NO. 93-052
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
V .
JEARoLD K. WILLIAMS,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Office,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Patricia J. Jordan, Assistant Attorney
General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney,
Daniel L. Schwarz, Deputy County Attorney,
Billings, Montana
Submitted on Briefs: September 30, 1993
Decided: December 22, 1993
Filed:
-.
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Jearold K. Williams was charged by information in
the District Court for the Thirteenth Judicial District in
Yellowstone County with deliberate homicide, in violation of
§ 45-5-102(1)(a), MCA. On June 11, 1992, after trial by jury, he
was found guilty of the crime with which he was charged. He was
subsequently sentenced to a term of imprisonment for 60 years at
the Montana State Prison. Defendant appeals from his conviction.
We affirm the judgment of the District Court.
The following issues are presented by defendant on appeal:
1. Did the District Court abuse its discretion when it
denied defendant's challenge to a juror for cause, and if so, did
such abuse affect the outcome of defendant's trial?
2. Did the District Court err when it refused to instruct
the jury on the lesser included offense of mitigated deliberate
homicide?
FACTUAL BACKGROUND
Defendant Jearold K. Williams was the legal guardian of, and
had maintained a father and son type of relationship with Mark
Reitler. According to the testimony at defendant's trial, he and
Reitler were also in the drug business together. Defendant was the
supplier and Reitler was the distributor.
On November 23, 1990, Reitler and two friends, David Wood and
Fred Winters, went to defendant's home where, without his
permission, they borrowed several rifles and then went hunting on
defendant's property. During the course of that day, they consumed
2
substantial amounts of drugs, including methamphetamines, crank,
and marijuana.
At about 5:00 or 5:30 p.m., Reitler and his companions
finished hunting, went back to defendant's house, and returned the
guns. While there, Reitler and defendant became involved in an
argument over money that defendant said Reitler owed him for the
sale of drugs. Defendant referred to the money as his profits and
demanded that he be paid. When Reitler became angry with
defendant, he and his companions left defendant's home. They
dropped Winters off, and the other two went to Reitler's home.
When Reitler and his companion arrived at the mobile home in
which Reitler lived, a number of people were present. Most of them
had come there to purchase drugs and were waiting for Reitler to
return home.
Reitler went to the back room of the mobile home where he and
two other companions smoked some marijuana. While Reitler and two
others smoked marijuana in the back bedroom, several others waited
in the living room, which was toward the front end of the mobile
home, with the intention of purchasing drugs.
The description of what happened next is consistent among all
nine survivors who were present in the mobile home and who
testified at trial.
Shortly after Reitler arrived home, defendant came to the
home, visited shortly with the people assembled in the living room,
and then went to the back of the home where Reitler was located.
After they were there for a short period of time, the emerged and
moved to the kitchen, which was adjacent to the living room, where
they argued about money that defendant complained he was owed by
Reitler.
Reitler gave defendant an envelope full of money which he
claimed included $2000, and demanded that defendant count it.
Apparently, according to statements made at that time, the payment
was $95 short of the amount Reitler owed defendant, but he said he
would pay the balance the following day. He then told defendant to
leave the home.
Defendant, who owned the mobile home and rented it to Reitler,
said that he did not have to leave because it was his mobile home.
The argument escalated and Reitler picked up the telephone to call
the police. At that point, the two became involved in a shoving
match and defendant said he was going to his car to get his gun.
After defendant left the home through the front porch door, Reitler
locked the door, tried to block it with a board, and went to the
back of the trailer where he retrieved his rifle.
At about that time, the witnesses in the mobile home heard a
shot from outside. One witness, who was located outside, said he
observed Williams at the front door shooting into the door with his
pistol.
When the shot from outside was heard, Reitler told the others
who were present to get to the back of the mobile home. Some went
to a bedroom located near the rear of the home. Others went out
the back door. Apparently Reitler's call had gotten through to a
9-l-l switchboard service, which immediately recorded what happened
4
thereafter. The State and defense stipulated at trial that the
following conversation was recorded from the Reitler home: "Mark,
see these? These are fucking real. Put the gun down or I will
blow your fucking head off."
Those witnesses who had been present, but were now hiding in
either the front bathroom or one of the two back bedrooms, heard
several shots fired from defendant's pistol, and then either saw or
heard two shots fired by Reitler as he attempted to retreat through
the back door. The testimony was uncontradicted that several shots
were heard before Reitler was observed firing his rifle. Later,
investigation established that only two shots were ever fired from
Reitler's rifle.
After the shooting stopped, those present went to the back
door and found Reitler lying on the ground next to the back steps.
Efforts to resuscitate him were unsuccessful, and he died from a
bullet wound which was later determined to have been inflicted from
the Ruger . 357 Magnum owned by defendant.
Following the shoot-out, defendant was observed by at least
one person from outside the home getting in a car with a pistol in
his hand and speeding away.
Later that night he was arrested alongside Interstate 90 west
of Billings, where his vehicle had run out of gas. The Ruger .357
Magnum, which was later identified by forensics experts as the
weapon which killed Reitler, was found in the back seat of his car.
Several witnesses testified that when defendant arrived at
Reitler's home on the evening of the shoot-out he stated that he
5
wanted his money and if he did not get it, somebody was going to
get killed. He stated that the bad part was that it was going to
be his son. Defendant often referred to Reitler as his son.
On November 29, 1990, the State moved for and received leave
to file an information in the District Court for Yellowstone County
charging defendant with deliberate homicide for purposely and
knowingly causing the death of Mark Reitler when he shot him on
November 23, 1990. After three days of trial, the jury returned
its verdict, finding defendant guilty of deliberate homicide.
I.
Did the District Court abuse its discretion when it denied
defendant's challenge to a juror for cause, and if so, did such
abuse affect the outcome of defendant's trial?
During jury selection, the fifteenth juror called was Kathryn
Matujsiak. In response to questions, she stated that she knew
Mitch Moe, the Highway Patrolman who arrested defendant. She
admitted that if he was called as a witness, her relationship with
him might interfere with her impartiality. However, when advised
that his testimony would not be controversial, she stated that her
familiarity with him would probably not affect her ability to be
fair.
Later during the examination of the jury, the same juror
stated that she had been a juror in another homicide trial a couple
of months earlier, and that based on that experience, it would be
hard for her to presume defendant was innocent. She also stated
that she remembered reading about the case in the paper, that based
6
on what she had read, she had formed a previous opinion about the
case, and that that opinion might also affect her ability to be
fair and impartial. In summary, Ms. Matujsiak was asked the
following question by defense counsel, and gave the following
answer:
Q. The fact that you know Officer Moe, you may be more
ready to believe his testimony. The fact you have been
through another homicide, it is hard to give the
defendant the presumption of innocence, and based upon
the fact that you may have formed an opinion based on
what you have read in the news, do you think you could
give my client, Mr. Williams, a fair trial?
JUROR : I don't think so.
MR. BEVELDON: You couldn't set that aside?
JUROR : It's a lot to set aside.
Based on those questions and answers, defendant asked to remove Ms.
Matujsiak from the jury panel for cause. The attorney for the
State had no objection to doing so. The District Court, however,
then made the following effort to rehabilitate this juror:
THE COURT: Well, Ms. Matujsiak throughout the trial, if
you are chosen to sit on the case, I would be instructing
you that it is your duty not to converse among yourselves
or to talk to anyone, or permit anyone else to discuss it
with you, the subject of the trial, nor form or express
an opinion about the case until it was finally submitted
to you. You're not telling the court that you would
disregard that instruction if I gave it to you, would
you?
JUROR: No.
THE COURT: In fact, the law requires me to give you that
instruction every time we recess.
JUROR: I remember that.
THE COURT: And you kept an open mind that time?
JUROR : Yes.
THE COURT: Even though it was difficult?
JUROR: Right.
THE COURT: That is what you would you do this time,
would you not?
JUROR: Uh-huh.
THE COURT: All right, the motion is denied.
The law, with regard to challenging jurors for cause, is set
forth at 5 46-16-115, MCA, where it provides in relevant part:
(1) Each party may challenge jurors for cause, and each
challenge must be tried by the court.
(2) A challenge for cause may be taken for all or
any of the following reasons or for any other reason that
the court determines:
. . . .
(e) having served on a trial jury that tried
another person for the offense charged or a related
offense:
. . . .
(j) having a state of mind in reference to the case
or either of the parties that would prevent the juror
from acting with entire impartiality and without
prejudice to the substantial rights of either party.
When a juror has been challenged for cause and that challenge
is denied, our standard for review of the district court's denial
is whether the district court abused its discretion. We have
previously set forth the following rule, which is applicable in
this case:
It is a difficult matter at best to ascertain the
real state of mind of a prospective juror with respect to
detecting the existence of bias or prejudice against one
accused of crime. For that reason this court has said
8
(Statev.Russell, 73 Mont. 240, 249, 235 Pac. 712, 715) that
the determination of the qualification of a juror to
serve in a case before the court "must be left largely to
the sound discretion of the trial court." Again, in State
%Hu#tnan, 89 Mont. 194, 296 Pac. 789, 790, this court
said: II. . . the trial court is the judge of the weight
to be given to the testimony adduced on a voir dire
examination." True, there are cases holding that when a
witness has once admitted bias, his subsequent statements
that he can consider the evidence impartially should be
viewed with caution. But granting the need for careful
scrutiny of the testimony of a witness who has first said
lVno'V and then said "yes," it still remains the province
of the trial court to decide where the truth lies and
with that determination the appellate court will not
interfere unless a clear abuse of discretion is shown.
State v. Russell, supra .
Statev.Allison (1948), 122 Mont. 120, 129-30, 199 P.2d 279, 285-86.
In this case, the challenged juror candidly and repeatedly
expressed her concern about her ability to be impartial in this
case. She had not one, but several reasons. She was a close
friend of the arresting officer. The incident had occurred in her
neighborhood. She read about it and had formed an opinion.
Finally, she had served as a juror in a recent homicide trial,
which by itself was sufficient statutory ground for her
disqualification.
In the face of these admissions of bias, the District Court's
rehabilitation of this witness was, at best, unpersuasive, and at
worst, threatening. She was told that she would be instructed not
to form an opinion, and then asked if she would disregard the
instructions of the court. Few people would show the kind of
contempt for a judicial officer that would have been necessary to
persist in her admissions of bias under those circumstances.
9
The court's efforts to rehabilitate this witness were
especially unnecessary in light of the fact that the State had no
objection to her disqualification and that another could have
easily been called to take her place. We conclude that the
District Court abused its discretion by denying the defendant's
challenge to Kathryn Matujsiak for cause. She should have been
excused based on both subsections (e) and (j) of § 46-16-115(2),
MCA.
However, finding that the District Court abused its discretion
is not the end of our inquiry. Criminal convictions will not be
reversed on appeal because of error committed by the trial court
unless the error was prejudicial. Section 46-20-701, MCA.
In this case, because defendant's challenge for cause was
denied, the objectionable juror was removed from the jury by use of
defendant's first peremptory challenge. Furthermore, defendant
exhausted all six of his peremptory challenges.
Section 46-16-116, MCA, provides that in non-capital cases,
both the defendant and the State are entitled to six peremptory
challenges. However, those challenges are in addition to the
challenges for cause that are provided for in § 46-16-115, MCA.
When jurors who should have been removed for cause are not removed
and must, therefore, be removed by peremptory challenge, the party
whose challenge for cause was wrongfully denied effectively loses
one of the peremptory challenges provided for by law. In other
words, the effect of the District Court's abuse of discretion in
10
this case was to reduce defendant's number of peremptory challenges
to five, rather than six.
A number of jurisdictions have held that where a district
court abuses its discretion by denying a challenge to a juror, the
error is prejudicial. For example, in Jenkinsv. Patih (Utah 1981),
627 P.2d 533, 536-37, the Utah Supreme Court held that:
Mrs. Eddins' admissions of expressed bias in the
instant case should have resulted in a successful
challenge for cause pursuant to Rule 47(f)(6). Forcing
plaintiff to use one of his peremptory challenges to
remove the juror ,resulted in prejudicial error. See
crawfordv. Manning [(Utah 1975), 542 P.2d 10911. As stated
in Wascov.Frankel, 116 Ariz. 288, at 290, 569 P.2d 230, at
232 (1977):
Peremptory challenges form an effective method of
assuring the fairness of a jury trial. Hence,
forcing a party to use his peremptory challenges to
strike jurors who should have been stricken for
cause denies the litigant a substantial right.
see a/so, PUtterSOl V. State (Wyo. 1984), 691 P.2d 253; People v. Orator (Colo.
App. 1992), 833 P.2d 819.
