96-293
No. 96-293
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JOE EDWARD CHASTAIN,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
Honorable Douglas G. Harkin, Judge Presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffrey T. Renz, Montana Defender Project, Missoula, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General; Pamela Collins,
Assistant Attorney General, Helena, Montana
Robert L. Zimmerman, Deputy County Attorney, Missoula, Montana
Submitted on Briefs: September 4, 1997
Decided: October 10, 1997
Filed:
__________________________________________
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
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Joe Edward Chastain was convicted of sexual intercourse without consent and
sexual assault, in a jury trial in the Fourth Judicial District Court, Missoula
County. He
appeals. We reverse.
The dispositive issue is whether Chastain was denied effective assistance of
counsel
through omissions by his attorney during and as a result of voir dire.
In May 1995, Chastain was arrested on two counts of sexual intercourse without
consent and one count of sexual assault. The three complaining witnesses were young
female relatives of Chastain. The charges alleged that Chastain digitally fondled
one
girl's, and penetrated the other two girls', vaginal areas during a camping trip in
summer
1992.
A two-day jury trial was held on November 7 and 8, 1995. The jury found
Chastain not guilty of one count of sexual intercourse without consent, but guilty
of the
other count of sexual intercourse without consent and of sexual assault. Chastain
was
sentenced to serve forty years at Montana State Prison.
Discussion
Was Chastain denied effective assistance of counsel through omissions by his
counsel during and as a result of voir dire?
A criminal defendant is denied effective assistance of counsel if: (1) his
counsel's
conduct falls short of the range reasonably demanded in light of the Sixth Amendment
to
the United States Constitution; and (2) counsel's failure is prejudicial.
Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
During voir dire, Chastain's defense counsel asked prospective jurors whether
they had heard about this case. One panelist responded that he had read about the
case
in the newspaper and that he had strong feelings. At that point, defense counsel
asked
that this prospective juror be further interviewed in chambers, to which the court
agreed.
The following colloquy occurred in chambers.
THE COURT: Let the record reflect the jury is not present.
Q. [BY DEFENSE COUNSEL] I didn't mean to embarrass you or
anything; but, from my trial strategy, you are a vital part of being on the
jury or not on the jury, so my question is: You said you had strong feelings
about the case?
A. Well, not so much about this case. My little sister was abducted when
she was about 16 years old, or actually she was driving a car and somebody
jumped in her car. Fortunately she bailed out and he was caught, but I
have really strong feelings about what could have happened, and it could
taint my judgment.
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Q. Okay. It could?
A. Uh-huh.
Q. Um, of course, not favorably against the Defendant, probably--
A. Probably not favorably, no.
Q. Okay. That's all I needed to know. I just wanted to make sure we
were in chambers.
A. I wasn't going to say anything out there.
THE COURT: Do you have any questions?
[COUNSEL FOR THE STATE]: No.
THE COURT: Thank you, sir.
Defense counsel did not challenge this prospective juror, who served on the jury.
In answer to the same voir dire question from defense counsel, a second member
of the jury panel said that she remembered seeing an article about the case in the
newspaper, but did not remember reading the article. Defense counsel questioned her
as
follows:
Q. From what you do remember, how does it affect your duty in this
particular case?
A. I don't really know what to do.
Q. Do you think that what you've read would impair your judgment
toward my client or towards the State?
A. It's hard for me to say. I do have--when I read about something like
that, I do kind of evoke some strong feelings.
Counsel then asked the prospective juror to verify her name, but he did not further
pursue
this line of inquiry. Nor did he challenge her as a juror. The woman served on the
jury.
A criminal defendant has the right to challenge a prospective juror for cause
if that
prospective juror "[has] a state of mind in reference to the case or to either of
the parties
that would prevent the juror from acting with entire impartiality and without
prejudice to
the substantial rights of either party." Section 46-16-115(2)(j), MCA. There is no
statutory limit upon the number of challenges for cause which a party may raise. "The
purpose of voir dire in a criminal proceeding is to determine the existence of bias
and
prejudice on the part of prospective jurors and to enable counsel to intelligently
exercise
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his peremptory challenges." Great Falls Tribune v. District Court (1980), 186 Mont.
433, 440, 608 P.2d 116, 120. In addition to the right to raise challenges for
cause, a
defendant in a criminal trial is allowed six peremptory challenges to prospective
jurors.
Section 46-16-116, MCA.
Juror bias may be presumed by reason of potential for substantial emotional
involvement as expressed in the record. United States v. Eubanks (9th Cir. 1979),
591
F.2d 513, 517. Moreover:
A court must excuse a prospective juror if actual bias is discovered
during voir dire. Bias can be revealed by a juror's express admission of
that fact, but, more frequently, jurors are reluctant to admit actual bias, and
the reality of their biased attitudes must be revealed by circumstantial
evidence. We agree with the observation in Kiernan v. Van Schaik (3rd
Cir. 1965), 347 F.2d 775, 781: "That men will be prone to favor that side
of a cause with which they identify themselves either economically,
socially, or emotionally is a fundamental fact of human character."
United States v. Allsup (9th Cir. 1977), 566 F.2d 68, 71.
It is incumbent upon a party to develop information in the record that
demonstrates
a juror's bias as to a party or an issue in the case. Defense counsel had a clear
duty to
ensure Chastain's right to a fair trial by a panel of impartial jurors.
The principal way in which this right to trial by "indifferent" jurors is
secured is through the system of challenges exercised during voir dire.
Inhibition of the right to challenge peremptorily or for cause is usually
deemed prejudicial error, without a showing of actual prejudice.
Allsup, 566 F.2d at 71.
In this case, the statements of both prospective jurors quoted above demanded,
at
a minimum, additional inquiry. Both prospective jurors expressed reservations about
their ability to judge this case fairly. Yet counsel failed to follow up with
additional
questions asking whether those prospective jurors could set aside their feelings and
render
a fair verdict. Nothing in the record explains this failure. Other than counsel's
bare
comment that the first prospective juror was "a vital part of being on the jury or
not on
the jury," the record does not reflect a tactical decision by defense counsel not to
challenge these two jurors. Nor does the record explain counsel's failure to
exclude these
two jurors under the peremptory challenges allowed pursuant to 46-16-116, MCA.
The evidence against Chastain was not so overwhelming that defense counsel's
failure to examine these jurors for cause or to exercise even one for-cause
challenge can
be viewed as harmless error. Chastain was acquitted on one of the charges of sexual
intercourse without consent. There was no physical evidence. Three years passed
between the camping trip and when Chastain was arrested and formally charged. The
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accusations were made by children of a young age. Chastain had never before been
accused of similar acts.
Where, as here, defense counsel abandons his client's right to challenge a
juror for
no apparent reason, error must be attributed to the lawyer. As stated in Eubanks,
591
F.2d at 517, the presence on the jury of even one juror who could not fairly assess
the
credibility of the witnesses must be presumed prejudicial. Thus, the two prongs of
the
Strickland test for ineffective assistance of counsel are met. We hold that, under
the
circumstances here presented, counsel's failure to take steps to prevent the
presence on
the jury of two jurors who may not have been able to fairly serve amounts to
ineffective
assistance of counsel. Because we reverse Chastain's conviction on that basis, we
need
not consider the other issues raised on appeal.
Chastain's conviction is reversed and this case is remanded for retrial or other
further proceedings consistent with this Opinion.
/S/ J. A. TURNAGE
We concur:
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
Justice Karla M. Gray, dissenting.
I respectfully dissent from the Court's opinion. As I read it, that opinion
strongly
suggests that the two jurors at issue successfully could, and should, have been
challenged
for cause pursuant to the governing statute. The Court also determines that counsel
was
ineffective in failing to follow up with further inquiry to the two prospective
jurors,
assumes that bias sufficient to establish grounds for challenges for cause would
have been
established had additional inquiry been made, and then concludes that Chastain has
established the two Strickland prongs necessary for ineffective assistance of
counsel. I
cannot agree to any of these determinations.
The Court correctly quotes 46-16-115(2)(j), MCA, in stating that a prospective
juror may be challenged for cause if that person has "a state of mind in reference
to the
case or to either of the parties that would prevent the juror from acting with entire
impartiality and without prejudice to the substantial rights of either party." In
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that
regard, we have held that "[i]t is only where [prospective jurors] form fixed
opinions on
the guilt or innocence of the defendant which they would not be able to lay aside and
render a verdict based solely on the evidence presented in court that [the
prospective
jurors] become disqualified as jurors." Great Falls Tribune v. District Court
(1980), 186
Mont. 433, 439-40, 608 P.2d 116, 120. When a challenge for cause is made, it is not
automatically granted, but is tried by the district court. See 46-16-115(1),
MCA. Both
parties then have an opportunity to make a record with regard to whether grounds for
excusing the juror for cause exist.
It is clear that the record as it exists in this case would not--on a stand-
alone basis,
without more--have supported a successful challenge for cause of either of these two
potential jurors. Neither prospective juror indicated a fixed opinion of guilt much
less
any opinion of guilt which they would have been unable to set aside. The male
panelist
said that his really strong feelings about what could have happened in his sister's
case
"could" taint his judgment in Chastain's case and evince feelings which would not be
favorable to the defendant. The female panelist stated only that she had seen a
newspaper
article about the case, that she did not remember reading it, and that when she read
about
"something like that, I do kind of evoke some strong feelings." On this record,
neither
of these jurors meets the statutory standard of "a state of mind in reference to the
case
or to either of the parties that would prevent the juror from acting with entire
impartiality
and without prejudice to the substantial rights of [the defendant]."
Moreover, while I agree with the Court that it is the party's obligation to
develop
information that demonstrates a juror's bias as to that party or an issue in the
case, the
record before us does not support a conclusion that defense counsel did not
discharge this
obligation here. One must assume that these jurors were, indeed, biased in order to
conclude that defense counsel's performance was deficient here; I am not willing to
join
the Court in making that assumption. While the Court concludes that defense counsel
erroneously abandoned his right to challenge for cause, it is just as likely that,
in not
following up with these prospective jurors on the basis of their expressed feelings
which
were almost entirely unrelated to the case at hand, defense counsel was aware of the
relatively difficult task of establishing bias under 46-16-115(2)(j), MCA, and
Great
Falls Tribune. In my opinion, Chastain has not established that counsel's
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performance
was deficient and, therefore, I would conclude that he did not meet the first
Strickland
prong.
Furthermore, while I agree with the Court's adoption of the Allsup rationale
that
the presence of a juror who could not fairly assess the credibility of the witnesses
must
be presumed prejudicial, I submit that the record before us does not establish the
presence
of such a juror in this case and, as a result, the Allsup rationale is
inapplicable. The fact
is that the empaneled jury, including both of the jurors at issue in this ineffective
assistance of counsel claim, acquitted Chastain of one count of sexual intercourse
without
consent. That fact alone, in my view, belies any Allsup notion that the case
presently
before us involves a juror who could not fairly assess the credibility of the
witnesses.
Absent such a circumstance in which prejudice properly may be presumed, the
burden of establishing prejudice, as required by Strickland, remains on the
defendant.
The record before us contains substantial evidence in support of the charges against
Chastain and he was acquitted of one charge of sexual intercourse without consent.
It is
my view that, on this record, Chastain has not established prejudice and that, even
assuming counsel had a duty to follow up with further inquiry of these potential
jurors,
the second Strickland prong is not met.
I would conclude that Chastain has not established ineffective assistance of
counsel
and, with regard to the second issue he raises, that sufficient evidence supports
the jury
verdict finding him guilty of one count of sexual intercourse without consent and
sexual
assault. As a result, I would affirm the District Court.
/S/ KARLA M. GRAY
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