 No



                                                                 No. 98-462



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                               1999 MT 83N




STATE OF MONTANA,



Plaintiff and Respondent,



v.



TERRY SHATZ,



Defendant and Appellant.




APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Powell,



 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-462%20Opinion.htm (1 of 8)4/11/2007 11:18:30 AM
 No

The Honorable Ted L. Mizner, Judge presiding.




COUNSEL OF RECORD:



For Appellant:



Patrick T. Gallagher, Public Defender Project Office,

Anaconda, Montana



For Respondent:



Hon. Joseph P. Mazurek, Attorney General, Helena, Montana

Pamela P. Collins, Ass't Attorney General, Helena, Montana



Christopher Miller, Powell County Attorney, Deer Lodge, Montana




                                                                                               Submitted on Briefs: February 18, 1999



Decided: April 20, 1999



Filed:



 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-462%20Opinion.htm (2 of 8)4/11/2007 11:18:30 AM
 No




__________________________________________

Clerk

                          Justice Karla M. Gray delivered the Opinion of the Court.




¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number, and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. Terry Shatz (Shatz) appeals from the judgment and sentence entered by the
Third Judicial District Court, Powell County, on a jury verdict convicting him of
felony escape. We affirm.

¶3. We address the following issues:

¶4. 1. Did the District Court abuse its discretion by denying Shatz's motion for a
mistrial?


¶5. 2. Did the District Court err in failing to rule on Shatz's motion to dismiss?

                                                           BACKGROUND

¶6. The State of Montana (State) charged Shatz by information with committing the
offense of felony escape in violation of § 45-7-306, MCA. The information alleged
that on or about August 18, 1997, Shatz knowingly removed himself from detention
at the Montana State Prison. Shatz subsequently was arrested in Billings, Montana,
appeared for arraignment and pled not guilty to the charge of felony escape.

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-462%20Opinion.htm (3 of 8)4/11/2007 11:18:30 AM
 No


¶7. In February of 1998, Shatz filed a motion to dismiss the charge on double
jeopardy grounds and the State responded. The District Court did not rule on
Shatz's motion to dismiss and the case proceeded to trial in May of 1998. On the
morning of trial, the District Court inquired whether Shatz's counsel was ready to
proceed to trial and counsel replied that Shatz was ready.

¶8. During voir dire, four prospective jurors gave responses which concerned Shatz.
Shatz challenged prospective jurors S.J., J.C. and L.B. for cause, and the District
Court denied the challenges. Shatz exercised peremptory challenges to three of the
four jurors of concern and the State peremptorily challenged the fourth. Thus, none
of the prospective jurors about whom Shatz was concerned ultimately served on his
jury.

¶9. Immediately after voir dire, Shatz moved for a mistrial claiming that the
comments of several prospective jurors "prejudiced the jury panel." The District
Court denied Shatz's motion, the trial proceeded, and the jury found Shatz guilty of
felony escape. The District Court sentenced Shatz and entered judgment, and Shatz
appeals.

DISCUSSION¶10. 1. Did the District Court abuse its discretion by denying Shatz's
motion for a mistrial?


¶11. Shatz does not contend that the District Court erred in denying his challenges to
certain jurors for cause. He argues only that the District Court erred in denying his
motion for a mistrial, which was premised on the theory that comments made by
four prospective jurors during voir dire poisoned the jury panel. In deciding whether
to grant or deny a motion for a mistrial, a district court determines whether the
conduct at issue denied the defendant a fair and impartial trial. We review the ruling
to determine whether the court abused its discretion. State v. Hardaway, 1998 MT
224, ¶ 25, 966 P.2d 125, ¶ 25, 55 St.Rep. 936, ¶ 25 (citation omitted).

¶12. Comments by prospective jurors which are so prejudicial that they have a
"natural tendency" to infect the entire proceedings with an unfairness can only be
corrected by declaring a mistrial. State v. McMahon (1995), 271 Mont. 75, 81, 894
P.2d 313, 317. In McMahon, we reversed the trial judge's denial of the defendant's
motion for mistrial based on comments from several prospective jurors regarding

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-462%20Opinion.htm (4 of 8)4/11/2007 11:18:30 AM
 No


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. McMahon, 271 Mont. at 77-78, 894 P.2d at 315. We
cautioned, however, that our holding should be interpreted narrowly and reserved
only for the most egregious and prejudicial prospective juror comments, amounting
to inadmissible opinions or comments about the defendant's character or
propensities, which could not be cured by admonishment or instruction from the
court. McMahon, 271 Mont. at 81, 894 P.2d at 317.

¶13. Scrutinizing the comments at issue in the present case, we conclude that they did
not relate to Shatz's character or propensities and, as a result, they did not constitute
comments so egregious as to be incurable by the District Court's admonishment to
the jury to decide the case based on the evidence and the court's final instructions on
the law.

¶14. In any event, however, a cause may not be reversed because of error by the trial
court "unless the record shows that the error was prejudicial." See § 46-20-701,
MCA. Thus, even assuming arguendo that the District Court abused its discretion in
denying Shatz's motion for a mistrial, the question remains whether that error was
prejudicial. We conclude that it was not.

¶15. In State v. Williams (1993), 262 Mont. 530, 538, 866 P.2d 1099, 1104 (citations
omitted), we stated the prejudice test as whether a reasonable possibility existed that
error contributed to the conviction, and applied that test to an error committed
during jury selection. There, the evidence leading to the conviction was presented
through nine witnesses whose testimony was consistent in all material respects and
was "basically uncontradicted." The defendant called no witnesses and rebutted
none of the prosecution's evidence. Williams, 262 Mont. at 539, 866 P.2d at 1104. On
that basis, we held that no reasonable possibility existed that the court's erroneous
denial of the defendant's challenge of one prospective juror for cause contributed to
his conviction. Williams, 262 Mont. at 539, 866 P.2d at 1104.

¶16. Here, as in Williams, the State's evidence was substantial and uncontroverted.
The record clearly established that Shatz was an inmate at the Montana State Prison,
he could not be found after working outside the prison compound in August of 1997,
he later was arrested in Billings, and his statements during a police interview
unmistakably indicated that his actions were done knowingly. Nor did Shatz call any


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-462%20Opinion.htm (5 of 8)4/11/2007 11:18:30 AM
 No


witnesses or present any defense. Indeed, his counsel's cross-examination of the
State's four witnesses totaled fewer than two dozen questions.

¶17. Moreover, Shatz did not address the prejudice test in his opening brief on
appeal. In his reply brief, Shatz argues that he was prejudiced as a result of the
District Court's denial of his motion for a mistrial because, while he presented no
witnesses or defense, his counsel's closing argument was that the State failed to prove
several of the elements of the charged offense beyond a reasonable doubt. In this
regard, we need only observe that the presumption of innocence and the State's
burden of proof were the only avenues of argument available to Shatz's counsel.
Furthermore, the weakness of those arguments is evidenced by the fact that Shatz
did not move for a directed verdict of acquittal based on the legal insufficiency of the
State's case and he does not raise as an issue on appeal that there was insufficient
evidence to support the jury's verdict.

¶18. On the record before us, we conclude that there is no reasonable possibility that
the District Court's denial of Shatz's motion for a mistrial contributed to his
conviction. We hold, therefore, that any error in the District Court's denial of Shatz's
motion for a mistrial was harmless and not prejudicial.

¶19. 2. Did the District Court err in failing to rule on Shatz's motion to dismiss?

¶20. Shatz moved to dismiss the felony escape charge on double jeopardy grounds in
February of 1998, and the District Court did not rule on that motion prior to his trial
in May of 1998. Shatz contends on appeal that the District Court failed to comply
with § 46-13-104(1), MCA, which generally requires that a pretrial motion be
determined before trial, and requests a remand to the District Court with
instructions "to rule on the motion and in the event the motion is denied to grant a
new trial." The State responds that by proceeding to trial without alerting the
District Court of its failure to rule on his pretrial motion, Shatz waived both his right
to a ruling on the motion to dismiss and his right to raise this issue on appeal. We
agree.

¶21. Prior to trial, the District Court inquired whether Shatz's counsel was ready to
proceed to trial and counsel replied that Shatz was ready. At no time before or
during the trial did Shatz alert the court that it had not ruled on his motion to
dismiss.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-462%20Opinion.htm (6 of 8)4/11/2007 11:18:30 AM
 No


¶22. "Waiver" is defined as "[t]he intentional or voluntary relinquishment of a
known right, or such conduct as warrants an inference of the relinquishment of such
right." Black's Law Dictionary 1580 (6th ed. 1990). By representing to the court that
he was ready to proceed to trial and by allowing the trial to proceed to conclusion
without alerting the court that a potentially dispositive motion was pending, Shatz
clearly pursued a course of conduct inconsistent with seeking a ruling on his motion.
That conduct warrants an inference that Shatz relinquished--and thereby waived--
his right to a pretrial ruling on his motion to dismiss.

¶23. Furthermore, in State v. Swoboda (1996), 276 Mont. 479, 481, 918 P.2d 296, 298,
the defendant did not alert the sentencing court to its obligation to consider or
discuss sentencing alternatives to imprisonment for a nonviolent felony offender as
required by statute. We ultimately held that, because the defendant failed to object to
the sentence or move for reconsideration, he was barred from raising the
"alternative sentencing" issue on appeal. Swoboda, 276 Mont. at 485, 918 P.2d at 300.

¶24. While the statutory duty imposed on the District Court to determine a pretrial
motion before trial differs from the statutory duty at issue in Swoboda, our Swoboda
analysis is equally applicable here. Shatz did not object to the court's failure to rule
on his motion to dismiss, thereby giving the court an opportunity to correct its error.
Accordingly, he is barred from raising that issue on appeal (see, e.g., Swoboda, 276
Mont. at 485, 918 P.2d at 300) and we need not address this issue further.

¶25. Affirmed.


/S/ KARLA M. GRAY




We concur:


/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-462%20Opinion.htm (7 of 8)4/11/2007 11:18:30 AM
No



/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-462%20Opinion.htm (8 of 8)4/11/2007 11:18:30 AM
