### Nu.06-840 [h: THE SUPREMECOVR'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: 111and 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:

### JusticcJim 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: 

### cntircjury 

### panel and his motion for a new trial. LVe affirm. A2 

### Tlie soleissue 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 guiltyto 

### all three charges. Ajury 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 statenientsregarding Wright's criminal history,prior con\-ictioos,andprior contacts with law 

### enhrccment. The I>istl-ictCourt granted Wright's motion. and thejury selcctio~~ process began. 

### 71-1 The t-ionorableJohn Wamcr commenced voir dire by describing the chargcs against LVright and asking 

### preliminary iluestio~is oftlie prospectivejttrors, \$'hen 

### questioned ifaiiy 

### 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 caseyears agothatwas 

### 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 

### youjust 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 

### 1knocv 

### ofor anything. 

### Seewhere we areherc 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 youjudge this case fairly, 

### sir? Coggins: This case on its merits posstbly, although 

### I doknow 

### The 

### Court: 

### I know you have said you have someprior 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 Ijust inquire of you, sir, can youjudge 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 prospectivejarors l~ad not bccn prejudiceci by the remarks6 Durirrg voir dire, \%"right'scounscl asked several prospective membe-.; ofthevci~ire pailcl how they liere affccied 

### bq (ioggins' siatrrncnt, 

### Phc prospeciivcjurors in essence srated they bclievcd (;oggins' comments were inappropriate. After thejury 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 ofjury 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 

### ordenying a motion 

### fbr a new trial is within the discretion oftheirial couri-, Section 40-10-702, 

### 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 formistrial or motion for a new trial, this Court will not lightly disturb that 

### ruling. illiz.sniz v. Ijitrcl 

### (I992), 255 Mont. 364, 842 P.2d707,and Sfnic 1.. C,'ouuf.~ 

### (I984). 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 ofa district co~trt judge as to the impartialityofa.iury should

### not be sct aside u~~less therc is clear abuse ofdiscrction." 

### .';rcrre it,Zkli,faho~l (1Wj,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 direpoisoned 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 trialjudge's denial of the defendant's motion for a mistriai based on comliicnts from severalprospecri\~cjtirors regarding theirknowledge ofthe defendant's violent tendencies andthe expressed fear ofthe 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-pretednau-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 orpropensities, which couldnot he curedby admonishmetitorinstruction 

### fromthe 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.2d779. 

### wc upheld the conviction bvl~crethe prosecutor's improper comments v:erc considered insignificant when vie\%-ed 

### in the context of the entire record. 'A:e noted thatthe 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>secatormade 

### potentially erroneous and prejudicial comments 

### regarding presen'l"tii"n or evidence to the judge but the jtldge admonished the prosecutor, issued precautinnaiystatements to thejury; and thejuryultimately i-ejected several 

### of the State's charges. 

### In Stuie v. (;cIfJi,t-(l(1977). 172Mont 380.563 P.2d 1129: we held tl~at non-responsive and prejudicial answers by a prospectivejuror were not cause for reversal when the defendant's motion was not made at the firstrecess followingtlle answers and the answers had been in\.ited by further qucstior~s of defense counsel. 

### In State v.

### Khuo'es (1974). 164Mont. 455, 524 P.2d 

### 1095;we held that amistrial for prejudice against the defendants, caused by ajuror's cornment, was not warranted because defense counsel did not makc a sufficient showing ofprejudice. ,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, [tJhesccases dcnlonstrate 

### a trend that improper comments by prosecutors or prospective jurors about tile defendant or about the evidence, arcnot grounds for amistrial /ora new trial] ifthetrialjudge instructs thejury to disregard the questionable comment and if the court is satisfied that thejuror 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. 

### 713 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 SteveJcnnctte (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 prospectivejuror, the juror stated that he knew Jennette and had co~insclcd Jcnnetteafter tl~e shooting. The prospective juror s?atcdthat 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~/iiiii Cram Xigeir. !i: 

### p

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

### cunversi~iions xith 

### the prospectivejuror \\-as prcsc~ited. During yuestioning, thc prosecution clicitcd 

### informalion thatthejuror knew .lcnnette and had discussed tile sl-iootirigwith him, but no factspci.taining to the incident were disclosed. 111

### i2.fcj2~1u11011. severaljurors made comments concerning the defendant's poor characterin the presence ofthe entire

### jurq-panel. '*Vc concluded in 

### Ff~geil tltat defense counsel's performance was not deficient because ofhis failuretoobject. 

### 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 concludethat tl~c omments 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. Thejury panel could surmise from Goggins' remarks only that Wright had, at most, been charged with a similar crime 

### in thepast, not that he had pled guilty or been corrvicted of a similar crime. While Goggins' remarks were improper. the District Court's inquirywas sufticientto showthe commentsdid not prejudice the othermenibers oftlievenire panel. The District Court correctly dismissed Gogginsfrom 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 DistrictCourt 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 thejury pane!, and to cctnsider their rcsponscs in rile contextofthe courtrooin. Aftcr dismissingthejuror, the court determined thattheremaining pancl could render 

### a fair and impartial decision, andthattile defendant was notprc~udiced by Prospective Juror No. 7's cornn~ents. This was further continned by the answersto questions posed 

### by defense counsel eoiicerning this matter. 

### 1115 Rely~ng on ,Ytute 1, Lrrfilere, 2000 MT 45.298 Mont. 358.2 P.3d 204,' Vvnght argues that the alleged error during thejury selcctlonprocess in this instance requires an autorllatic reversal ofhis conviction. In LuMcre, this Courtdistinguishedtrial 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'VanKirk analysis only if we determine an crt-oroccurred 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;ollowingthe subniissio~i orbricfs in this rnartcrlthe Coiirt dccidcd Sriric. 1.. Van Kip%: 2001 MT i83. 306 Mont. 2i 5, 32 P.3d 715, which incorporated and furthered the Liitlcre analysisiiiscusscd herein.

### 9Tl I, 

### 7 The decision to grant or den>- 

### a motion 

### for a new trial is within the souncl 

### discretirin 

### ,o. \;l'r 

### wiii 1:oi 

### disturb ti:ai 

### ofthe

### triaijiidgc. i;r~irihi-ei, 

### 236 Morrc. at (12, 

### 80.3 P.?d at 10'' 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 actionsof

### 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: