State v. White

April 22 2008

DA 06-0458

IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 129

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JOEL MILES WHITE,
a/k/a JOEL MILES SEMINOLE,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC-05-601
Honorable Russell C. Fagg, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker,
Assistant Appellate Defender, Helena, Montana

For Appellee:

Honorable Mike McGrath, Attorney General; Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana

Dennis Paxinos, County Attorney, Billings, Montana

Submitted on Briefs: February 27, 2008

Decided: April 22, 2008

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Appellant Joel M. White (White) appeals from the order of the Thirteenth Judicial

District Court, Yellowstone County, denying his motion for a mistrial. We affirm.

¶2 We consider the following issue on appeal:

¶3 Did the District Court err by denying White’s motion for a mistrial on the basis of

a juror’s comment, made during deliberations, that a friend had called him about the

case?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On June 25, 2005, White went to see his sister, Diane Temple, at her home in

Billings. Diane’s husband, Gary Temple, and White did not get along and upon Gary’s

return to the home, Gary told Diane that he did not want White in his house. Diane and

White then left together and went to a friend’s apartment, taking Diane and Gary’s Dodge

Durango. Later that evening, Gary went looking for Diane and, finding the Dodge

parked on the street, activated the car alarm. Diane heard the alarm and went outside

where she and Gary began to argue. White watched the argument from the porch until he

and Gary began to argue, at which point White moved into the front yard. A physical

confrontation ensued. During the course of the fight, White pulled out a knife and

stabbed Gary seven times before finally stabbing Gary in the neck, severing Gary’s

jugular vein and cutting his carotid artery. Gary stumbled into the street and died. White

and Diane fled the scene. Onlookers dialed 9-1-1 and emergency personnel arrived but

Gary could not be helped. White and Diane were apprehended by police a few blocks

away and White was arrested.

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¶5 On June 30, 2005, the county attorney filed an information charging White with

deliberate homicide, a felony, in violation of § 45-5-102(a), MCA. The case proceeded

to jury trial on March 6, 2006. During the trial, eleven eyewitnesses testified about the

fight leading to Gary’s death. White testified in his own defense, admitting that he had

caused Gary’s death but asserting that his actions were justified in self-defense.

However, eyewitnesses testified that White initiated the fight and continued the attack

even after Gary retreated with both hands in the air. Witnesses testified that White told

Gary “you’re dead[, y]ou’re going to fucking die.” On the sixth day of trial, March 13,

2006, the presentation of evidence concluded and the jury was dismissed overnight, with

closing arguments and jury instructions scheduled for the next day, to be followed by jury

deliberations. Prior to dismissal the judge admonished the jury, saying:

Once again, please do not discuss the case, or form any opinions about the
case, and once again, there will be a newspaper article and some news
stories about this. Please do not watch the news stories, go onto the internet,
or read the newspaper articles.

¶6 The following day, after closing arguments and jury instructions were given, jury

deliberations commenced. Approximately two hours after deliberations had begun, one

of the jurors, Robert Lindbergh (Lindbergh), began to tell the jury how a friend of his had

called Lindbergh the night before and wanted to know if Lindbergh would vote to convict

White. Lindbergh told his friend that he could not discuss the case. However, the friend

continued and “gave [Lindbergh] his opinion” that he “read it in the paper . . . [that] the

Defendant was in prison and that he got out of prison and that he killed this man . . . .”

According to the jury foreman, Dion Campbell (Campbell), the jury’s immediate reaction

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to Lindbergh’s comment was that Campbell and several other jurors said “whoa, whoa,

whoa, we can’t hear this.” The jury then decided to report the incident to the judge and

contacted the bailiff.

¶7 Soon after, the court, with counsel and White present, questioned Foreman

Campbell and Lindbergh about the incident.1 Campbell explained to the court that,

although all the jurors had heard the comment, they all “agreed right at the front that

[they were] not going to consider” it. Campbell explained that deliberations proceeded

from there and the comment was not discussed further. Similarly, Lindbergh stated that

when he began to tell the jury about the phone call, the other jurors

cut me off right away. And that’s when . . . it dawned on me. . . [that] I
shouldn’t have said that, I should have kept my mouth shut. But after it
happened, you know, and then I apologized to them and then we got to
talking about it a little bit in there and they agreed that what I had said has
not affected them and what their thinking is.

