No. 04-216

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 112

STATE OF MONTANA,

Plaintiff and Respondent,

v.

GEORGE WILLIAM PARRISH,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead, Cause No. DC-01-355(A),

The Honorable Ted O. Lympus, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Daniel R. Wilson, Measure & Wilson, P.C., Kalispell, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Mark W. Mattioli,

Assistant Attorney General, Helena, Montana

Ed Corrigan, County Attorney; Daniel M. Guzynski, Deputy County

Attorney, Kalispell, Montana

 Submitted on Briefs: April 5, 2005

 Decided: May 4, 2005 

Filed:

__________________________________________

Clerk
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Justice Brian Morris delivered the Opinion of the Court.

¶1 George William Parrish (Parrish) appeals from the denial of his motion for a new trial

by the Eleventh Judicial District Court, Flathead County. We affirm except for the limited

issue of whether the District Court improperly ordered Parrish to pay expert witness fees and

expenses beyond the $10 per diem set out in § 25-10-501, MCA. The State concedes this

point and we therefore remand solely for reassessing witness costs.

¶2 We must determine whether the District Court erred by denying Parrish’s motion for

a new trial based upon the State’s alleged exercise of peremptory challenges during jury

selection in a manner that intentionally excluded men from the jury in violation of Parrish’s

right to equal protection under the United States and Montana Constitutions.

BACKGROUND

¶3 A jury convicted Parrish of two felony counts of sexual assault and two felony counts

of sexual intercourse without consent involving his two step-daughters. At Parrish’s trial,

as with any jury trial, the District Court and counsel for the parties selected a jury from the

venire through the voir dire process. The District Court dismissed potential jurors for cause,

and the State and Parrish’s counsel exercised their six peremptory challenges to excuse

others, until the District Court eventually seated a jury panel of twelve and one alternate

juror.

¶4 The District Court first dismissed three men and three women for cause, after which

the jury venire consisted of thirteen men and eleven women. The State exercised six

peremptory challenges by dismissing six men from the jury venire. Parrish’s counsel
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exercised his six peremptory challenges by removing three men and three women from the

jury venire. As a result, the final jury panel consisted of eight women and four men. The

parties chose a man as the alternate juror after the State used its peremptory challenge to

dismiss one of two men and Parrish’s counsel used his peremptory challenge to excuse the

lone woman.

¶5 Parrish’s counsel approached the bench after the parties had completed voir dire and

after the court had seated the final jury panel of twelve. Parrish’s counsel apparently

interposed an off-the-record objection concerning the State’s use of all six peremptory

challenges to exclude only men. Parrish’s counsel made no formal motion and evidently did

not attempt to place any objection on the record at that time. The District Court then

impaneled the final twelve jurors, gave them preliminary instructions, and dismissed them

for the lunch hour. The District Court also dismissed the remaining jury venire. The District

Court, while the jury was in recess, reported that Parrish’s counsel had indicated at the

earlier sidebar that he had a motion to make, but that it was “agreed that we would go ahead

and finish the selection process, excuse the panel for the noon hour, and that the motion

could then be presented.”

¶6 Parrish’s counsel responded that he would get his “motion on the record, and then,

depending on the verdict,” he would brief and submit a motion for a new trial. Parrish’s

counsel then made his formal objection, pursuant to Batson v. Kentucky (1986), 476 U.S. 79,

106 S.Ct. 1712, 90 L.Ed.2d 69. The District Court asked the State to respond. The State

justified each of its strikes and replied that it would respond in more detail if Parrish’s
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counsel filed a motion. The trial continued.

¶7 At the end of the first day of the trial, the State asked the District Court whether it

intended to make a formal ruling on Parrish’s counsel’s Batson objection. The District Court

remarked that Parrish’s counsel expressed his intent that the Batson objection be preserved

for a possible motion for a new trial after a potential conviction and the State already had

explained each of its peremptory challenges, therefore, the parties need not “do anything

about it.”

¶8 The jury found Parrish guilty on all counts. Parrish filed a motion for a new trial,

contending in part, that the State’s use of all of its peremptory challenges to exclude men

from the jury panel violated Batson and its progeny. The District Court held a hearing where

no witnesses testified and determined that the State had not engaged in purposeful gender

discrimination by using its six peremptory challenges to strike only men from the jury

venire. Parrish appeals.

STANDARD OF REVIEW

¶9 We review de novo a district court’s application of the law regarding the timeliness

of a Batson-type challenge. State v. Ford, 2001 MT 230, ¶ 7, 306 Mont. 517, ¶ 7, 39 P.3d

108, ¶ 7 (citations omitted).

DISCUSSION

¶10 Parrish, relying on Batson and its progeny, argues that the State violated his right to

equal protection under the United States and Montana Constitutions by exercising its

peremptory challenges in a discriminatory manner by excluding only men from the jury.
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Batson held that a prosecutor could not exercise peremptory challenges to exclude potential

jurors based solely upon race. Batson, 476 U.S. at 84, 106 S.Ct. at 1716, 90 L.Ed.2d at 79.

The United States Supreme Court extended Batson to prohibit gender discrimination during

jury selection. J.E.B. v. Alabama ex rel T.B. (1994), 511 U.S. 127, 114 S.Ct. 1419, 128

L.Ed.2d 89. We reviewed the history and progression of the Batson analysis concerning jury

composition in Ford, ¶¶ 8-20, where we adopted the Batson standard with respect to gender.

¶11 A trial court must follow a three-prong procedure when determining whether a Batson

violation has occurred. Counsel first must establish a prima facie case of purposeful

discrimination. The burden then shifts to the responding counsel to articulate a genderneutral explanation for exercising the peremptory challenge. The court finally must

determine, through findings of fact, whether counsel has established a prima facie case of

purposeful discrimination. Ford, ¶ 16.

¶12 First and foremost, however, we require that counsel must raise a Batson challenge

before the district court swears the jury and dismisses the venire. Ford, ¶ 28. In Ford, we

deemed a Batson challenge raised after the court had impaneled and sworn the jury and had

dismissed the venire to be untimely and therefore waived. See also Casiano v. Greenway

Enterprises Inc., 2002 MT 93, ¶ 27, 309 Mont. 358, ¶ 27, 47 P.3d 432, ¶ 27 (holding that

moving to discharge the jury based upon Batson after the jury had been selected, sworn, and

the venire excused is untimely).

¶13 An untimely Batson challenge results in a waiver for several reasons. Ford, ¶ 21

(citation omitted). First, it delays justice because once the court dismisses the venire, the
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jury selection process must start anew with no readily available venire from which to finish

the selection process. Ford, ¶ 25. Moreover, once the court dismisses the venire, the

challenged counsel’s duty to explain his or her peremptory challenges “becomes very

difficult once the persons to whom the peremptories were directed have disappeared from

sight[.]” Ford, ¶ 26 (citations omitted). Finally, a substantive Batson challenge raised after

the court has sworn the jury and dismissed the remaining venire deprives the court of its

opportunity to first correct any error and cure the alleged defect. Ford, ¶ 27 (citations

omitted).

¶14 We determine that a similarly untimely objection has occurred here, and therefore,

do not reach the merits of Parrish’s claim that the State’s use of peremptory challenges

violated Parrish’s equal protection rights. Parrish’s counsel apparently first attempted to

raise a Batson-type objection at an off-the-record sidebar that occurred after the parties had

completed voir dire and the court had seated the final jury panel of twelve. Parrish’s counsel

did not argue, much less establish, a prima facie case of purposeful discrimination at that

time, and therefore, failed to make an objection sufficient to constitute a Batson objection.

Ford, ¶ 16.

¶15 The record in this case admittedly proves problematic. The District Court confirmed

that Parrish’s counsel apparently had attempted to raise a Batson-type claim during the offthe-record sidebar at which point the District Court and Parrish’s counsel appeared to reach

some agreement regarding the procedure to be followed. It remains the duty of the party

seeking to raise a Batson-type claim, however, to come forward in a timely manner and
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follow the clear dictates of our discussion in Ford. It falls beyond the province of the district

court or trial counsel to jettison these requirements in search of a more expedient process

precisely for the reasons discussed in ¶ 13 above.

¶16 Parrish’s counsel’s second attempt to raise a Batson-type objection occurred after the

District Court had dismissed the remaining venire, which of course, falls too late. Ford, ¶

28; Casiano,¶ 28. The District Court, in fact, offered Parrish’s counsel an opportunity at that

time to present his Batson motion. Parrish’s counsel instead chose merely to preserve his

objection for the record and wait until the jury had rendered its verdict before presenting a

formal Batson claim. 

¶17 Parrish’s counsel’s third opportunity to raise a Batson-type objection presented itself

at the end of the first day of trial when the State inquired whether the District Court intended

to make a formal ruling on Parrish’s Batson objection. Parrish’s counsel, instead of

providing a Batson argument and requesting a formal Batson hearing and ruling, acquiesced

to the trial continuing. Indeed, the Batson hearing actually did not occur until Parrish made

a motion for a new trial after the jury had convicted him. This scenario falls well short of

the timeliness that we demand pursuant to Ford, a case decided two years before Parrish’s

trial.

¶18 In Casiano, neither counsel for the parties nor the court had the benefit of our Ford

decision at the time of that trial. Nevertheless, we concluded that our decision in Ford

regarding the timeliness of the Batson objection controlled. Casiano, ¶ 28. Here Parrish had

notice of our Ford requirement of making a timely Batson objection for nearly two years
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before his trial began in September, 2003. We cannot justify any grounds that would allow

an untimely Batson-type objection in this matter.

¶19 We finally note that in Batson challenges “it is imperative that the trial court fully

develop a record for review – a record that includes all relevant facts and information relied

upon by the trial court to render its decision, as well as a full explanation of the court’s

rationale.” Ford, ¶ 18 (citation omitted). This factual record and explanation proves

necessary to our review of the merits of any Batson-type challenge. Although the District

Court in the instant case held a hearing on Parrish’s counsel’s Batson challenge, it did not

make findings of fact and its only rationale appears in the transcripts of the hearing where

it explained that it deemed the State’s explanations to be credible. This omission is not fatal

to our decision, however, because as stated in ¶ 14 above, we conclude that Parrish made an

untimely Batson objection and we therefore do not reach the merits of his Batson challenge.

¶20 The District Court’s denial of Parrish’s motion for a new trial will stand in light of

the fact that we will affirm a district court if it reaches the right result for the wrong reason.

State v. Veis, 1998 MT 162, ¶ 16, 289 Mont. 450, ¶ 16, 962 P.2d 1153, ¶ 16. We conclude

that the District Court did not err when it denied Parrish’s motion for a new trial based upon

the State’s exercise of peremptory challenges during jury selection because Parrish failed to

raise a timely Batson-type objection.

¶21 Remanded for the limited purpose of reassessing witness costs and affirmed on the

denial of Parrish’s motion for a new trial.

/S/ BRIAN MORRIS
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We Concur:

/S/ W. WILLIAM LEAPHART

/S/ JOHN WARNER

/S/ PATRICIA O. COTTER

/S/ JIM RICE