No. 01-245
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 116
ROBERT J. ROBBINS,
Petitioner/Appellant,
v.
STATE OF MONTANA,
Respondent/Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable David Cybulski, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Scott Albers, Attorney at Law, Great Falls, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
Brant Light, Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: January 31, 2002
Decided: June 5, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 The Petitioner, Robert J. Robbins, filed a petition for
postconviction relief in the District Court for the Eighth
Judicial District in Cascade County. The District Court denied the
petition based on its conclusion that State v. LaMere, 2000 MT 45,
298 Mont. 358, 2 P.3d 204, did not retroactively apply to Robbins'
petition. Robbins appeals from the District Court's denial of his
petition. We reverse the District Court and remand for a new
trial.
¶2 We find the following issue dispositive:
¶3 Did the District Court err when it concluded that State v.
LaMere, 2000 MT 45, 298 Mont. 358, 2 P.3d 204, did not
retroactively apply to Robbins' petition?
FACTUAL BACKGROUND
¶4 On July 20, 1995, the Petitioner, Robert J. Robbins, was
charged by Information filed in the District Court for the Eighth
Judicial District in Cascade County with deliberate homicide in
violation of § 45-5-102(1)(a), MCA, and with robbery in violation
of § 45-5-401, MCA. Before trial, Robbins moved to quash the jury
panel because prospective jurors had not been summoned pursuant to
§ 3-15-505, MCA (1997). The District Court denied Robbins' motion
based on its finding that the clerk of court had substantially
complied with the statute.
¶5 The jury convicted Robbins of the offenses charged and the
District Court sentenced Robbins to the Montana State Prison for 75
years for deliberate homicide, 40 years for robbery, and 25 years
2
as a persistent felony offender. The District Court ordered all
sentences to run consecutively and restricted Robbins' parole
eligibility for 20 years.
¶6 On direct appeal, Robbins argued that the clerk of court
violated § 3-15-505, MCA (1997), when she summoned jurors by
telephone instead of by mail or personal service. According to
Robbins, the clerk's failure to comply with § 3-15-505, MCA (1997),
deprived him of his constitutional and statutory rights to a fair
trial.
¶7 We addressed these arguments in State v. Robbins, 1998 MT 297,
292 Mont. 23, 971 P.2d 359, and held that the District Court erred
when it found that the clerk was in substantial compliance with the
statute but that the error was harmless because Robbins had not
introduced any evidence that he was actually prejudiced. Robbins,
¶ 58.
¶8 On February 15, 2000, we decided State v. LaMere, 2000 MT 45,
298 Mont. 358, 2 P.3d 204.
¶9 On April 10, 2000, Robbins filed a petition for postconviction
relief. First, Robbins contended that he was denied his
constitutional right to a fair and impartial jury. Second, he
contended that unless this Court's opinion in State v. LaMere was
applied to his case, his rights to due process and to be free from
cruel and unusual punishment would be violated. The District Court
denied Robbins' petition in an order dated December 29, 2000.
Although it noted that our holding in LaMere seemed to require
reversal, the District Court ultimately concluded that our holding
3
in Robbins' direct appeal was the law of the case and therefore
the District Court was bound by that decision.
¶10 Robbins now appeals from the District Court order which denied
his petition for postconviction relief. We reverse the District
Court and remand for a new trial.
4
DISCUSSION
¶11 Did the District Court err when it concluded that State v.
LaMere, 2000 MT 45, 298 Mont. 358, 2 P.3d 204, did not
retroactively apply to Robbins' petition?
¶12 Robbins urges us to retroactively apply the rule we announced
in LaMere and reverse his conviction. The State asserts that the
issues raised in Robbins' petition are procedurally barred because
they were not raised on direct appeal. The State further contends
that unlike LaMere, the alleged error in this case was not
"structural" error and that automatic reversal is not required.
Finally, the State argues that retroactive application of LaMere is
barred by Teague v. Lane (1989), 489 U.S. 288, 109 S.Ct. 1060, 103
L.Ed.2d 334.
¶13 We conclude that the District Court erred when it refused to
apply LaMere to Robbins' petition. LaMere specifically overruled
Robbins to the extent that it held that a violation of § 3-15-505,
MCA (1997), could be harmless error. LaMere, ¶ 61. Instead, we
held that failure to properly summon jurors, in violation of § 3-
15-505, MCA (1997), implicates the constitutional right to an
impartial jury in violation of the Sixth Amendment and affects the
very framework in which the trial proceeds. We characterized the
error as structural as opposed to trial error and held that the
right to an impartial jury is so essential to the concept of a fair
trial that its violation can never be considered harmless. LaMere,
¶ 50.
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¶14 The "law of the case" doctrine invoked by the District Court
is inapplicable to these facts. That doctrine provides that where
a decision has been rendered by the Supreme Court on a particular
issue between the same parties in the same case, that decision is
binding on the parties and the courts and cannot be relitigated in
the trial court or on a subsequent appeal. See Belgrade State Bank
v. Swainson (1978), 176 Mont. 444, 446, 578 P.2d 1166, 1167.
However, we have also recognized that even though an issue has been
addressed and determined adversely to a prisoner on direct appeal,
a court may reconsider the issue in postconviction proceedings when
there has been a substantial change in the applicable law. Coleman
v. State (1981), 194 Mont. 428, 440, 633 P.2d 624, 631. Since we
held in LaMere that errors in jury selection are no longer amenable
to the harmless error analysis we employed in Robbins' direct
appeal, we conclude there has been a substantial change in the
applicable law and the application of LaMere is not precluded by
the "law of the case" doctrine.
¶15 The State's contentions that Robbins waived the constitutional
argument that he makes in this case or that LaMere is inapplicable
because based on constitutional considerations, whereas Robbins'
argument is primarily statutory, are also without merit. Robbins
and LaMere made the same successful argument in their direct
appeals. That argument was that the clerk of court failed to
summon jurors in accordance with the statutory requirements of § 3-
15-505, MCA (1997). The identity of the two defendants' arguments
is apparent from our LaMere opinion where we stated:
6
In Robbins, the defendant challenged the telephone-
dependent summoning process utilized in Cascade County as
failing to substantially comply with § 3-15-505, MCA
(1997), in that it failed to serve prospective jurors
with a jury summons. We agreed, . . . .
. . .
We hold that the telephone summoning of jurors
failed, as in Robbins, to substantially comply with § 3-
15-505, MCA (1997).
LaMere, ¶¶ 16-17.
¶16 The only difference between our holding in Robbins and LaMere
is that in Robbins we accepted the State's contention that the
defendant had not been prejudiced. See LaMere, ¶ 18. In LaMere,
we overruled that aspect of Robbins and returned to a per se rule
of reversal for failure to substantially comply with Montana's
statutes concerning procurement of a jury. We held:
However, after doing extensive research far beyond
that submitted by the parties, we choose to overrule
Robbins and return to a per se rule of reversal for a
failure to substantially comply with Montana statutes
governing the procurement of a trial jury. [Underlining
added.]
LaMere, ¶ 25.
¶17 The State's confusion in this regard appears to be based not
on arguments which Robbins previously failed to raise on appeal and
not on the fact that Robbins' statutory argument is different than
LaMere's constitutional argument; it seems to be based on our
ultimate conclusion that by ignoring the statutory requirements for
procurement of a jury, LaMere's constitutional right to an
impartial jury was violated. We explained as follows:
Under this Court's case law, the statutory procedures
have been construed as designed " 'to carry out the
constitutional guarantee' " of " 'a speedy, public trial
by an impartial jury.' " Deeds, 130 Mont. at 510-11, 305
7
P.2d at 325 (quoting Porter, 125 Mont. at 506, 242 P.2d
at 986 (quoting Art. III, Sec. 16, Mont. Const. (1889))).
A defendant's statutory right to challenge the jury
panel for a substantial failure to comply with the law
governing jury selection is but "a legislative
amplification of the constitutional . . . right to 'a
speedy, public trial by an impartial jury.' " Groom, 49
Mont. at 359, 141 P. at 858. That the " 'jury shall be
selected according to methods established' " is intended
" 'to secure a just and impartial administration of the
jury system.' " Diedtman, 58 Mont. at 18, 190 P. at 118-
19 (quoting People v. McQuade (N.Y. 1888), 18 N.E. 156,
165). Since "a substantial compliance is necessary in
order to meet the constitutional requirement," a
defendant is therefore entitled "to a [jury] panel drawn
in substantial conformity with the requirements of
statute." Landry, 29 Mont. at 223-24, 74 P. at 420.
. . . .
In short, the objective procedures established by
the Montana Legislature for the random selection of
jurors are intended to protect a criminal defendant's
fundamental right to a fair and impartial jury, as
guaranteed by Article II, Sections 24 and 26 of the
Montana Constitution and by the Sixth and Fourteenth
Amendments to the United States Constitution. We
construe the substantial compliance standard as being
designed to protect a defendant's fundamental right to an
impartial jury, primarily, by encouraging reasonably
strict compliance with statutory procedures intended to
implement, and thereby secure, the fair cross-section
guarantee of the Sixth Amendment.
LaMere, ¶¶ 32, 35.
¶18 Finally, the State contends that LaMere cannot be
retroactively applied to Robbins in a collateral proceeding such as
postconviction relief based on the test for retroactive application
set forth by the United States Supreme Court in Teague v. Lane
(1989), 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, and followed
by this Court in State v. Egelhoff (1995), 272 Mont. 114, 900 P.2d
260 (rev'd on other grounds by Montana v. Egelhoff (1996), 518 U.S.
37, 116 S.Ct. 2013, 135 L.Ed.2d 361). In Teague, the United States
8
Supreme Court held that, with certain exceptions, new
constitutional rules will not be applicable to those cases which
have become final before the new rules are announced. 489 U.S. at
310, 109 S.Ct. at 1075. However, assuming that LaMere did
establish a new rule rather than return to an old rule regarding
per se reversal for error in the jury selection process, as the
previously quoted language suggests, the State concedes, "that a
new rule should be applied retroactively if it requires the
observance of 'those procedures that . . . are 'implicit in the
concept of ordered liberty,' ' . . . ." See Teague, 49 U.S. at
310-11, 109 S.Ct. at 1076. It is hard to read the LaMere opinion
without coming to the conclusion that any state action which denies
a defendant an impartial jury as guaranteed by the state and
federal constitutions violates procedures "implicit in the concept
of ordered liberty." We held:
However, some constitutional violations "by their very
nature cast so much doubt on the fairness of the trial
process that, as a matter of law, they can never be
considered harmless. Sixth Amendment violations that
pervade the entire proceeding fall within this category."
[Citation omitted.]
LaMere, ¶ 40. Based on that holding, we concluded that:
In summary, then, a material failure to
substantially comply with Montana statutes governing the
procurement of a trial jury cannot be treated as harmless
error for the following reasons: . . . (4) the
impartiality of the jury goes to the very integrity of
our justice system, and the right to an impartial jury is
so essential to our conception of a fair trial that its
violation cannot be considered harmless error.
LaMere, ¶ 50.
9
¶19 We conclude that a right which goes to the very integrity of
our justice system is also "implicit in the concept of ordered
liberty" for the purposes of coming within the exception to the
Teague retroactivity analysis. Therefore, we conclude that Robbins
is entitled to the retroactive application of our decision in
LaMere and reverse the judgment of the District Court on that
basis.
¶20 The parties' final brief was filed in this matter on November
7, 2001. On March 26, 2002, we decided State v. Whitehorn, 2002 MT
54, 309 Mont. 63, 43 P.3d 922. In Whitehorn, we held that the
Teague retroactivity analysis applies only to procedural rules and
that substantive rules of law should be given retroactive
application without regard to Teague analysis. On that basis, we
overruled our decision in State v. Nichols, 1999 MT 212, 295 Mont.
489, 986 P.2d 1093, to the extent that it barred retroactive
application of our double jeopardy decision in State v. Guillaume,
1999 MT 29, 293 Mont. 224, 975 P.2d 312. We concede that there is
a strong argument that a process which denies Robbins his
constitutional right to an impartial jury implicates a substantive
rather than a procedural right. However, because Whitehorn was
decided after final briefing in this matter and supplemental
briefing was not requested; and, because the same result follows
from the application of the Teague analysis, we need not conclude
in this case whether procedural or substantive rights are involved.
Assuming for purposes of this case only that Robbins' rights were
procedural, because that is the basis on which the case was
10
briefed, we conclude he is still entitled to retroactive
application of our LaMere decision.
¶21 For these reasons, the judgment of the District Court is
reversed and this case is remanded to the District Court for a new
trial.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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