State v. Lamere

No. 04-110

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 118

STATE OF MONTANA,

Plaintiff and Respondent,

v.

ROBERT LOUIS LAMERE, JR.,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. ADC 2002-203
The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kristina Guest, Assistant Appellate Defender, Helena, Montana

For Respondent:

Honorable Mike McGrath, Montana Attorney General, Tammy K Plubell,
Assistant Attorney General, Helena, Montana; Brant S. Light, Cascade
County Attorney, Marvin Anderson, Deputy County Attorney, Great Falls,
Montana

Submitted on Briefs: March 17, 2005

Decided: May 10, 2005

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Following a jury trial in the District Court of the Eighth Judicial District, Cascade

County, Robert Louis Lamere, Jr. (Lamere) was convicted of aggravated assault and assault

with a weapon. Lamere appeals. We reverse the conviction and remand this case to the

District Court for a new trial. The sole issue on appeal is whether Lamere received effective

assistance of counsel during voir dire of prospective jurors.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On May 23, 2002, the State filed an information charging Lamere with one count of

aggravated assault and one count of assault with a weapon. These charges arose out of an

altercation which occurred on May 5, 2002, at the Club Cigar in Great Falls, Montana. A

one day trial was conducted in the District Court on August 11, 2003, and the jury found

Lamere guilty on both counts. On January 12, 2004, the District Court rendered its sentence,

after which Lamere appealed to this Court.

¶3 Lamere’s claim of ineffective assistance arises out of his attorney’s handling of the

voir dire process. One of the individuals who served as a juror in Lamere’s trial, Janet

Whirry (Whirry), is the mother of Sarah Hollis (Hollis), a paralegal employed at the Cascade

County Attorney’s Office. Hollis sat at counsel table during voir dire, assisting the

prosecuting attorney. Prior to the trial, Whirry had completed a juror questionnaire form

which contained the question “Are you or any member of your immediate family involved

in law enforcement in any official capacity?” Whirry answered “Yes” and explained

“Daughter Sarah Hollis is a paralegal at County Attorney’s Office - Great Falls Police

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Department retired.” Lamere’s court appointed counsel did not take notice of these answers.

Thus, defense counsel did not question Whirry regarding any potential bias or prejudice that

may have resulted from her relationship with Hollis or her connection to the Great Falls

Police Department.

¶4 At the outset of defense counsel’s voir dire, he likened the trial to a race between the

State and Lamere, with the verdict representing the finish line. Pursuant to this analogy,

counsel then asked prospective jurors who was ahead in the race. This inquiry was coupled

with questions regarding the presumption of innocence in a criminal trial. Defense counsel’s

only questions to Whirry during voir dire focused on her understanding of this concept. In

response, Whirry said that Lamere was ahead in the race because he was innocent until

proven guilty. Whirry also said that the State could only pass Lamere in the race by

presenting evidence convincing the jury of his guilt.

¶5 The only other questions posed to Whirry came from the State’s attorney, who asked

Whirry about her previous service as a juror. In response to these questions Whirry stated

that she had served in a “murder” case where the jury reached a guilty verdict. Thus, Whirry

did not disclose her relationship with Hollis or her connection to the Great Falls Police

Department at any point in the voir dire proceedings. Ultimately, Whirry served on Lamere’s

jury, as neither the State nor Lamere’s counsel raised a challenge for cause or exercised a

peremptory challenge to remove her.

¶6 During the lunch recess, defense counsel was informed of Whirry’s relation to Hollis,

after which he moved to replace Whirry with the alternate juror. In doing so, defense

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counsel acknowledged his failure to take notice of the information in Whirry’s juror

questionnaire, stating:

[I]t’s my responsibility for not picking that up. I have no reason from the
questioning, obviously, to believe that Ms. Whirry can’t be straightforward
and balanced, however, I think the conflict is, in my view, extremely serious
and extremely obvious. I take full responsibility for it, and the defendant
certainly now is on notice that his attorney made a mistake . . . .

The State opposed the motion, arguing that Whirry had indicated she would be fair to both

sides. The District Court denied the motion, observing that the State had not committed any

wrongdoing, and stating that Whirry had given no indication of being biased or prejudiced.

DISCUSSION

¶7 The right to effective assistance of counsel is guaranteed by the Sixth Amendment to

the United States Constitution, and by Article II, Section 24 of the Montana Constitution.

State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, ¶ 11, 97 P.3d 1095, ¶ 11. As we have

previously stated, “[t]he effective assistance of counsel is critical to our adversarial system

of justice; a lack of effective counsel may impinge the fundamental fairness of the

proceeding being challenged.” State v. Henderson, 2004 MT 173, ¶ 4, 322 Mont. 69, ¶ 4,

93 P.3d 1231, ¶ 4. Hence, a convicted defendant is entitled to a new trial upon establishing

that defense counsel rendered ineffective assistance. See State v. Jefferson, 2003 MT 90, ¶

57, 315 Mont. 146, ¶ 57, 69 P.3d 641, ¶ 57.

¶8 We review claims of ineffective assistance of counsel under the two-prong test

enunciated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674. Henderson, ¶ 4. Under the Strickland test, a convicted defendant bears the burden of

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demonstrating both that defense counsel’s performance was deficient, and that this deficient

performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This

test is consistent with § 46-20-701(1), MCA, which provides that “[a] cause may not be

reversed by reason of any error committed by the trial court against the convicted person

unless the record shows that the error was prejudicial.”

¶9 Claims of ineffective assistance of counsel constitute mixed questions of law and fact

which we review de novo. Kougl, ¶ 12. In analyzing such claims, we must first consider

whether the trial record is sufficient to determine whether counsel was ineffective. State v.

Daniels, 2003 MT 247, ¶ 41, 317 Mont. 331, ¶ 41, 77 P.3d 224, ¶ 41. A trial record is

sufficient for our review on direct appeal when it contains two essential components. First,

the record must adequately document the challenged act or omission of defense counsel.

State v. Harris, 2001 MT 231, ¶ 21, 306 Mont. 525, ¶ 21, 36 P.3d 372, ¶ 21. Second, the

record must afford sufficient understanding of the reasons for counsel’s act or omission, in

order to answer the question of whether the alleged error expresses a trial strategy or tactical

decision. Harris, ¶ 21. If the record does not supply the reason for counsel’s act or

omission, the claim must be raised in a petition for post-conviction relief, where a record can

be developed to establish why the challenged act or omission occurred. Harris, ¶ 21. For

example, in State v. Herrman, 2003 MT 149, 316 Mont. 198, 70 P.3d 738, we did not

address a claim of ineffective assistance of counsel because the trial record did not disclose

the reason for counsel’s challenged omissions. Herrman, ¶ 34. As does Lamere in the

instant appeal, the defendant in Herrman alleged that his counsel rendered ineffective

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assistance during voir dire by failing to develop information in the record demonstrating an

individual juror’s bias and by failing to exercise challenges for cause against those jurors

expressing bias. Herrman, ¶ 20. In refusing to address that claim, we stated that such

contentions would be more appropriately raised in a petition for post-conviction relief,

Herrman, ¶ 34, noting that it would be improper for us to assume any reasons for counsel’s

actions or inactions, Herrman, ¶ 30.

¶10 In the case sub judice, the trial transcript contains a record of defense counsel’s

performance during voir dire which adequately documents the challenged omissions: (1) the

failure to question Whirry regarding any potential bias or prejudice that may have resulted

from her relationship with Hollis or her connection to the Great Falls Police Department; and

(2) the failure to raise a challenge for cause or exercise a peremptory challenge to remove

Whirry from the jury. Further, defense counsel’s statements to the District Court, as

recorded in the transcript, provide a clear explanation as to why these failures occurred. As

such, the trial record is sufficient for our review of this claim. We now turn to our de novo

review of Lamere’s claim, applying the Strickland test.

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 Deficient Performance

¶11 Pursuant to the first prong of the Strickland test, a defendant must establish that

counsel’s performance was so deficient that counsel was not functioning as the “counsel”

guaranteed under both the United States Constitution and the Montana Constitution.

Henderson,¶ 5. This requires a defendant to show that counsel’s representation fell below

an objective standard of reasonableness. State v. Lucero, 2004 MT 248, ¶ 15, 323 Mont. 42,

¶ 15, 97 P.3d 1106, ¶ 15.

¶12 There are countless ways to provide effective assistance in any given case, Strickland,

466 U.S. at 689, 104 S.Ct. at 2065, and we indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance, Henderson, ¶ 5.

A convicted defendant claiming ineffective assistance of counsel must overcome the

presumption that, under the circumstances, the challenged action could be considered sound

trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The deference we accord an

attorney’s conduct on review is such that we rarely grant relief if there is some evidence that

the decision was strategic. Henderson, ¶ 5. However, “[i]n reviewing acts of attorney

neglect or ignorance, we accord no deference.” Henderson, ¶ 8.

¶13 Lamere argues that his trial counsel rendered deficient performance during voir dire

by failing to adequately question Whirry or raise a challenge to exclude her from the jury.

Given Whirry’s disclosures in her juror questionnaire form, Lamere argues, defense counsel

had a duty to seek information regarding any bias or prejudice Whirry may have harbored,

in order to ensure an impartial jury. Lamere concludes that his counsel’s failure to pursue

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this information prohibited him from making informed decisions regarding a challenge for

cause or a peremptory challenge.

¶14 The State contends Lamere has not demonstrated that his counsel’s performance was

deficient because the claim is based on speculation. Specifically, the State asserts that

Lamere’s claim is based on the speculation that if defense counsel had taken complete notice

of Whirry’s juror questionnaire and questioned her accordingly, then he would have

developed grounds to challenge Whirry for cause, and counsel would have in fact challenged

Whirry for cause, and there would have been sufficient information in the record for the

District Court to grant the challenge. Upon this characterization of Lamere’s claim, the State

argues that all such speculation is unwarranted. Further, the State argues that if defense

counsel had challenged Whirry for cause based solely upon the existence of her relation to

Hollis, the challenge would have been insufficient and properly denied. Finally, the State

argues that nothing in the record demonstrates bias on the part of Whirry, nor does the record

contain any other information to support a challenge to remove her for cause.

¶15 The right to effective assistance of counsel “exists, and is needed, in order to protect

the fundamental right to a fair trial.” Strickland, 466 U.S. at 684, 104 S.Ct. at 2063. A fair

trial is one in which evidence subject to adversarial testing is presented to an impartial

tribunal. Strickland, 466 U.S. at 685, 104 S.Ct. at 2063. Defense counsel has the duty to

ensure a defendant’s right to a fair trial by a panel of impartial jurors. State v. Chastain

(1997), 285 Mont. 61, 65, 947 P.2d 57, 60 (overruled in part on other grounds by Herrman,

¶ 33). As the right to trial by an impartial jury is principally secured through the system of

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challenges exercised during voir dire, it is incumbent on defense counsel to develop

information in the record that demonstrates a juror’s bias as to a party or an issue in the case.

Chastain, 285 Mont. at 65, 947 P.2d at 60. The purpose of voir dire in a criminal proceeding

is to determine the existence of a prospective juror’s partiality. Herrman, ¶ 23. Adequate

questioning in voir dire enables counsel to properly raise a challenge for cause pursuant to

§ 46-16-115(2)(j), MCA, which provides for such challenges where a 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.” Adequate questioning in voir dire also enables counsel to intelligently exercise

peremptory challenges, Herrman, ¶ 23, which are essentially a matter of trial strategy,

Herrman, ¶ 31.

¶16 Here, Whirry’s juror questionnaire disclosed that she or a member of her immediate

family was retired from the Great Falls Police Department, and that her daughter was

employed as a paralegal at the County Attorney’s Office. This relationship obviously raised

legitimate questions as to Whirry’s ability to serve as an impartial juror. As such, counsel

was obligated to do more than merely question Whirry regarding her understanding of the

presumption of innocence. At a minimum, counsel should have pursued information

regarding these answers to determine the presence or absence of bias. Such investigation

was necessary to ensure that Lamere’s jury was impartial. Had counsel properly questioned

Whirry, he may have developed information justifying a challenge for cause. Alternatively,

proper questioning may have prompted counsel to remove Whirry from the panel by the use

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of a peremptory challenge. In any event, proper questioning would have allowed counsel to

make informed decisions regarding the use of challenges in determining the makeup of the

jury.

¶17 Specifically, counsel should have questioned whether Whirry could remain impartial

given her relationship with Hollis. While it is certainly possible that this relationship would

not have affected Whirry’s ability to remain impartial, we have recognized as a “fundamental

fact of human character” that people are “prone to favor that side of a cause with which they

identify themselves either economically, socially, or emotionally.” Chastain, 285 Mont. at

64, 947 P.2d at 59-60. Additionally, counsel should have inquired regarding the specifics

of Whirry’s familial connection to the Great Falls Police Department, and questioned

whether that would affect her ability to remain impartial. As we have previously stated, the

mere fact that a prospective juror is connected with law enforcement does not, without more,

necessitate a finding that he or she would not be an impartial juror. State v. Deschon, 2004

MT 32, ¶ 41, 320 Mont. 1, ¶ 41, 85 P.3d 756, ¶ 41. However, we recognize the importance

of questioning potential jurors who have a background in law enforcement. In State v. Radi

(1978), 176 Mont. 451, 578 P.2d 1169, this Court stated:

[W]e are mindful of the natural inclinations of one whose life is committed to
law enforcement. For this reason the widest possible examination should be
allowed such person in his examination as a potential juror, and should there
be any doubt in the event of a challenge for cause, the trial court should
resolve the doubt in favor of allowing the challenge.

Radi, 176 Mont. at 460, 578 P.2d at 1175.

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¶18 Defense counsel’s failure to properly question Whirry was not a tactical decision.

Rather, it was the consequence of a simple oversight, as demonstrated by counsel’s

admission to the District Court. As a result of this oversight, counsel passed the jury for

cause and exercised his peremptory challenges without considering or investigating readily

available and highly relevant information regarding Whirry’s ability to serve as an impartial

juror. Thus, the very purpose of the voir dire proceeding was defeated, because counsel’s

oversight precluded him from making properly informed choices in challenging prospective

jurors.

¶19 The State asserts that Lamere’s claim is based on speculation that Whirry would have

been removed from the jury based on proper questioning by defense counsel. However,

Lamere’s claim is not based on any such speculation. Rather, it is based simply on counsel’s

failure to ensure that the jury was impartial by developing information during voir dire based

on pertinent disclosures in Whirry’s juror questionnaire. In resolving this claim, we need not

assume that proper questioning by counsel would have resulted in Whirry’s removal from

the jury. Instead, we must determine whether counsel conducted proper questioning in light

of the available information. Thus, the State has mischaracterized Lamere’s claim. Because

the State’s arguments are based upon this mischaracterization, they simply do not address

the issue in this case--whether defense counsel rendered deficient performance by failing to

question Whirry regarding the pertinent information in her juror questionnaire.

¶20 Additionally, the State suggests that we can resolve Lamere’s claim based on the

information in the record regarding Whirry’s impartiality, arguing that there is no evidence

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of bias on her part. This argument fails, as it is precisely the lack of information in the

record regarding bias which precludes an informed decision as to whether Whirry should

have been challenged for cause. Consequently, this lack of information regarding bias also

establishes that counsel’s performance was deficient.

¶21 In summary, defense counsel had a duty to ensure that Lamere received a fair trial by

a panel of impartial jurors. Pursuant to this duty, counsel was obligated to read the juror

questionnaire forms and take notice of Whirry’s answers which merited further inquiry.

Further, counsel was obligated to develop information in the record regarding the presence

or absence of any pertinent bias Whirry may have harbored, and raise challenges

accordingly. Counsel’s inexcusable failure to take notice of the pertinent information in

Whirry’s questionnaire resulted in inadequate questioning during voir dire, which in turn led

counsel to make uninformed decisions regarding challenges. Thus, counsel failed to fulfill

his duty to ensure that the jury was impartial. We hold that counsel’s performance was

deficient because it fell below the level reasonably required of counsel in these

circumstances. As such, Lamere has satisfied the first prong of the Strickland test.

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 Prejudice

¶22 Under the second prong of the Strickland test, a defendant must show that he was

prejudiced by counsel’s deficient performance. Henderson, ¶ 9. In order to establish

prejudice, a defendant must show that counsel’s errors were so serious as to deprive the

defendant of a fair trial; a trial producing a reliable result. Strickland, 466 U.S. at 687, 104

S.Ct. at 2064. As Strickland noted:

An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no
effect on the judgment. [Citation omitted.] The purpose of the Sixth
Amendment guarantee of counsel is to ensure that a defendant has the
assistance necessary to justify reliance on the outcome of the proceeding.
Accordingly, any deficiencies in counsel’s performance must be prejudicial to
the defense in order to constitute ineffective assistance under the Constitution.

Strickland, 466 U.S. at 691-92, 104 S.Ct. at 2066-67.

¶23 Lamere argues that his counsel failed to ensure that the jury was impartial because

Whirry was potentially biased, she was not adequately questioned, and she ultimately served

on the jury. Lamere asserts that this error in the jury selection process amounts to a

structural error, and thus, prejudice must be presumed. In response, the State argues that

even if counsel’s performance was deficient, Lamere has failed to prove that prejudice

resulted because there is no evidence of bias in the record. Additionally, the State argues

that a presumption of prejudice is not supported by any evidence in the record. Further, the

State argues that this Court should not presume prejudice because such a presumption would

be based on speculation as to the information Whirry would have disclosed upon further

questioning, and speculation as to how counsel would have reacted to that information.

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Finally, the State argues that this Court should not presume prejudice because the evidence

against Lamere was overwhelming.

¶24 The purpose of voir dire in a criminal proceeding is to determine the existence of

prospective jurors’ partiality, so that counsel may intelligently raise challenges for cause and

peremptory challenges. Herrman, ¶ 23. The use of challenges in voir dire is the principal

method of securing a defendant’s fundamental right to trial by an impartial jury. Chastain,

285 Mont. at 65, 947 P.2d at 60. “It is incontrovertible that jury impartiality goes to the very

integrity of our justice system, and that the right to an impartial jury is so essential to our

conception of a fair trial that its violation cannot be considered harmless error.”

Herrman, ¶ 22. Thus, errors in the voir dire process implicate a defendant’s constitutional

right to be tried by an impartial jury, thereby calling in to question the fundamental fairness

of the entire proceeding. As we have stated, jury selection is critically important in assuring

a defendant’s fundamental right to an impartial jury and a fair trial. State v. Good, 2002 MT

59, ¶ 60, 309 Mont. 113, ¶ 60, 43 P.3d 948, ¶ 60. Errors involving jury selection indelibly

affect the fairness of the trial, since such errors precede the trial. Good, ¶ 60. Thus, we have

held that errors in the jury selection process are structural errors. State v. LaMere, 2000 MT

45, ¶ 26, 298 Mont. 358, ¶ 26, 2 P.3d 204, ¶ 26.