Following this testimony, White moved for a mistrial on the ground that the jury had

been tainted against him. White argued that a “cautionary instruction or any other type of

admonition from the court” would not cure the problem, making a mistrial appropriate.

The District Court denied the motion, stating that White had not “been denied a fair and

impartial trial” because (1) the jury quickly brought the issue to the court’s attention, (2)

both Campbell and Lindbergh stated that the jury had not discussed the comment further

and the jury’s discussion prior to and after the comment remained on the same track, and

(3) the “overwhelming evidence is that in fact, Mr. White is guilty of deliberate homicide

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According to Campbell’s recitation of the comments, Lindbergh also reported that his
friend had said that White had obtained a knife.

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and that the defense of justifiable use of force was not proven even close to beyond a

reasonable doubt[.]” The court then called the jury into the courtroom and gave the

following cautionary instruction:

Members of the jury, one of the jury instructions that the Court gave was
that you could only consider evidence which was received in this
Courtroom and evidence which was able to be cross examined. Evidently
some evidence has come in from other sources, and I’m going to ask you to
completely and totally disregard that evidence. The Defendant has a right
to be tried on the charge only based upon the evidence which has been
presented in this Courtroom and subject to cross examination. With that
very strict admonition, I’m going to ask you to go back into the jury room
and continue your deliberations. Thank you.

The jury was then excused to continue deliberations. Deliberations continued for nearly

another four hours before the jury returned its verdict, finding White guilty of deliberate

homicide. The District Court sentenced White to life imprisonment at the Montana State

Prison with a concurrent ten-year term pursuant to § 46-18-221, MCA, for use of a

weapon. White appeals.

STANDARD OF REVIEW

¶8 When deciding whether to grant a motion for a mistrial, the district court must

determine whether the defendant was denied a fair and impartial trial. State v. Dubois,

2006 MT 89, ¶ 33, 332 Mont. 44, ¶ 33, 134 P.3d 82, ¶ 33. We review a district court’s

grant or denial of a motion for a mistrial to determine whether the court abused its

discretion. Dubois, ¶ 33; State v. Kennedy, 2004 MT 53, ¶ 14, 320 Mont. 161, ¶ 14, 85

P.3d 1279, ¶ 14. The decision of a district court regarding the impartiality of a jury will

not be set aside unless there is a clear abuse of discretion. Kennedy, ¶ 14.

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¶9 The State expresses some uncertainty about the correct standard of review, noting

White argues an apparent “alternative to the ‘fair and impartial trial’ abuse of discretion

legal standard” which “holds that a district court properly grants a motion for mistrial

when a reasonable possibility exists that inadmissible evidence may have contributed to

the conviction.” However, this standard is not an alternative appellate standard of

review, but rather one of the substantive legal factors by which a district court determines

whether a motion for mistrial is meritorious. “A district court properly grants a motion

for mistrial when a reasonable possibility exists that inadmissible evidence may have

contributed to the conviction.” Dubois, ¶ 33 (citing State v. Long, 2005 MT 130, ¶ 24,

327 Mont. 238, ¶ 24, 113 P.3d 290, ¶ 24) (emphasis added). Other like factors, such as

the prejudicial effect of the inadmissible evidence, are further discussed herein. After the

district court has applied these substantive factors, we review the district court’s

disposition of the motion on appeal for abuse of discretion.

DISCUSSION

¶10 Did the District Court err by denying White’s motion for a mistrial on the
basis of a juror’s comment, made during deliberations, that a friend had called him
about the case?

¶11 White argues that by this incident “the entire jury was exposed to prejudicial

information” and the “nondescript cautionary instruction was insufficient to cure the

prejudice,” thereby denying him a fair and impartial trial. White contends that

Lindbergh’s comment was so prejudicial that a reasonable possibility exists that the

outside information might have contributed to his conviction. The State responds that,

while the outside information was indeed inappropriately given by one of the jurors, in

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the context of the entire case the statement alone did not render White’s trial unfair or

contribute to his conviction.

¶12 In general, where a reasonable possibility exists that inadmissible evidence may

have contributed to the defendant’s conviction, a grant of mistrial is proper. Dubois,

¶ 33. When determining whether a prohibited statement contributed to the conviction, a

district court should consider the “‘strength of the evidence against the defendant together

with the prejudicial influence of the inadmissible evidence and whether a cautionary, jury

instruction could cure any prejudice . . . .’” Long, ¶ 24 (quoting State v. Brady, 2000 MT

282, ¶ 14, 302 Mont. 174, ¶ 14, 13 P.3d 941, ¶ 14). Denial of a mistrial is appropriate

where the defects “do not affect the substantial rights of the defendant and the record is

sufficient to establish the defendant’s guilt.” Long, ¶ 24 (quoting Brady, ¶ 14). With

regard to juror contact or misconduct, “the Constitution does not require a new trial each

time a juror is placed in a potentially compromising situation” because it is “virtually

impossible to shield jurors from every contact or influence that might theoretically affect

their vote.” State v. Hage, 258 Mont. 498, 503-04, 853 P.2d 1251, 1254 (1993) (citing

Rushen v. Spain, 464 U.S. 114, 118-19, 104 S. Ct. 453, 455-56 (1983)) (internal

quotations omitted). Accordingly, where there is juror misconduct, in order to receive a

new trial, the defendant bears the initial burden of demonstrating that the misconduct

actually injured or prejudiced the defendant. State v. McNatt, 257 Mont. 468, 472, 849

P.2d 1050, 1052-53 (1993).

¶13 Although White asserts that Lindbergh’s impermissible comment prejudiced the

jury and the District Court erred by not granting a mistrial, his claim of prejudice fades

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when the record is considered. Campbell promptly notified the baliff of the outside

communication which had entered the jury room and, in response, the court immediately

questioned Campbell and Lindbergh. Both Campbell and Lindbergh informed the court

that the other jurors promptly stopped Lindbergh from continuing and agreed not to

consider the information in their deliberations. The District Court then gave a cautionary

instruction to the jury. Thereafter, the jury continued their deliberations for another four

hours, during which time the jury sent out questions to the court about issues they were

considering, evidencing their serious consideration of the evidence, instructions, and

verdict. We do not presume that the jury ignored its duty to respect the instructions of the

court, Dubois, ¶ 60, and it appears from the record that the deliberations which followed

were entirely appropriate.

¶14 Further, the general rule is that a cautionary instruction cures any error committed

by the introduction of improper information. Dubois, ¶ 60. While White contends that

the court should have given a more specific cautionary instruction and questioned each

juror individually, we conclude that under these circumstances the District Court did not

abuse its discretion by refusing to do so. The two jurors questioned gave similar versions

of what had occurred in the jury room in response to Lindbergh’s comments and, as the

State points out, a more specific cautionary instruction and individual questioning may

have risked the possibility of prompting the opposite effect—drawing more attention to

the inappropriate comment. The District Court assessed the situation carefully, first

questioning Lindbergh and Campbell individually and then giving the entire jury a

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cautionary instruction, and by so doing acted reasonably under the circumstances to cure

any prejudice that may have arisen by way of the comments.

¶15 Finally, the District Court correctly considered the “strength of the evidence” in

the case in making its determination. Long, ¶ 24. The court noted that there was

“overwhelming evidence” that White was guilty of deliberate homicide. Eleven

eyewitnesses testified about the fight. Several witnesses indicated that White was the

initial aggressor of the fight and continued to attack Gary even as Gary attempted to

retreat. Testimony included statements made by White that he intended for Gary to die.

Moreover, White himself testified that he knew Gary was unarmed and that he was the

aggressor in the fight. In light of this evidence, we cannot conclude that the District

Court’s assessment of the impact of the comment upon the trial was incorrect.

¶16 For these reasons, and being mindful that the district court is “given a latitude of

discretion in its rulings on motions for mistrial” as it is in the “best position to observe

the jurors[,]” Dubois, ¶ 61, we conclude that the District Court did not clearly abuse its

discretion by denying White’s motion for a mistrial.

¶17 Affirmed.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER

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