DA 10-0184

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 81

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

MICK GRANT,

 Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and For the County of Hill, Cause No. DC-09-121

Honorable David G. Rice, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender, Garrett R. Norcott, Assistant 

Appellate Defender, Helena, Montana

For Appellee:

Steve Bullock, Montana Attorney General, Micheal S. Wellenstein,

Assistant Attorney General, Helena, Montana

Gina Dahl, Hill County Attorney, Havre, Montana

Submitted on Briefs: March 16, 2011

 Decided: April 20, 2011 

Filed:

__________________________________________

Clerk

April 20 2011
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Justice Beth Baker delivered the Opinion of the Court.

¶1 On November 24, 2009, a Hill County District Court jury convicted Mick Grant 

(Grant) of aggravated assault, a felony, in violation of § 45-5-202, MCA. Grant argues 

the court’s actions during voir dire prevented him from obtaining an impartial jury, and 

seeks reversal of his conviction. We consider the following issue on appeal:

¶2 Whether the District Court prevented Grant from obtaining an impartial jury, 

thereby violating his constitutional rights.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Grant was arrested after his then-girlfriend, Loretta Fitzhugh, called police to 

report that he had assaulted her. Fitzhugh suffered a broken jaw in the incident. Grant 

admitted causing Fitzhugh’s injuries, but claimed he had acted in self-defense. Since the 

facts of the incident are not relevant to the limited issue presented on appeal, we need not 

address them in further detail.

¶4 A key issue in the State’s case for aggravated assault was whether Fitzhugh’s 

injuries could be considered “protracted.” “Protracted” is part of the definition of 

“serious bodily injury” applicable in this case, which was required to prove felony 

aggravated assault. Section 45-2-101(66)(a)(ii), MCA. The State planned on calling two 

doctors as expert witnesses to testify to the “protracted impairment” caused by Fitzhugh’s 

injuries. During voir dire, Grant’s counsel sought to explore jurors’ concepts of the word 

“protracted,” which he alleges was necessary to evaluate potential juror bias as to the 

doctors’ testimony.
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¶5 Defense counsel made clear his intention to question each juror about his or her 

understanding of “protracted,” and did question six jurors in succession. After the sixth 

juror, the court interjected, “Mr. White, excuse me, I think your point is made . . . [t]his is 

the sort of thing the jury can discuss in deliberations. The instruction they will receive. 

They’ll have to define lots of words. I think you made your point. So please move on.” 

White objected, stating that he still had plenty of time left in voir dire, but the court did 

not modify its directive. White then inquired whether the remainder of the jury, by show 

of hands, disagreed with the definition of protracted injury as one that is “long-term” and 

has “complications that are unexpected,” as opposed to one that “is addressed normally” 

and “heals as expected.” When no hands were raised, White stated, “Okay. Thank you. 

With that, Judge, I believe my voir dire is complete and I pass the jury for cause.”

¶6 The parties then exercised their peremptory challenges and agreed upon the jury 

pool. Before the selected jurors were readmitted into the courtroom, White again 

objected that his voir dire was cut short. He argued it was unfair that the State had taken 

more than an hour for voir dire, while he was “cut short at 45” and was thereby not 

allowed “to voir dire the final 20 or so panel members on the point that I wanted to voir 

dire them on.” The court explained the reason it had cut off that line of questioning was 

“because I looked at the definition of serious bodily injury . . . [a]nd the definition 

proposed by the State appears to be the definition of the statute.” The court continued, “I 

didn’t believe it was a good use of time to ask each juror what they thought protracted 

meant and then go out as a jury, have to define that and then perhaps many other words 
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and then there were a number of different options for the definition of serious bodily 

injury for them to find.” White responded, “I understand, Judge.” The court then 

continued, “[b]ut you could have continued with other things and you chose to stop.” 

White reasserted that he “felt what each of them had to say about protracted is directly 

relevant to their view, you know, of this case.” The court responded, “[a]nd I didn’t and 

you will argue it . . . [t]hat is for argument and not voir dire.”

¶7 The jury subsequently convicted Grant of aggravated assault, and he timely 

appealed. His sole argument on appeal is that the court’s actions in cutting short his 

counsel’s juror-by-juror inquiry of their understanding of “protracted” deprived him of 

the right to an impartial jury.

STANDARD OF REVIEW

¶8 A district judge has “great latitude in controlling voir dire.” State v. LaMere, 190 

Mont. 332, 339, 621 P.2d 462, 466 (1980). We review a court’s control of voir dire for

abuse of discretion. State v. Michaud, 2008 MT 88, ¶ 13, 342 Mont. 244, 180 P.3d 636.

DISCUSSION

¶9 Whether the District Court prevented Grant from obtaining an impartial jury, 

thereby violating his constitutional rights.

¶10 The right to an impartial jury is guaranteed by the Sixth Amendment to the United 

States Constitution and Article II, Section 24 of the Montana Constitution. Grant cites 

LaMere, 190 Mont. at 338, 621 P.2d at 465, for the proposition that this right is exercised 
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through the voir dire process: “[t]he defendant is entitled to an impartial jury and the 

purpose of voir dire is to expose any possible biases.” Id. at 337-38, 621 P.2d at 465.

¶11 The specific question before us is whether the District Court’s direction to Grant’s 

counsel to cease his juror-by-juror inquiry as to interpretations of the word “protracted” 

constituted an abuse of discretion. We must balance Grant’s essential right to an 

impartial jury with the broad discretion a trial court has to oversee the administration of 

trial. A trial judge must “be able to set reasonable limits on voir dire.” Id. at 338, 621 

P.2d at 465. The court must balance the need for thorough investigation of possible juror 

bias with the “duty to conduct the trial in a speedy and fair manner,” and “has wide 

latitude in so doing.” Id. at 339, 621 P.2d at 466. The reasonable limits to be set must 

have due regard for fairness to both parties. Borkoski v. Yost, 182 Mont. 28, 32, 594 P.2d 

688, 690 (1979).

¶12 Grant argues the District Court prevented him from adequately exploring juror 

biases on a key issue to the case: whether Fitzhugh’s injuries met the applicable 

definition of “serious bodily injury.” The State intended to call two doctors to testify that 

Fitzhugh’s injuries resulted in protracted impairment. Grant contends the line of 

questioning halted by the District Court was necessary to determine whether jurors would 

listen to the doctors’ testimony impartially. His opening brief contends, “[p]erhaps a 

juror had a medical issue that was not properly diagnosed or strong feelings about the 

medical professionals and their expertise in diagnosing medical issues. In order to 

expose these types of impartiality [sic], defense counsel needed to probe beyond the 
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surface level and question jurors regarding the doctors’ expected testimony.” He 

continues, “[c]ounsel was not allowed to question jurors beyond the surface level. The 

judge stopped counsel from questioning jurors regarding the doctors’ expected 

testimony.”

¶13 We cannot agree that prohibiting individual questioning on the meaning of 

“protracted” foreclosed Grant’s ability to explore possible biases relating to testimony of 

medical professionals. While Grant complains he was cut off from explaining the 

reasons behind his focus on “protracted,” the simple fact remains he did not attempt to 

remedy the issue. The court did not prevent Grant from inquiring into jurors’ attitudes 

and biases toward the testimony of medical professionals, or the jurors’ previous medical 

history and experiences with doctors. Alternative questions would have been more likely 

to reveal such experiences and prejudice resulting therefrom.

¶14 It was within the District Court’s discretion to limit counsel’s insistent focus on 

one word in the statutory elements of the offense. As we have previously noted, 

“protracted” is a term “of common usage capable of ready understanding.” State v. Trull, 

2006 MT 119, ¶ 34, 332 Mont. 233, 136 P.3d 551 (citing State v. Nye, 283 Mont. 505,

513, 943 P.2d 96, 102 (1997)). While Grant argues that “protracted” may mean different 

things to different people despite its ready understandability, counsel’s repetitive 

questioning as to jurors’ understanding of the word justifiably struck the District Court as 

taking on elements of argument that the victim’s injury was not of a protracted nature, 

rather than inquiry into juror bias. A district court has the duty to ensure orderly, fair 
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proceedings, and is entrusted with discretion to set reasonable limits on the exercise of 

voir dire to that end. LaMere, 190 Mont. at 338, 621 P.2d at 465. The District Court’s 

actions in curtailing examination of jurors’ understanding of a readily-understandable 

word after considerable time spent doing so were not outside the bounds of the court’s 

discretion. The court therefore did not violate Grant’s constitutional right to an impartial 

jury.

¶15 Because we conclude the District Court did not abuse its discretion in controlling 

voir dire, we do not reach Grant’s argument that errors in the jury selection process 

require automatic reversal of his conviction.

¶16 Affirmed.

/S/ BETH BAKER

We concur:

/S/ MIKE McGRATH

/S/ JAMES C. NELSON

/S/ BRIAN MORRIS

/S/ JIM RICE