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. Co~~nty Attorney; Aileen Miller, Deputy County 

Attorney, Havre, Montana 

Submitted on Briefs: October 11 : 2001 

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

"1 ihc .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 -+\'as charged by i~iforniation on January 6,2000, with two counts off riminal 

Sale of Dangerous [)rugs, a felony. in violation of 5 -15-9-101(4), tlC'tt: and one count of 

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 in L,in~ine sccking 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-ict Court 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 of tlie prospective jttrors, \$'hen questioned if aiiy 

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?Can you 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. 'eiu Your Honor, can I 'tpproach the bench. picaie? 

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

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 on 

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, 1'11 excuse you then rhank you for your candor 

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~idual voir dire on the basis of Goggins' 

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

rrmaining prospective jarors l~ad not bccn prejudiceci by the remarks 
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, 

tVrig1tt3s trial 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 24, 2000. 

After a lrcaring on Wright's ~r~otio~i, the District Court denied the motio:: for a nem- trial 

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 or 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)_ 240 hlont. 84, 91, 803 P.Zd 1071, 

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 ~~ittst be show11 by cvidcnce that is clear. 

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 v. Corrr~fx, 209 FLlot~t. at 748, 670 P.2d at 

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

aside u~~less therc is clear abuse ofdiscrction." .';rcrre it, Zkli,faho~l (1 Wj, 271 ilont. 75,78; 
~~~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, we reversed the trial judge's denial of the defendant's motion for a 

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 ihe defeniliint's 

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~cre the prosecutor's improper comments v:erc considered 

insignificant when vie\%-ed in 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:, iV(i/!~ti (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 of defense counsel. In State v. Khuo'es (1974). 164 Mont. 455, 524 

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~ Court conclttded that, 

[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 he uas 

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 wi~o was at 

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

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

Jcnnette after tl~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-icci Z~f~;l~i~/iiiii Cram Xigeir. !i: 

p ,iigt:i.,~, nci cvidcncc coi-icerning the siubsianci: of Jci~ncitc's cunversi~iions xith the 

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. 111 i2.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~lg the eotn~nents at issue in the present case and sct forth above. we 

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

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 on tlre evidence presented during trial. 7'he 

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

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

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 of the jury panel had nut bccrr "'pcrisiined," ;rid 

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. 

111 5 Rely~ng on ,Ytute 1, Lrrfilere, 2000 MT 45.298 Mont. 358.2 P.3d 204,' Vvnght argues 

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

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 i 83. 306 Mont. 2 i 5, 32 P.3d 715, which incorporated and furthered the Liitlcre 

analysis iiiscusscd herein. 
9Tl I, 7 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, 80.3 P.?d at 10'' ,o. \;l'r wiii 1:oi disturb ti:ai 

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

3 i 5: 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: