No. 92-006
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ANGIN McNATT,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Julie A. Macek, Attorney at Law, Great Falls,
Montana; William F. Hooks, Appellate Defender's
Office, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General,
Carol E. Schmidt, Assistant Attorney General,
Helena, Montana; Patrick L. Paul, Cascade
County Attorney, Great Falls, Montana
Submitted on Briefs: October 8, 1992
Decided: April 5, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Angin McNatt was convicted of felony sexual assault
on August 7, 1991, by the Eighth Judicial District Court, Cascade
County. During the trial, defense counsel moved for a mistrial
based on a claim of prejudice due to juror misconduct. This motion
was denied, as was a similar motion for a new trial made after the
jury verdict. McNatt appeals from the denial of these motions. We
affirm.
The following issues are presented on appeal:
1. Did the District Court abuse i s discretion when it
denied McNatt1smotions for mistrial and a new trial after a juror
interrupted defense counsel during cross-examination of a witness?
2. Did the District Court's suspension of the
cross-examination of a witness deprive M c N a t t of his constitutional
right to confront and cross-examine that witness?
Defendant was charged with sexually assaulting an
eight-year-old girl, F. S. , on the evening of November 16, 1990,
when he was babysitting F.S. and his two stepdaughters, Tarnika, age
eleven, and Tasha, age nine. During the trial, Tasha testified on
direct examination that F.S. described to her that night what
McNatt had done.
On cross-examination, defense counsel sought to impeach Tasha
on the issue of when F.S. had told Tasha about the sexual assault.
At four different times during cross-examination, Tasha was asked
if she remembered stating to defense counsel during a pretrial
2
.
interview that F. S did not mention the assault until the next day.
Tasha related that she remembered the interview, where the
interview took place, and that it was important to tell the truth.
However, in response to the question of whether she remembered
giving a different answer at the interview than during her
testimony, she got upset, started to cry, and responded no. The
fourth time defense counsel asked this question the State raised an
"asked and answeredM objection.
The court did not specifically rule on the objection, but
observed that this question was "the point where [Tasha] breaks
down all the time." The following exchange then took place:
Q. (By Defense Counsel): Tasha, we can talk about
something else, okay? Have you had a chance to talk to
[ F . S . ] about this since it happened?
A. (Witness shakes head in a negative manner)
A JUROR: Your honor, I cannot sit through anymore
questioning to this little girl. If I am in contempt of
court, I am in contempt, and I will settle with you. I
must be excused right now if this questioning is going to
continue .
THE COURT: Yes, I think he is right. I think we have
put this little girl through enough now. Take her off
the stand.
In chambers, defense counsel moved for a mistrial due to this
outburst by the juror based on the juroris inability to remain fair
and impartial, and the potential prejudicial effect this incident
had on the entire jury panel. In the alternative, defense counsel
requested that an alternate juror replace the juror who made the
statement. The court denied this motion, finding no prejudice to
either side as a result of this incident and noting that, while the
statement may have indicated the juror's sympathy for the witness,
it did not mean he was "for or against defendant."
During McNatt's presentation of his evidence, counsel called
the paralegal who had accompanied her to the pretrial interview
with Tasha to testify that there were inconsistencies between
Tasha's prior statements and her testimony on direct examination.
The paralegal testified that Tasha had previously stated that F.S.
did not tell her anything about the assault until the next day.
The following day McNatt renewed his motion for mistrial due
to the juror's outburst, alleging that he had been denied the right
to cross-examine the witness because she had been removed from the
stand before the defense had completed its questioning. This
motion was denied, and the jury subsequently found McNatt guilty of
felony sexual assault.
On September 6, 1991, defendant again moved for a new trial on
the grounds that the juror's interruption during trial deprived him
of a fair and impartial trial. After hearing oral arguments, the
court found that the juror's remarks had not indicated any bias
against the defendant but were motivated by nonprejudicial sympathy
for the child witness. The motion was denied, and on October 1,
1991, McNatt was sentenced to ten years in prison, with five
suspended. The sentence included the condition that McNatt not be
released from prison until undergoing sex offender evaluation and
treatment. Notice of appeal was filed on October 2, 1991.
4
I.
Did the District Court abuse its discretion when it denied
McNatt's motions for mistrial and a new trial after a juror
interrupted defense counsel during cross-examination of a witness?
The standard of review for reversing a lower court's ruling on
a motion for mistrial requires clear and convincing evidence that
the trial court's ruling was erroneous. State v. Gambrel (1990), 246
Mont 84, 803 P.2d 1071; Statev.Sd0iS (1988), 235 Mont. 276, 766 P.2d
1306. Because the trial court is in the best position to observe
the jurors and determine the potential for prejudice when
allegations of jury misconduct are raised, the court has
significant latitude when ruling on these matters, and its
determination is given considerable weight by this Court. State v.
Eagen (1978), 178 Mont. 67, 582 P.2d 1195. We have also held that
the grant or denial of a motion for a new trial is within the
discretion of the trial court and will not be overturned unless it
is shown that the defendant was deprived of a fair and impartial
trial. Statev.Gambre1, 803 P.2d at 1076; Statev.Brush (1987), 228 Mont.
247, 741 P.2d 1333. In this instance, we conclude that the
required showing of clear error to overturn the District Court's
rulings on the motions for mistrial and a new trial has not been
met and conclude that the court did not abuse its discretion in
denying McNatt's motions.
Citing this Court's holdings in Statev. DeGraw (1988), 235 Mont.
53, 764 P.2d 1290, and Statev. Murray (l987), 228 Mont. 125, 741 P.2d
759, where we stated that jury misconduct tending to injure the
defendant creates a presumption of prejudice to the defendant which
the State must rebut by evidence of no injury, McNatt contends the
presumption of prejudice remains because the State failed to meet
this burden. When the court denied his motions and refused to
question the juror on his ability to remain fair and impartial in
light of this presumed prejudice, McNatt claims he was denied his
constitutional right to a trial by a fair and impartial jury.
Although McNatt correctly states our holdings in regard to a
rebuttable presumption of prejudice arising from jury misconduct,
we have previously made clear that this burden shifts to the State
only after there has been a threshold showing of misconduct which
iniures or prejudices the defendant. State v Hedrick (1987), 229 Mont
. .
145, 745 P.2d 355; Statev.Dickens (l982), 198 Mont. 482, 647 P.2d 338.
As we recently emphasized in State v. Sor-Lokken (1991), 247 Mont. 343,
805 P.2d 1367, lValleged jury misconduct must affect a material
matter in dispute and prejudice the complaining party."
In this instance, we find no initial showing that the juror's
outburst resulted in prejudice to McNatt, and we will not make this
inference when the District Court was in the best position to
witness the incident and to evaluate the potential for prejudice.
The comment occurred when a witness, who was not the victim, was
being cross-examined on a matter that was not directly related to
the elements of the alleged crime. It occurred while she was being
asked when she recalled being told about the incident. The comment
itself did not indicate any hostility toward the defendant, nor did
it indicate that the juror had formed an opinion in relation to the
defendant.
The trial judge, able to put the juror's remark into context
and to assess the effect of the juror's conduct on the jury panel,
consistently found no evidence of prejudice against McNatt. Based
on in-court observations, the judge found that the comment did not
place blame on anyone, but was prompted by the fact that the juror
"felt sorry for the little girlw after she repeatedly became upset
by the same question.
McNatt contends that he was not only injured by the juror's
statement, but by the reaction of the judge when he agreed with the
juror and stated: "I think he is right . . . we have put this
little girl through enough now.'' McNatt claims that this
concurrence in the juror's statement, which was expressed to the
entire jury panel, was extremely prejudicial.
We have cautioned that "to avoid prejudice to the defendant,
the judge in a criminal trial should avoid making remarks which are
calculated in any way to influence the minds of the jury. State v.
Dawson (1988), 233 Mont. 345, 354, 761 P.2d 352, 358. However,
this remark did not indicate prejudice against McNatt; nor did it
indicate an effort by the judge to influence the jury. We find
nothing in the record to support the presumption of "extreme
prejudicet1
upon which McNatt bases his argument.
In the absence of a showing of prejudice to McNatt resulting
from the juror's outburst, the misconduct in itself is insufficient
to entitle him to a mistrial or new trial. We conclude that the
court's denial of McNattgsmotions was not an abuse of discretion.
11.
