evidence against Aguado.2 Paskell stated that

Aguado has “alleged various kinds of conspiracies and issues concerning the production

of the phone conversation, the sex contract and other matters” but that those allegations

had been fully investigated. Regarding Aguado’s discovery concerns, Paskell stated that

discovery documents are provided “as a matter of rule and policy” by the Office of Public

Defender (OPD) and “everything that comes into the office goes right to the client.”

Regarding the copies Aguado had alleged Paskell would not make for him, Paskell stated

that the documents in question regarded Aguado’s insurance issues, and that OPD did not

have resources to make copies for other matters. Paskell explained that he had filed some

motions on Aguado’s behalf, but that he believed others to be potentially irrelevant, and

that certain witnesses Aguado wanted called would provide only duplicative testimony.

Finally, Paskell noted that Aguado’s concern that he was delaying the trial was incorrect

because “[e]verything that we did for Mr. Aguado proved somewhat if not successful.”


2
  Paskell’s motion resulted in an order suppressing the evidence from Aguado’s laptop and a box
found in an outbuilding, called a “rape kit” by the parties, that contained items associated with
sexual activity.
                                             7
Paskell stated that he could represent Aguado effectively, and Aguado stated that he

could continue with Paskell “[i]f need be.”

¶17    The District Court denied Aguado’s request for substitution, concluding that he

had failed to raise “seemingly substantial” complaints and had “not demonstrated that

there has been a total breakdown in communication between he and attorney Paskell.”

¶18    Shortly before the second trial, Paskell sent a letter to the District Court “to advise

the court on certain matters of importance” and that Paskell had permission from Aguado

to speak with the District Court about these matters. Paskell stated that Aguado wanted

new counsel and that Aguado planned, on the first day of trial, to fire Paskell. Paskell

stated Aguado wanted a continuance to further analyze the evidence, and that Aguado

claimed Paskell had conspired with the State to conceal documents from Aguado.

¶19    The District Court conducted a hearing and heard Aguado’s complaints against

Paskell. The hearing considered both the request for new counsel and Aguado’s motion

to continue the trial.   Aguado stated that Paskell had provided him a copy of his entire

case file, which he claimed had 5,000 documents. In the file, Aguado had found a copy

of Ricky’s phone bill, which he claimed was never provided to him despite repeated

requests.   Noting research contained in the file regarding federal communications

statutes, Aguado claimed the phone call between he and A.M. was illegally recorded and

should have been suppressed. Aguado claimed that “Mr. Paskell deliberately withheld

those documents from me. For what reason, I have no idea. It’s been prejudice against

me and the same with the State prosecutors.”

                                          8
¶20    In response, Paskell stated that he had made a complete copy of his file to give to

Aguado, but it contained 300 or 400 pages of discovery, not 5,000. He explained that he

and Aguado disagreed on whether federal statute precluded introduction of the evidence.

He also reiterated that the OPD has procedures to provide copies to clients and was “very

confident” this had been done for Aguado.

¶21    The District Court explained to Aguado that if it were to deny his request for

substitution of counsel, he would have either the choice of continuing with Paskell or

representing himself, and explained the risks of self-representation. The court asked

Aguado if he could continue to work with Paskell, and Aguado responded that he had lost

trust in Paskell. Paskell stated he was “willing to continue to represent [Aguado].”

¶22    The District Court issued an order concluding that Aguado “has once again failed

to raise a seemingly substantial complaint in regards to his attorney” and denied the

motion. The District Court stated Paskell has “been a consummate professional and has

zealously and effectively represented the Defendant since day one.”

¶23    Criminal defendants have a fundamental right to effective assistance of counsel.

U.S. Const. amend. VI; Mont. Const. art. II, § 24; State v. Happel, 2010 MT 200, ¶ 14,

357 Mont. 390, 240 P.3d 1016. “However, ‘the right to assistance of counsel does not

grant defendants the right to counsel of their choice.’” State v. Dethman, 2010 MT 268,

¶ 15, 358 Mont. 384, 245 P.3d 30 (quoting State v. Craig, 274 Mont. 140, 149, 906 P.2d

683, 688 (1995)); accord Cheetham, ¶ 18.          “When a defendant complains about

ineffective assistance of appointed counsel and requests new counsel, a district court

                                         9
must make ‘adequate initial inquiry’ as to whether defendant’s allegations are ‘seemingly

substantial.’” Dethman, ¶ 16 (quoting Happel, ¶ 14; State v. Gallagher, 1998 MT 70,

¶ 15, 288 Mont. 180, 955 P.2d 1371).         “A district court conducts ‘adequate initial

inquiry’ when it considers the defendant’s factual complaints together with counsel’s

specific explanations and makes some sort of critical analysis of the complaint.”

Dethman, ¶ 16 (quoting Happel, ¶ 14). A district court conducts an inadequate inquiry

where it “fails to conduct ‘even a cursory inquiry’” into the defendant’s allegations.

Cheetham, ¶ 20 (quoting State v. Schowengerdt, 2015 MT 133, ¶ 17, 379 Mont. 182, 348

P.3d 664).

¶24   We have explained that, to obtain substitution of counsel, the defendant bears the

burden of proving: (1) “complete collapse of the attorney-client relationship”; (2) “total

lack of communication”; or (3) “ineffective assistance of counsel [IAC].” Cheetham,

¶ 19 (citing Edwards, ¶ 32; State v. Kaske, 2002 MT 106, ¶ 30, 309 Mont. 445, 47 P.3d

824). A complaint is “seemingly substantial” if it provides a legitimate concern about

any of these grounds.

¶25   However, an inquiry into a complaint of ineffective assistance for purposes of

substitution of counsel should not become Strickland litigation to resolve the merits of

such claims. As we stated in Cheetham:

      A claim of ineffective assistance based on differences between the
      defendant and his counsel about trial strategy and production of evidence is
      available in, and better suited for, a postconviction proceeding where
      counsel may divulge more freely—with appropriate safeguards (In re
      Gillham, 216 Mont. 279, 282, 704 P.2d 1019, 1021 (1985))—his or her
      communications with the defendant and strategic decisions.
                                        10
Cheetham, ¶ 29; see also Cheetham, ¶ 39 (McKinnon, J., concurring) (“While precedent

regarding ineffectiveness claims informs our understanding of the right to substitution, a

judge should not be required to conduct a collateral proceeding during the pendency of a

trial, which is more appropriately handled through a postconviction proceeding.”). While

the court may need to inquire sufficiently of the defendant and counsel to determine

whether a complete collapse of communication or of the relationship has occurred, this

should not necessitate the issuance of a Gillham order. Cheetham, ¶ 29 (“By its terms,

the procedure we directed in Gillham applies to petitions for postconviction relief when a

response from defense counsel is necessary.”). The appropriate time for an evaluation of

the merits of an ineffectiveness claim is either on direct appeal, if the IAC claims are

record-based, or in a postconviction proceeding if the grounds are not record-based.

State v. Howard, 2011 MT 246, ¶ 21, 362 Mont. 196, 265 P.3d 606 (“When claims of

ineffective assistance are capable of resolution by examining the record alone, they are

appropriate for consideration on direct appeal.”); State v. Herrman, 2003 MT 149, ¶ 24,

316 Mont. 198, 70 P.3d 738 (“[I]f the Court cannot make that determination from the

record before it, then it must decline to proceed further and allow the defendant to raise

his ineffective assistance of counsel claim in a petition for postconviction relief.”). “In

reviewing a district court’s inquiry [regarding a substitution of counsel request], we do

not examine whether counsel was ineffective, but instead, whether the district court’s

inquiry into the claim was adequate.” Cheetham, ¶ 20 (citing State v. MacGregor, 2013

MT 297, ¶ 25, 372 Mont. 142, 311 P.3d 428). “It is within the sound discretion of the
                                        11
district court to rule on requests for appointment of new counsel.” State v. Hendershot,

2007 MT 49, ¶ 23, 336 Mont. 164, 153 P.3d 619; accord Gallagher, ¶ 10; Craig, 274

Mont. at 149, 906 P.2d at 688.

¶26    Here, the District Court conducted considerable inquiries into Aguado’s

complaints, working methodically through all of them. The complaints from Aguado and

the responses from Paskell both indicate there was conflict and disagreement regarding

how to conduct the case. However, there is ample evidence that Paskell and Aguado

were able to communicate, no evidence that Paskell had a true conflict that would prevent

him from representing Aguado, and no legitimate concerns that Paskell was providing

ineffective assistance. Indeed, Paskell effectively obtained an order suppressing evidence

against Aguado, and the first trial ended in a hung jury on one of the counts. The District

Court did not abuse its discretion in determining that Aguado’s complaints were not

seemingly substantial and in denying his substitution motion.

¶27 2. Did the District Court violate Aguado’s confrontation rights by excluding
evidence pursuant to § 45-5-511(2), MCA?

¶28    The State filed a motion in limine to exclude any evidence regarding A.M.’s

sexuality, including any specific acts with others. Aguado opposed the motion, arguing

that A.M.’s sexual orientation provided context to the phone call between them.

Particularly, as stated in his offer of proof, Aguado sought to introduce evidence that

A.M. was being bullied at school for her bisexual orientation and that she planned to go

on an overnight camping trip to have sex with a boy to alleviate bullying on the issue.

Aguado alleged that, when A.M. asked to go on the camping trip, he and Patricia had
                                        12
denied permission, after which A.M. had allegedly told Aguado “maybe I should fuck

you.” Aguado argued that A.M. made statements to Aguado that led him to believe that

she was planning to have sex with her half-brother and another unnamed male while in

Kentucky. For what it was worth, Aguado wanted to argue to the jury that, in light of this

evidence, the phone call between he and A.M. must be understood as him encouraging

A.M. to return to Montana so they “could further discuss the bullying, her response to it

and her possible involvement with others sexually in order to prevent inappropriate

sexual choices.”

¶29    The District Court granted the State’s motion, reasoning that Aguado’s offer of

proof did not “rebut, contextualize, or explain” the statements made during the phone call

and that “the evidence appears primarily to be directed at sullying the victim’s character

by painting her an overly sexualized, lesbian or bisexual teenage girl and placing her on

trial, the very thing prohibited by § 45-5-511.” The District Court held:

       The defense may not offer nor suffer to be offered any evidence concerning
       the victim’s prior sexual conduct, except with the defendant, or prior
       instances of sexual abuse of the victim, if any. Such prohibition shall
       include any reference to the victim’s sexual orientation, sexualized or
       flirtatious behavior, and/or purported desire or plan to have sex with
       anyone, aside from the Defendant.

¶30    Despite this ruling, the District Court permitted significant context evidence to be

introduced by Aguado. In the first trial, Aguado elicited testimony from A.M. that she

was being bullied for “weird choices” she had made, and that Aguado had denied her

request to go to the park because of his assertion that she was going to “have sex with

boys there.” Aguado testified about A.M.’s bullying and that she had a solution which,
                                         13
Aguado believed, was for A.M. to have sex with a male. He also testified that he

believed A.M. was going to have sex with someone in Kentucky and that his intent

during the recorded phone call “was to get her to come back here to Montana. And to—I

just played along with her, pretty much” in order to get her away from the drinking,

drugs, and “heavy sexual activities” down in Kentucky. Aguado testified similarly in the

second trial:

         What you heard on the tape, to be blunt, is what she wanted. Okay?
         Everything you heard on that tape, she didn’t back off nothing. You can
         tell by her tone. You could tell she was asking me. What you heard on that
         tape was what she wanted. It’s not what I wanted. It’s what she wanted. I
         was playing into her, is what I was doing.

On appeal, Aguado argues the District Court should have allowed him to go further into

the “exact nature” of the bullying, i.e., that A.M. was bisexual in orientation.

¶31      Under the Sixth Amendment to the United States Constitution and Article II,

Section 24, of the Montana Constitution, a defendant has the “right to confront his

accusers.” Colburn, ¶ 24 (citing State v. MacKinnon, 1998 MT 78, ¶ 33, 288 Mont. 329,

957 P.2d 23). Similarly, a defendant has a right to “present evidence in his defense.”

Colburn, ¶ 24 (citing State v. Johnson, 1998 MT 107, ¶ 22, 288 Mont. 513, 958 P.2d

1182).

¶32      Montana’s Rape Shield Law provides:

         Evidence concerning the sexual conduct of the victim is inadmissible in
         prosecutions under this part except evidence of the victim’s past sexual
         conduct with the offender or evidence of specific instances of the victim’s
         sexual activity to show the origin of semen, pregnancy, or disease that is at
         issue in the prosecution.

                                          14
Section 45-5-511(2), MCA.

¶33    “Neither the Rape Shield Law nor the defendant’s right to confront and present

evidence are absolute.” Colburn, ¶ 25 (citing MacKinnon, ¶ 33 (“[L]imiting the scope of

cross-examination does not necessarily violate a defendant’s right to confront an adverse

witness.”); Johnson, ¶¶ 22-23 (“We have held that the Sixth Amendment right of

confrontation is not absolute and that the Rape Shield Law serves a compelling state

interest in preventing rape trials from becoming trials on the prior sexual conduct of the

victims.”)). As we held in Johnson, “state and federal rules excluding evidence from

criminal trials do not abridge an accused’s right to present a defense so long as they are

not arbitrary or disproportionate to the purposes they are designed to serve.” Johnson,

¶ 22 (citing United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 1264 (1998)

(“A defendant’s right to present relevant evidence is not unlimited, but rather is subject to

reasonable restrictions. . . .    [W]e have found the exclusion of evidence to be

unconstitutionally arbitrary or disproportionate only where it has infringed upon a

weighty interest of the accused.”)). Thus, to resolve the tension between the defendant’s

right to present a defense and the victim’s rights under the statute, the district court must

“strike a balance in each case.” Colburn, ¶ 25 (citing State v. Lindberg, 2008 MT 389,

¶ 53, 347 Mont. 76, 196 P.3d 1252). The balancing must “require that the defendant’s

proffered evidence is not merely speculative or unsupported.” Colburn, ¶ 25 (citing

Johnson, ¶ 24; Lindberg, ¶ 56). Further, in accordance with the M. R. Evid., the district

court should “consider whether the evidence is relevant and probative; whether the

                                         15
evidence is merely cumulative of other admissible evidence; and whether the probative

value of the evidence is outweighed by its prejudicial effect.” Colburn, ¶ 25 (internal

citations omitted). All balancing is done with the intent to “ensure a fair trial for the

defendant while upholding the compelling interest of the Rape Shield Law in preserving

the integrity of the trial and keeping it from becoming a trial of the victim.” Colburn, ¶ 25

(citing State v. Anderson, 211 Mont. 272, 283, 686 P.2d 193, 199 (1984)).

¶34    Here, the District Court reviewed Aguado’s context theory and determined that the

evidence was not being offered to “rebut, contextualize, or explain” the statements in the

phone call, but served to prejudice A.M. First, the theory was speculative. If A.M. was

indeed bisexual, having sex with a male may have done nothing to alleviate bullying over

a bisexual orientation. Indeed, it may have provided reason for further negative attention,

especially if committed with her grandfather. And, Aguado told A.M. in the phone call

that no one would know they had sexual intercourse, which would also defeat Aguado’s

theory. Second, Aguado’s context theory conflicts with the actual conversation during

the phone call. Aguado did not play along with a plan proposed by A.M. Rather,

Aguado raises the subject of sex by asking A.M. if “we’re still on” and if she’s ready for

“full” sexual activity.   The District Court was correct—Aguado’s purpose was to

prejudice A.M. in the eyes of the jury. Finally, the District Court allowed much of what

Aguado wished to introduce, only excluding A.M.’s sexuality. Accordingly, the District

Court did not abuse its discretion and there was no error.