¶25 Structural errors are defects in the framework within which a trial proceeds and, as

such, undermine the fairness of the entire trial proceeding. State v. Van Kirk, 2001 MT 184,

¶ 38, 306 Mont. 215, ¶ 38, 32 P.3d 735, ¶ 38. Such defects, which precede the presentation

of evidence, cannot be qualitatively or quantitatively weighed against the admissible

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evidence introduced at trial, and thus are presumptively prejudicial. Van Kirk, ¶ 38. When

structural error is present, the “criminal trial cannot reliably serve its function as a vehicle

for determination of guilt or innocence . . . .” Arizona v. Fulminante (1991), 499 U.S. 279,

310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302. This Court has identified structural error in

the context of jury selection on several occasions. For example, structural error exists upon

a material failure to substantially comply with statutes governing the procurement of a trial

jury, LaMere,¶ 50, where a defendant is excluded from in-chambers individual voir dire

proceedings, State v. Bird, 2002 MT 2, ¶ 40, 308 Mont. 75, ¶ 40, 43 P.3d, 266, ¶ 40, and

where a district court abuses its discretion by denying a challenge for cause to a prospective

juror, after which the defendant uses a peremptory challenge to remove the disputed juror

and exhausts all other peremptory challenges, Good, ¶ 62.

¶26 Trial error, on the other hand, is that type of error which typically occurs during the

presentation of a case to the jury. Good, ¶ 61. Such error is amenable to qualitative and

quantitative assessment by a reviewing court for prejudicial impact relative to the other

evidence introduced at trial. Good, ¶ 62. As such, trial error is not presumptively

prejudicial. Good, ¶ 61.

¶27 The United States Supreme Court has stated that in certain Sixth Amendment

contexts, prejudice is presumed. Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. Actual or

constructive denial of the assistance of counsel is presumed to result in prejudice, as are

various kinds of state interference with counsel’s assistance. Strickland, 466 U.S. at 692,

104 S.Ct. at 2067.

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¶28 In the case sub judice, prejudice is adequately established because a structural error

existed, and such errors are presumptively prejudicial. Good, ¶ 59. As explained above,

defense counsel’s performance was deficient because he failed to take the steps necessary

to secure an impartial jury. Counsel’s failure in this regard constitutes an error in the jury

selection process which undermined the integrity of the entire trial. As we said in LaMere,

“errors in the jury selection process are ‘structural’ in nature and, therefore, affect the very

framework within which a trial proceeds. That is, they are errors which indelibly affect the

essential fairness of the trial itself.” LaMere, ¶ 26. Thus, we hold that counsel’s deficient

performance constituted a structural error, and prejudice is therefore presumed. As such,

Lamere has satisfied the second prong of the Strickland test.

¶29 The State argues that even if counsel’s performance was deficient, a presumption of

prejudice is not supported by any evidence in the record and would be based on speculation.

However, having determined that a structural error existed at the outset of Lamere’s trial, we

need not engage in speculation or refer to the evidence of record in order to support a

determination of prejudice. Rather, prejudice is presumed. Indeed, to adopt the State’s

argument would be to accept the speculation that counsel’s deficient performance did not

affect the impartiality of the jury. We are simply unable to make such an assessment because

of the uncertainties rendered by structural error, which is precisely why prejudice is

presumed in these circumstances. The State also argues that this Court should not presume

prejudice because the evidence against Lamere was overwhelming. Again, because we have

determined that a structural error existed at the outset of Lamere’s trial, we must presume

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prejudice regardless of the evidence against Lamere. The strength and magnitude of the

evidence against Lamere has no bearing on the determination of whether structural error

existed, nor does it invalidate the presumption of prejudice that accompanies structural error.

¶30 In summary, Lamere has satisfied both prongs of the Strickland test. Counsel’s failure

to ensure that the jury was impartial constitutes deficient performance. This failure produced

a structural error, and thus prejudice is presumed. As such, we hold that Lamere did not

receive effective assistance of counsel during voir dire.

¶31 Reversed and remanded.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS

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