However, we decline to adopt the rule that an abuse of
discretion in denial of a challenge to a juror is conclusively
prejudicial and requires automatic reversal. Instead, to be
consistent with our previous decisions, we hold that when a
district court abuses its discretion by denying a challenge for
cause to a prospective juror; where the party who objected to the
juror is then required to use one of his or her peremptory
challenges to remove the juror; and where that party uses all of
his or her peremptory challenges; there is a presumption that the
district court's error was prejudicial. That presumption must,
11
however, be balanced against the totality of the circumstances in
each case to determine whether the error contributed to the
defendant's conviction. We arrive at this conclusion based on our
previous decision in Brodniakv.State (1989), 239 Mont. 110, 779 P.2d
71. In that case, when considering whether inadmissible evidence
was prejudicial, we stated that:
In Montana, an error of state law will be deemed
harmless "unless the record shows that the error was
prejudicial." Section 46-20-701, MCA. "The test of
prejudicial error requiring reversal is whether there is
a reasonable possibility the inadmissible evidence might
have contributed to the verdict. I1 State% Gray (1983), 207
Mont. 261, 268, 673 P.2d 1262, 1266; Statev. Gray (1983),
202 Mont. 445, 449-450, 659 P.2d 255, 257; Statev.LaVe
(1977) I 174 Mont. 401, 407, 571 P.2d 97, 101.
Brodniak, 779 P.2d at 73-74.
We will apply the same standard when reviewing errors
committed during jury selection.
We stated in Brodniak, 779 P.2d at 74, that "[t]he essential
question is whether there is a reasonable possibility that the
admissible evidence might have contributed to the conviction.1'
In making that determination, we applied what was referred to
as the "overwhelming evidence rule." We held that:
The overwhelming evidence rule is one method used by
this Court to ascertain whether there is a reasonable
possibility that the inadmissible evidence contributed to
the verdict. State V. McKenzie (1980), 186 Mont. 481, 533,
608 P.2d 428, 458, cert.denied, 449 U.S. 1050, 101 S. Ct.
626, 66 L. Ed. 2d 507 (1980); accord, TevZinv.PeopZe (Colo.
1986), 715 P.2d 338, 342. Also, when assessing the
prejudicial effect of an error, this Court will examine
the totality of the circumstances in which the error
occurred. See Gray, 207 Mont. at 268, 673 P.2d at 1266.
If the error involves erroneously admitted evidence, we
12
will not single out that one item of evidence to evaluate
it in isolation. To do so could magnify the prejudicial
effect of the error beyond its actual impact on the
verdict, leading to reversals for mere technical
violations of evidentiary rules.
Brodniak, 779 P. 2d at 74.
Likewise, in this case, while we conclude that the District
Court abused its discretion by denying defendant's challenge of the
juror for cause, and while we start with the presumption that its
abuse of discretion was prejudicial, we cannot consider that error
in isolation, but must put it in the context of the entire trial.
In this case, the evidence which led to defendant's conviction
was basically uncontradicted. It was established that he had an
argument with the victim over the profits from drug transactions.
He went to the victim's home, where he announced on his arrival
that if he did not receive his money someone was going to get
killed. The argument was continued and escalated. The victim
threatened to call the police. In response, defendant went to his
vehicle and obtained a gun. He returned to the home, broke in, and
shot the victim.
All of the above occurred in the presence of at least nine
witnesses who testified at trial and whose testimony was consistent
in all important respects. No witnesses were called by defendant,
and none of this evidence was rebutted. None of the State's
evidence was admitted over objection by the defendant and there was
no objection to any jury instruction offered by the State. In
short, the prosecutor in this case tried a textbook case, free from
prejudicial or irrelevant considerations, and the result should not
13
be casually set aside based on error by the District Court in which
the prosecution played no part.
After a careful review of the record, it is difficult to
conclude that any different result could have occurred if defendant
had had six peremptory challenges to the jury, rather than five.
We hold that there is no reasonable possibility that the District
Court's denial of defendant's challenge for cause to Kathryn
Matujsiak contributed to defendant's conviction for deliberate
homicide.
For future guidance, we wish to emphasize that the purpose of
5 46-16-116, MCA, is to assure that both the State and the
defendant have the same number of peremptory challenges to a jury
panel which has already passed scrutiny for cause under
§ 46-16-115, MCA. When that equal opportunity has been denied, we
will not require a defendant to prove the impossible. Prejudice
will be presumed. Therefore, when voir dire examination discloses
a serious question about a juror's ability to be fair and
impartial, that question should be resolved in favor of excusing
that juror. The role of the District Court is not to simply
establish some record from which a future argument can be made that
the juror recanted his or her admission of bias.
While there may be some temporary inconvenience to the court
and to the parties from excusing a juror for cause, that
inconvenience is minor compared to the expense and inconvenience
that results from having to retry criminal cases.
14
Even though the District Court's error did not result in
reversal of this case, we emphasize that the facts in this case are
unique and the results in this case should not lead to the
conclusion that similar irregularities during jury selection will
not lead to reversal of successful prosecutions in the future.
II.
Did the District Court err when it refused to instruct the
jury on the lesser included offense of mitigated deliberate
homicide?
Section 45-5-103, MCA, provides:
(1) A person commits the offense of mitigated deliberate
homicide when he purposely or knowingly causes the death
of another human being but does so under the influence of
extreme mental or emotional stress for which there is
reasonable explanation or excuse. The reasonableness of
such explanation or excuse shall be determined from the
viewpoint of a reasonable person in the actor's
situation.
(2) It is an affirmative defense that the defendant
acted under the influence of extreme mental or emotional
stress for which there was reasonable explanation or
excuse, the reasonableness of which shall be determined
from the viewpoint of a reasonable person in the actor's
situation. This defense constitutes a mitigating
circumstance reducing deliberate homicide to mitigated
deliberate homicide and must be proved by the defendant
by a preponderance of the evidence.
(3) Mitigated deliberate homicide is not an
included offense of deliberate homicide as defined in
45-5-102(1)(b).
In Statev.Heit (1990), 242 Mont. 488, 791 P.2d 1379, we held
that:
Generally, Ita defendant is entitled to instructions on
lessor [sic] included offenses if any evidence exists in
the record which would permit the jury to rationally find
him guilty of a lessor [sic] offense and acquit him of a
15
greater." siatev. Thot?lton (1985), 218 Mont. 317, 320, 708
P.2d 273, 276[] (quoting statev. Ostwald (1979), 180 Mont.
530, 538, 591 P.2d 646, 651). Under this rule, in order
to find Heit guilty of a lesser offense, Heit had to
present SOlIE evidence supporting the elements of
mitigated deliberate homicide as set forth in § 45-5-103,
MCA. Thus, Heit was required to offer some evidence
demonstrating that he acted under "extreme mental or
emotional stress for which there is a reasonable
explanation or excuse." i7lontton, 708 P.2d at 276,
9 45-5-103, MCA. The defendant contends that the
evidence received at trial demonstrated that there was a
struggle over the gun, and that Mr. Heit was agitated and
completely intoxicated, and that this evidence was
sufficient to warrant instructing the jury on the lesser
included offense.
This contention lacks merit. While this evidence
indicates that Mr. Heit may have been upset at the time
the crime was committed, it does not support a finding of
"extreme mental or emotional stress for which there is
reasonable explanation or excuse." Section 45-5-103(l),
MCA. Nor were there any allegations made that there was
a reasonable explanation or excuse for Heit's alleged
stress otherthantestimony indicating that the bartender
may have said something that made Heit angry. . . .
Having presented no credible evidence of mitigation and
furthermore having espoused the theory in closing
argument that he did not kill the deceased, Heit was not
entitled to an instruction on mitigated deliberate
homicide as a lesser included offense. [Citations
omitted].
Heit, 791 P.2d at 1382.
In this case, defendant offered an instruction on the lesser
included offense of mitigated deliberate homicide. The State had
no objection to such an instruction, and in fact, offered one of
its own for the stated purpose of protecting the record. However,
the District Court concluded that there was no evidence of
mitigation, and therefore, that such an instruction was
inappropriate. After thoroughly reviewing the record, we agree.
16
All of the testimony regarding defendant's demeanor when he
arrived at Reitler's home came from the State's witnesses. He was
variously described as "kind of upset," "mad," "kind of drunk," and
lVangry.V' However, as we have previously held in Heit, simply being
angry or intoxicated would not support a finding of "extreme mental
or emotional stress for which there is a reasonable explanation or
excuse." Nor was there any reasonable explanation given for
defendant's anger which led to his altercation with Reitler. The
uncontroverted evidence was that it was based on a disagreement
over drug profits, and Reitler's request that defendant leave his
home.
We conclude, as a matter of law, that there was insufficient
evidence in the record of this case to permit a jury to rationally
find defendant guilty of the lesser included offense of mitigated
deliberate homicide, and that the District Court did not err by
refusing to give defendant's proposed instruction on that offense.
For the reasons set forth above, we affirm the judgment of the
District Court.
We concur:
JJp
17
December 22, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
William F. Hooks
Attorney at Law
Appellate Defender Office
P. 0. Box 200145, Capitol Station
Helena, MT 59620-0145
Hon. Joseph P. Mazurek, Attorney General
Patricia J. Jordan, Assistant
215 N. Sanders, Justice Bldg.
Helena, MT 59620
Dennis Paxinos, County Attorney
Daniel L. Schwarz, Deputy
P.O. Box 35025
Billings, MT 59107
ED SMITH