No. 05-600 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2007 MT 173 

 ____________________________________ 

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v. 

ROGELIO IBARRA-SALAS, 

 Defendant and Appellant. 

 ____________________________________ 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

 In and for the County of Gallatin, Cause No. DC 04-183, 

 The Honorable Holly Brown, Presiding Judge. 

COUNSEL OF RECORD: 

 For Appellant: 

Christopher K. Williams, Attorney at Law, Bozeman, Montana 

For Respondent: 

Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant 

Attorney General, Helena, Montana 

Marty Lambert, Gallatin County Attorney; Todd Whipple, Deputy County 

Attorney, Bozeman, Montana 

 ____________________________________ 

Submitted on Briefs: September 20, 2006 

Decided: July 17, 2007 

Filed: 

_____________________________________________ 

Clerk 
Justice John Warner delivered the Opinion of the Court. 

¶1 Rogelio Ibarra-Salas (Ibarra-Salas) appeals from an order of the Eighteenth 

Judicial District Court, Gallatin County (District Court), denying his motion for a new 

trial. We affirm. 

¶2 We restate and address the following issues on appeal: 

¶3 1. Did the District Court err in not granting Ibarra-Salas’ motion to continue the 

trial? 

¶4 2. Was Ibarra-Salas’ trial counsel ineffective because he did not question 

prospective jurors concerning ethnic bias or prejudice? 

¶5 The State filed an Information charging Ibarra-Salas with criminal distribution of 

dangerous drugs, a felony, in violation of § 45-9-101, MCA. The State alleged that on 

November 12, 2003, Ibarra-Salas and a co-defendant, Dustin White (White), sold 

methamphetamine to White’s sister, who was a confidential informant. 

¶6 The day before trial, trial counsel for Ibarra-Salas filed a motion for sanctions -- 

either in the form of dismissal of the charge or a continuance of the trial. He claimed that 

despite numerous requests, the State failed to make two witnesses available for 

interviews. 

¶7 The District Court held an immediate hearing on the motion. After hearing from 

counsel and other witnesses concerning the conduct of discovery, the District Court 

determined the witness interviews did not occur because of scheduling conflicts and 

miscommunication. The District Court found that the prosecution did not attempt to 

cause delay by avoiding meetings or hindering the disclosure of information and 

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therefore denied Ibarra-Salas’ motion to dismiss the charge as a sanction. 

¶8 Ibarra-Salas’ motion for continuance was based on his counsel’s alleged need to 

interview the two previously unavailable witnesses and to prepare for trial. After making 

sure the witnesses were available to be interviewed that day, the District Court denied 

Ibarra-Salas’ motion for a continuance. 

¶9 In ruling on the motion, the District Court stated: 

In regard to the continuance, I am also going to deny the continuance. This 

case has been set for trial for some time. And while I appreciate that you 

(defense counsel) have been very diligent in pursuing your discovery 

efforts, because we have had the numbers of hearings and the discovery 

requests, I am going a bit on faith that the information that you will receive 

from the two witnesses that you will presumably have available to you by 

this afternoon, will be cumulative or at least consistent with the information 

that you’ve previously been provided. If that does not turn out to be the 

case, then I would expect that you can document that, either by motion or 

through cross-examination testimony, through the trial. 

 

The trial is currently scheduled for two days. I will be as flexible as we 

need to be to allow you extra time to prepare for the examination of either 

of those witnesses should you need extra time. And we will accommodate 

whatever other arrangements the Court can make to allow you to proceed 

with the case. 

¶10 On the first day of trial, counsel for Ibarra-Salas renewed his request for a 

continuance based on insufficient time to prepare to conduct jury voir dire. The District 

Court stated it would stand by the rationale of its previous ruling and denied the motion. 

¶11 Ibarra-Salas is of Hispanic descent. He had the assistance of a Spanish-English 

interpreter during the trial. During voir dire, counsel for both Ibarra-Salas and the State 

questioned the jury panel concerning its ability to be fair and impartial jurors in a drug 

trial. Neither party questioned prospective jurors about ethnic or racial bias during voir 

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dire. Counsel for Ibarra-Salas was successful in challenging two prospective jurors for 

cause. 

¶12 The jury found Ibarra-Salas guilty of Criminal Distribution of Dangerous Drugs in 

violation of § 45-9-101, MCA. Ibarra-Salas filed a motion for a new trial, which the 

District Court denied as untimely. After the entry of judgment, Ibarra-Salas appealed. 

¶13 The decision to grant or deny a motion for a continuance is within the discretion of 

the district court. State v. DeMary, 2003 MT 307, ¶ 24, 318 Mont. 200, ¶ 24, 79 P.3d 

817, ¶ 24; § 46-13-202(3), MCA. This Court will not overturn a district court’s decision 

to deny a motion for continuance unless the district court abused its discretion and the 

ruling prejudices the defendant. DeMary, ¶ 24. Ibarra-Salas argues the District Court 

abused its discretion when it denied his motions for a continuance. 

¶14 Ibarra-Salas cites to nothing in the record to support his contention that his counsel 

was not prepared to conduct jury voir dire, or that he was unable to present any evidence 

or was unable to effectively cross-examine a witness because he was unprepared. Also, 

even though the District Court said that it would be inclined to grant a motion for a delay 

during the trial if Ibarra-Salas’ counsel needed more time, Ibarra-Salas did not move the 

District Court for additional time. We will not reverse an order of the District Court 

denying a motion for a continuance when a party fails to cite a portion of the record 

which indicates an abuse of discretion. M. R. App. P. 12(1)(f). 

¶15 Ibarra-Salas also claims that the District Court erred because it did not recess the 

trial and conduct a separate hearing to determine if his lawyer was unprepared. He 

attempts to analogize his counsel’s request for a continuance to a situation in which a 

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defendant claims ineffective assistance of counsel and requests new counsel. It is true 

that when a defendant presents a “seemingly substantial complaint” about counsel and 

requests a different lawyer, the Court should hold a hearing on the request for substitution 

of counsel. City of Billings v. Smith, 281 Mont. 133, 136, 932 P.2d 1058, 1060 (1997). 

However, Ibarra-Salas made no request for substitution of his trial counsel and thus no 

hearing was necessary. 

¶16 Ibarra-Salas then argues that because he is a Hispanic person, and thus a member 

of a minority group, his counsel’s failure to question prospective jurors about ethnic or 

racial bias denied him both his constitutional right to an impartial jury and to the effective 

assistance of counsel. 

¶17 A criminal defendant in a state court is guaranteed an impartial jury by the Sixth 

Amendment to the United States Constitution, as applicable to the States through the 

Fourteenth Amendment. A defendant is also guaranteed an impartial jury by Article II, 

Section 24 of the Montana Constitution. State v. LaMere, 2000 MT 45, ¶ 35, 298 Mont. 

358, ¶ 35, 2 P.3d 204, ¶ 35; Ristaino v. Ross, 424 U.S. 589, 595 n. 6, 96 S. Ct. 1017, 1021 

n. 6 (1976) (citations omitted). Voir dire in a criminal proceeding requires adequate 

questioning to assure counsel’s ability to challenge a prospective juror for cause. State v. 

LaMere, 2005 MT 118, ¶ 15, 327 Mont. 115, ¶ 15, 112 P.3d 1005, ¶ 15; State v. 

Herrman, 2003 MT 149, ¶ 23, 316 Mont. 198, ¶ 23, 70 P.3d 738, ¶ 23. 

¶18 In the federal courts, there is no constitutional presumption of juror bias for or 

against members of any particular racial or ethnic group. See Rosales-Lopez v. United 

States, 451 U.S. 182, 191, 101 S. Ct. 1629, 1636 (1981). Nor has this Court ever 

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established such a presumption. We agree with the United States Supreme Court that in 

the heterogeneous society of this country, policy and constitutional considerations 

militate against a per se rule that justice “in a court of law may turn upon the 

pigmentation of skin, the accident of birth, or the choice of religion.” Ristaino, 424 U.S. 

at 596 n. 8, 96 S. Ct. at 1021 n. 8. 

¶19 In the federal court system, unlike Montana, judges rather than attorneys generally 

conduct voir dire examination. Fed. R. Civ. P. 47(a); Fed. R. Crim. P. 24(a); § 46-16-

114, MCA. Federal trial courts must accede to a criminal defendant’s request that 

prospective jurors be questioned about racial or ethnic bias only when (1) racial issues are 

inextricably bound up with the conduct of the trial and (2) there are substantial 

indications of the likelihood of racial or ethnic prejudice affecting the jurors in the 

particular case. Ristaino, 424 U.S. at 596-97, 96 S. Ct. at 1021-22 (citing Ham v. South 

Carolina, 409 U.S. 524, 93 S. Ct. 848 (1973)). The “critical factor” is whether racial 

issues are inextricably bound up with the conduct of the trial. Rosales-Lopez, 451 U.S. at 

189, 101 S. Ct. at 1635 (1981); See Ham, 409 U.S. at 526, 93 S. Ct. at 850. These 

considerations comport with Article II, Section 24, of the Montana Constitution, are 

understandable and we shall utilize them in making the determination whether IbarraSalas was denied a fair trial by an impartial jury. 

¶20 In the present case, there is no indication that any ethnic or racial issues were 

intertwined with the charged drug offense, that the alleged offense was racially 

motivated, or that an ethnic issue was in any way connected with the trial. 

¶21 Also, Ibarra-Salas’ defense did not introduce any ethnic or racial issue into the 

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trial. Ibarra-Salas’ counsel argued that his client was merely present in White’s 

apartment during the methamphetamine sale, that he had no involvement with the sale 

and that the drug deal was between White and White’s sister. The defense did not relate 

to any ethnic or racial issue, and was thus not likely to intensify any bias or prejudice that 

individual members of the jury might harbor. See Ristaino, 424 U.S. at 596-97, 96 S. Ct. 

at 1021. 

¶22 There is no indication in the record of ethnic or racial bias on the part of a 

witness, an attorney, the trial judge, a member of the Court staff or any member of the 

venire panel. Ibarra-Salas was not denied his right to an impartial jury. 

¶23 As there is no record of any ethnic or racial issue in the case, we conclude that 

defense counsel’s performance did not fall below the range of competence required of 

attorneys in criminal cases simply because he did not question prospective jurors about 

possible ethnic bias or prejudice. Thus, Ibarra-Salas was not denied the effective 

assistance of counsel. See LaMere, ¶ 8; Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052 (1984). 

¶24 Affirmed. 

 /S/ JOHN WARNER 

We Concur: 

/S/ JAMES C. NELSON 

/S/ W. WILLIAM LEAPHART 

/S/ BRIAN MORRIS 

/S/ JIM RICE 

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