Did the District Court's suspension of the cross-examination
of a witness deprive McNatt of his constitutional right to confront
and cross-examine that witness?
McNatt claims that due to the juror's outburst, the witness,
Tasha, was removed from the witness stand while she was in the
process of being impeached and before defense counsel was finished
questioning her on an issue directly related to her credibility.
He argues that this was a denial of his constitutionally protected
right to cross-examine adverse witnesses and is, therefore, ground
for reversal. Citing Davis v Alaska (1974), 415 U.S. 308, 318, McNatt
.
contends that if the right to effective cross-examination is
denied, constitutional error exists without the need to show actual
injury.
The State counters with the argument that, while the absolute
denial of the right to confront and cross-examine a witness would
be an impermissible deprivation of the accused~sconstitutional
right, the defendant's right to cross-examine is not absolute. The
State cites State v. Gommenginger (l990), 242 Mont. 265, 274, 790 P.2d
455, 461, for the proposition that it is within the trial court's
discretion to exercise reasonable control over the mode of
interrogating witnesses. Specifically, in this instance, the State
claims the court acted within its discretion in deciding at what
point the right to confront and cross-examine Tasha had been
satisfied and beyond which point cross-examination would have been
unreasonable.
The 1972 Montana Constitution and subsequent cases analyzing
the confrontation clause have made it abundantly clear that full
cross-examination is a critical aspect of the right of
confrontation. Stale v Youtzg (1991), 249 Mont. 257, 815 P.2d 590.
.
Balanced against this right of confrontation is Rule 611(a),
M.R.Evid., which provides that the district court has discretion in
exercising reasonable control over the mode and order of
interrogating witnesses so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and (3) protect witnesses
from harassment or undue embarrassment. We have held, however,
that the court's discretion in exercising this control becomes
operative only after the constitutionally required threshold level
of inquiry has been afforded the defendant. Gommenginger, 790 P.2d
at 461, (citing UtzitedStatesv. Tracq (1st Cir. 1982), 675 F.2d 433, 437).
After reviewing the record in this instance, we hold that the
trial court did not deprive NcNatt of his constitutionally
guaranteed right to confront and cross-examine witnesses when it
removedthe nine-year-old child flromthe stand after she repeatedly
broke down in tears at a certain point in the questioning. The
line of questioning at the time of the juror's interruption and
Tashats removal from the stand was intended to raise questions
about her credibility due to the fact that her pretrial statement
c o n f l i c t e d with her t r i a l testimony. Even though Tasha never gave
the specific answer which defense counsel was attempting to elicit,
it was not unreasonable for the judge, after the question was
repeated several times, to decide that continued questioning would
probably not accomplish anything further.
Moreover, the paralegal's subsequent testimony, which
confinned the inference raised in the question asked of Tasha,
effectively put her credibility into issue. Although McNatt argues
that testimony by a third party is not as effective as an admission
by the party being questioned, the record does not suggest that
continued pressure from defense counsel would have resulted in
anything other than further loss of composure by the witness.
Defense counsel admitted in chambers that, while she had a few
questions left for Tasha, she decided not to anger the jury by
attempting to continue questioning her and immediately objecting to
Tashals removal from the stand. However, the record clearly
demonstrates that the court was willing to allow defense counsel to
10
resume questioning at a later point in time if necessary and did
not permanently foreclose further cross-examination on this or
other issues.
In State v Short (1985), 217 Mont. 62, 68, 702 P.2d 979, 982,
.
after considering a similar issue, we stated:
This cross-examination brought out all the information
necessary to argue the credibility ... of this witness
to the jury. We hold that limiting the extent of the
cross-examination .. . did not violate [the defendant's]
right to confrontation of witnesses and was not an abuse
of the trial court's discretion.
Our reasoning expressed in Short applies in this case. The
cross-examination of Tasha, supplemented with the testimony of the
paralegal, adequately brought out the information necessary to
argue Tashalscredibility to the jury. Additionally, the court did
not foreclose defense counsel's ability to resume questioning if
there were other areas of Tashalstestimony she wished to explore.
We hold that the court's removal of Tasha from the stand after the
juror's outburst was a reasonable exercise of its discretion and
did not violate McNattls constitutional right of confrontation.
For these reasons, we affirm the judgment of the District
Court.
we concur: