No. 04-216
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 112
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GEORGE WILLIAM PARRISH,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead, Cause No. DC-01-355(A),
The Honorable Ted O. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel R. Wilson, Measure & Wilson, P.C., Kalispell, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana
Ed Corrigan, County Attorney; Daniel M. Guzynski, Deputy County
Attorney, Kalispell, Montana
Submitted on Briefs: April 5, 2005
Decided: May 4, 2005
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 George William Parrish (Parrish) appeals from the denial of his motion for a new trial
by the Eleventh Judicial District Court, Flathead County. We affirm except for the limited
issue of whether the District Court improperly ordered Parrish to pay expert witness fees and
expenses beyond the $10 per diem set out in § 25-10-501, MCA. The State concedes this
point and we therefore remand solely for reassessing witness costs.
¶2 We must determine whether the District Court erred by denying Parrish’s motion for
a new trial based upon the State’s alleged exercise of peremptory challenges during jury
selection in a manner that intentionally excluded men from the jury in violation of Parrish’s
right to equal protection under the United States and Montana Constitutions.
BACKGROUND
¶3 A jury convicted Parrish of two felony counts of sexual assault and two felony counts
of sexual intercourse without consent involving his two step-daughters. At Parrish’s trial,
as with any jury trial, the District Court and counsel for the parties selected a jury from the
venire through the voir dire process. The District Court dismissed potential jurors for cause,
and the State and Parrish’s counsel exercised their six peremptory challenges to excuse
others, until the District Court eventually seated a jury panel of twelve and one alternate
juror.
¶4 The District Court first dismissed three men and three women for cause, after which
the jury venire consisted of thirteen men and eleven women. The State exercised six
peremptory challenges by dismissing six men from the jury venire. Parrish’s counsel
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exercised his six peremptory challenges by removing three men and three women from the
jury venire. As a result, the final jury panel consisted of eight women and four men. The
parties chose a man as the alternate juror after the State used its peremptory challenge to
dismiss one of two men and Parrish’s counsel used his peremptory challenge to excuse the
lone woman.
¶5 Parrish’s counsel approached the bench after the parties had completed voir dire and
after the court had seated the final jury panel of twelve. Parrish’s counsel apparently
interposed an off-the-record objection concerning the State’s use of all six peremptory
challenges to exclude only men. Parrish’s counsel made no formal motion and evidently did
not attempt to place any objection on the record at that time. The District Court then
impaneled the final twelve jurors, gave them preliminary instructions, and dismissed them
for the lunch hour. The District Court also dismissed the remaining jury venire. The District
Court, while the jury was in recess, reported that Parrish’s counsel had indicated at the
earlier sidebar that he had a motion to make, but that it was “agreed that we would go ahead
and finish the selection process, excuse the panel for the noon hour, and that the motion
could then be presented.”
¶6 Parrish’s counsel responded that he would get his “motion on the record, and then,
depending on the verdict,” he would brief and submit a motion for a new trial. Parrish’s
counsel then made his formal objection, pursuant to Batson v. Kentucky (1986), 476 U.S. 79,
106 S.Ct. 1712, 90 L.Ed.2d 69. The District Court asked the State to respond. The State
justified each of its strikes and replied that it would respond in more detail if Parrish’s
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counsel filed a motion. The trial continued.
¶7 At the end of the first day of the trial, the State asked the District Court whether it
intended to make a formal ruling on Parrish’s counsel’s Batson objection. The District Court
remarked that Parrish’s counsel expressed his intent that the Batson objection be preserved
for a possible motion for a new trial after a potential conviction and the State already had
explained each of its peremptory challenges, therefore, the parties need not “do anything
about it.”
¶8 The jury found Parrish guilty on all counts. Parrish filed a motion for a new trial,
contending in part, that the State’s use of all of its peremptory challenges to exclude men
from the jury panel violated Batson and its progeny. The District Court held a hearing where
no witnesses testified and determined that the State had not engaged in purposeful gender
discrimination by using its six peremptory challenges to strike only men from the jury
venire. Parrish appeals.
STANDARD OF REVIEW
¶9 We review de novo a district court’s application of the law regarding the timeliness
of a Batson-type challenge. State v. Ford, 2001 MT 230, ¶ 7, 306 Mont. 517, ¶ 7, 39 P.3d
108, ¶ 7 (citations omitted).
DISCUSSION
¶10 Parrish, relying on Batson and its progeny, argues that the State violated his right to
equal protection under the United States and Montana Constitutions by exercising its
peremptory challenges in a discriminatory manner by excluding only men from the jury.
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Batson held that a prosecutor could not exercise peremptory challenges to exclude potential
jurors based solely upon race. Batson, 476 U.S. at 84, 106 S.Ct. at 1716, 90 L.Ed.2d at 79.
The United States Supreme Court extended Batson to prohibit gender discrimination during
jury selection. J.E.B. v. Alabama ex rel T.B. (1994), 511 U.S. 127, 114 S.Ct. 1419, 128
L.Ed.2d 89. We reviewed the history and progression of the Batson analysis concerning jury
composition in Ford, ¶¶ 8-20, where we adopted the Batson standard with respect to gender.
¶11 A trial court must follow a three-prong procedure when determining whether a Batson
violation has occurred. Counsel first must establish a prima facie case of purposeful
discrimination. The burden then shifts to the responding counsel to articulate a gender-
neutral explanation for exercising the peremptory challenge. The court finally must
determine, through findings of fact, whether counsel has established a prima facie case of
purposeful discrimination. Ford, ¶ 16.
¶12 First and foremost, however, we require that counsel must raise a Batson challenge
before the district court swears the jury and dismisses the venire. Ford, ¶ 28. In Ford, we
deemed a Batson challenge raised after the court had impaneled and sworn the jury and had
dismissed the venire to be untimely and therefore waived. See also Casiano v. Greenway
Enterprises Inc., 2002 MT 93, ¶ 27, 309 Mont. 358, ¶ 27, 47 P.3d 432, ¶ 27 (holding that
moving to discharge the jury based upon Batson after the jury had been selected, sworn, and
the venire excused is untimely).
¶13 An untimely Batson challenge results in a waiver for several reasons. Ford, ¶ 21
(citation omitted). First, it delays justice because once the court dismisses the venire, the
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jury selection process must start anew with no readily available venire from which to finish
the selection process. Ford, ¶ 25. Moreover, once the court dismisses the venire, the
challenged counsel’s duty to explain his or her peremptory challenges “becomes very
difficult once the persons to whom the peremptories were directed have disappeared from
sight[.]” Ford, ¶ 26 (citations omitted). Finally, a substantive Batson challenge raised after
the court has sworn the jury and dismissed the remaining venire deprives the court of its
opportunity to first correct any error and cure the alleged defect. Ford, ¶ 27 (citations
omitted).
¶14 We determine that a similarly untimely objection has occurred here, and therefore,
do not reach the merits of Parrish’s claim that the State’s use of peremptory challenges
violated Parrish’s equal protection rights. Parrish’s counsel apparently first attempted to
raise a Batson-type objection at an off-the-record sidebar that occurred after the parties had
completed voir dire and the court had seated the final jury panel of twelve. Parrish’s counsel
did not argue, much less establish, a prima facie case of purposeful discrimination at that
time, and therefore, failed to make an objection sufficient to constitute a Batson objection.
Ford, ¶ 16.
¶15 The record in this case admittedly proves problematic. The District Court confirmed
that Parrish’s counsel apparently had attempted to raise a Batson-type claim during the off-
the-record sidebar at which point the District Court and Parrish’s counsel appeared to reach
some agreement regarding the procedure to be followed. It remains the duty of the party
seeking to raise a Batson-type claim, however, to come forward in a timely manner and
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follow the clear dictates of our discussion in Ford. It falls beyond the province of the district
court or trial counsel to jettison these requirements in search of a more expedient process
precisely for the reasons discussed in ¶ 13 above.
¶16 Parrish’s counsel’s second attempt to raise a Batson-type objection occurred after the
District Court had dismissed the remaining venire, which of course, falls too late. Ford, ¶
28; Casiano,¶ 28. The District Court, in fact, offered Parrish’s counsel an opportunity at that
time to present his Batson motion. Parrish’s counsel instead chose merely to preserve his
objection for the record and wait until the jury had rendered its verdict before presenting a
formal Batson claim.
¶17 Parrish’s counsel’s third opportunity to raise a Batson-type objection presented itself
at the end of the first day of trial when the State inquired whether the District Court intended
to make a formal ruling on Parrish’s Batson objection. Parrish’s counsel, instead of
providing a Batson argument and requesting a formal Batson hearing and ruling, acquiesced
to the trial continuing. Indeed, the Batson hearing actually did not occur until Parrish made
a motion for a new trial after the jury had convicted him. This scenario falls well short of
the timeliness that we demand pursuant to Ford, a case decided two years before Parrish’s
trial.
¶18 In Casiano, neither counsel for the parties nor the court had the benefit of our Ford
decision at the time of that trial. Nevertheless, we concluded that our decision in Ford
regarding the timeliness of the Batson objection controlled. Casiano, ¶ 28. Here Parrish had
notice of our Ford requirement of making a timely Batson objection for nearly two years
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before his trial began in September, 2003. We cannot justify any grounds that would allow
an untimely Batson-type objection in this matter.
¶19 We finally note that in Batson challenges “it is imperative that the trial court fully
develop a record for review – a record that includes all relevant facts and information relied
upon by the trial court to render its decision, as well as a full explanation of the court’s
rationale.” Ford, ¶ 18 (citation omitted). This factual record and explanation proves
necessary to our review of the merits of any Batson-type challenge. Although the District
Court in the instant case held a hearing on Parrish’s counsel’s Batson challenge, it did not
make findings of fact and its only rationale appears in the transcripts of the hearing where
it explained that it deemed the State’s explanations to be credible. This omission is not fatal
to our decision, however, because as stated in ¶ 14 above, we conclude that Parrish made an
untimely Batson objection and we therefore do not reach the merits of his Batson challenge.
¶20 The District Court’s denial of Parrish’s motion for a new trial will stand in light of
the fact that we will affirm a district court if it reaches the right result for the wrong reason.
State v. Veis, 1998 MT 162, ¶ 16, 289 Mont. 450, ¶ 16, 962 P.2d 1153, ¶ 16. We conclude
that the District Court did not err when it denied Parrish’s motion for a new trial based upon
the State’s exercise of peremptory challenges during jury selection because Parrish failed to
raise a timely Batson-type objection.
¶21 Remanded for the limited purpose of reassessing witness costs and affirmed on the
denial of Parrish’s motion for a new trial.
/S/ BRIAN MORRIS
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We Concur:
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ JIM RICE
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