                                         16
¶35    3. Did the District Court err by dismissing Juror No. 5 in the second trial?

¶36    During jury selection in the second trial, the District Court asked each prospective

juror whether “anyone had a close family member or they themselves been sexually

abused or accused of such.” A number of potential jurors indicated they met the criteria

and each was individually questioned in chambers.        However, Juror No. 5 did not

respond in the affirmative and was eventually seated on the jury.

¶37    After the prosecution had given its opening statement, but before presenting

evidence, a Columbus police officer advised the prosecution that Juror No. 5’s son had

previously been convicted of a sexual offense. The State informed Judge Spaulding, who

questioned the juror. Juror No. 5 acknowledged that his son had been convicted of

statutory sexual intercourse without consent. He explained that he did not disclose the

conviction during voir dire because he “didn’t picture it as a sexual assault. It was

boyfriend-girlfriend. He was a year or so older than the girlfriend.” He assured the court

that he could judge the case impartially.

¶38    The State was concerned that the juror had not disclosed the incident during voir

dire in response to the question asking for such disclosure. The State advised the court

that it would likely have used a preemptory challenge to strike the juror had it known this

information during voir dire, and asked the District Court to excuse him and seat the

alternate juror. Aguado argued that Juror No. 5’s assurances that he could be fair and

unbiased were sufficient. The District Court dismissed Juror No. 5 because he had failed




                                            17
to disclose his son’s conviction and seated the alternate to “avoid absolutely any

argument that anything improper has occurred here.”

¶39    On appeal, Aguado argues that the District Court abused its discretion in seating

the alternate juror because the State only learned about the lack of disclosure due to the

“knowledge of law enforcement” and none of the information came to light during voir

dire. Aguado adds that Juror No. 5 did not “willfully or intentionally withhold material

information” and assured the District Court that he could be unbiased.

¶40    Montana Code provides that, “[a]lternate jurors, in the order in which they are

called, shall replace jurors who, prior to the time the jury arrives at its verdict, become

unable or disqualified to perform their duties.” Section 46-16-118(3), MCA. “The trial

court has discretion to remove a juror and seat an alternate juror whenever the facts show

the juror’s ability to perform his duties is impaired.” Grindheim, ¶ 18 (citing Pease, 222

Mont. at 470, 724 P.2d at 162-63).

¶41    In Pease, the district court replaced a juror during the trial after learning he was

soon to be arrested for a felony he had confessed to. Pease, 222 Mont. at 469-70, 724

P.2d at 162.   The State moved to disqualify the juror, arguing he may be “overly

sympathetic to the defendant or he may vote for a conviction to gain leniency from the

State.” Pease, 222 Mont. at 470, 724 P.2d at 162. We held that the defendant had to

demonstrate “bias or prejudice,” such as “discharge of a juror for want of any factual

support, or for a legally irrelevant reason,” in seating the alternate juror. Pease, 222

Mont. at 470-71, 724 P.2d at 163. Ultimately, we concluded that there was not an abuse

                                        18
of discretion and that the district court had provided a “legal reason” for the discharge.

Pease, 222 Mont. at 471, 724 P.2d at 163.

¶42    Here, the District Court’s questions revealed that Juror No. 5 may have not been

truthful during voir dire, and that the State would likely have used a preemptory

challenge had the truth been told. The District Court determined that the lack of candor

during voir dire was a sufficient basis to justify seating the alternate juror. Jurors may be

removed for cause for a variety of reasons, including “for any other reason that the court

determines.” Section 46-16-115, MCA. “Although a defendant is entitled to an impartial

jury, he has no right to a particular juror.” State v. Bearchild, 2004 MT 355, ¶ 21, 324

Mont. 435, 103 P.3d 1006 (citing State v. LaMere, 2000 MT 45, ¶ 37, 298 Mont. 358, 2

P.3d 204). Aguado passed the alternate for cause and the District Court had a good legal

reason and factual support to seat the alternate. Accordingly, the District Court did not

abuse its discretion.

¶43    4. Did the District Court err by not giving a more specific unanimity instruction?

¶44    Aguado argues that the District Court improperly instructed the jury when it

utilized the pattern unanimity instruction from the Montana Pattern Jury Instructions.

Aguado alleges the problem with the instruction, given the “sheer volume of allegations

put forth by A.M. that could be see[n] to constitute the offense of sexual assault,” is that

it did not “sufficiently instruct the jury . . . that it must unanimously decide on the exact

when and where of the single count that constitutes the offense.” The State argues that

the allegations here likely satisfy our holding in State v. Harris, 2001 MT 231, ¶ 15, 306

                                         19
Mont. 525, 36 P.3d 372, abrogated in part on other grounds by Robinson v. State, 2010

MT 108, ¶ 12 n.1, 356 Mont. 282, 232 P.3d 403, that where “persistent illegal acts were

so frequently perpetuated and so closely connected as to be properly viewed as a single,

continuous, running offense” no unanimity instruction is needed, but that, even so, the

instruction given was adequate and “in no way compromised Aguado’s guilty verdict.”

¶45    In State v. Weaver, 1998 MT 167, 290 Mont. 58, 964 P.2d 713, we held that, when

a defendant is charged “with a series of unrelated allegations of sexual misconduct taking

place over a period of years,” the district court, “where appropriate,” must issue a

unanimity instruction. Weaver, ¶¶ 38-39. We later clarified that holding in Harris.

¶46    Aguado was charged with one count of Sexual Assault that covered a period of

three years in the second trial. On the stand, A.M. testified to both repeated instances of

sexual assault and to sexual events occurring frequently and in close connection. Perhaps

given out of caution, the District Court’s decision to give the pattern unanimity

instruction, and not a different unanimity instruction, was not an abuse of discretion. We

cannot conclude that the court failed to “fully and fairly instruct the jury on the law

applicable to the case.” Dunfee, ¶ 20.

¶47    Affirmed.


                                                 /S/ JIM RICE

We concur:

/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
                                         20
Justice Laurie McKinnon, specially concurring.

¶48    I agree with the Court’s resolution of all issues in these proceedings, with the

exception of the first issue regarding substitution of counsel. I continue to believe that

the Court fails to properly enunciate a standard by which the trial court may assess the

merits of such a motion. See generally Cheetham, ¶¶ 38-46 (McKinnon, J., specially

concurring). Here, while the Court states that “we do not examine whether counsel was

ineffective,” Opinion, ¶ 25, we nonetheless continue to allow for substitution of counsel

if the defendant can demonstrate “ineffective assistance of counsel[.]” Opinion, ¶ 24.

Our inconsistency and unwillingness to properly differentiate between an ineffective

assistance of counsel claim, appropriately raised in a collateral postconviction

proceeding, and a request for substitution of counsel, raised during the pendency of trial,

leaves the trial court and litigants without the appropriate guidance they should receive

from this Court. Failure to adequately distinguish the two types of inquiries will continue

to require collateral proceedings during the pendency of a trial and issuance of Gillham

orders, both of which were done here. In my opinion, it is time to clearly state for the

trial courts and litigants what standard to employ when conducting an “adequate initial

inquiry.” Dethman, ¶ 16; Opinion, ¶ 23.

¶49    Our precedent informing a trial judge of the inquiry necessary when presented

with a motion for substitution of counsel during trial is confusing, if not impossible to

follow. We compound that problem today by continuing to blend an ineffectiveness

claim with a substitution claim. While our precedent consistently emphasizes the need to

                                        21
conduct an adequate initial inquiry when a motion for substitution of counsel has been

made, we have been careless in articulating the standard to be applied by a trial judge in

resolving such a motion. We continue in that tradition today. In some cases, our

enunciated standard requires a “total lack of communication,” State v. Molder, 2007 MT

41, ¶ 33, 336 Mont. 91, 152 P.3d 722; others a “total lack of communication or

ineffective assistance of counsel,” Dethman, ¶ 16, (emphasis added); and still others only

an “ineffective assistance of counsel” inquiry, Gallagher, ¶ 24, MacGregor, ¶¶ 25-26.

¶50    We were urged by the State in Cheetham to enunciate a clear standard for

substitution requests. The State referred this Court to the well-reasoned authority of

federal courts and the United States Supreme Court and urged us to enunciate a clear

standard. Instead, we chose to dodge the bullet by concluding it was “unnecessary to

adopt a new standard in this case” because “the court’s initial inquiry did not reveal

serious questions as to whether [defense counsel] performed the role of counsel

envisioned by the Sixth Amendment[.]”         Cheetham, ¶ 28, n.2.     As I contended in

Cheetham, I do not know how we assess whether counsel performed “the role of counsel

envisioned by the Sixth Amendment” when we fail to articulate a clear standard to assess

the substitution request and continue to blend the request with an ineffective assistance of

counsel claim.

¶51    In federal jurisprudence, prejudice is presumed and a per se violation of the Sixth

Amendment based upon a “constructive” denial of counsel arises whenever there is (1) an

irreconcilable conflict between counsel and defendant; (2) an actual conflict of interest on

                                         22
the part of counsel; or (3) a complete breakdown in communication between counsel and

the defendant. “To warrant substitute counsel, a defendant must show . . . ‘a conflict of

interest, an irreconcilable conflict, or a complete breakdown in communication between

the attorney and the defendant.’” United States v. Swinney, 970 F.2d 494, 499 (8th Cir.),

cert. denied, 506 U.S. 1011, 113 S. Ct. 632 (1992) (citations omitted). See also United

States v. Allen, 789 F.2d 90, 92 (1st Cir.), cert. denied, 479 U.S. 846, 107 S. Ct. 164

(1986); United States v. Whaley, 788 F.2d 581, 583 (9th Cir.), cert. denied, 479 U.S. 962,

107 S. Ct. 458 (1986). The test, which is rooted in the breakdown of the attorney-client

communication sufficient enough to frustrate the original purpose of the appointment, is

essentially whether the trial judge should have granted a substitution motion because of

an irreconcilable conflict. Daniels v. Woodford, 428 F.3d 1181, 1197 (9th Cir.), cert.

denied, 550 U.S. 968, 127 S. Ct. 2876 (2007).

¶52   In my opinion, we do a disservice to the trial courts and the litigants who appear

before them, when, after observing the inappropriate practice of granting a Gillham order

and conducting an ineffective assistance of counsel hearing during the pendency of a

trial, we nonetheless persist in failing to establish a standard by which to assess the

request. I would, as the federal courts have, set forth a standard warranting substitution

of counsel when there is an irreconcilable conflict between counsel and defendant, a

conflict of interest on the part of counsel, or a complete breakdown in communication

between counsel and the defendant.       In evaluating whether a court has abused its

discretion in denying a substitution motion, the following circumstances are relevant: the

                                        23
timeliness of the motion, the adequacy of the court’s inquiry, and the degree to which the

irreconcilable conflict has prevented the mounting of an adequate defense. Allen, 789

F.2d at 92; Whaley, 788 F.2d at 583; Daniels, 428 F.3d at 1197-98. I believe such a

standard is premised upon sound constitutional principles underlying the Sixth

Amendment and Supreme Court precedent.

¶53   For the aforesaid reasons, I specially concur in the decision reached by the Court

regarding issue one. As to the remaining issues, I concur.



                                                /S/ LAURIE McKINNON




                                        24
