State v. Cudd

375 Mont. 215

326 P.3d 417

STATE of Montana, Plaintiff and Appellee,

v.James Bradley CUDD, Sr., Defendant and Appellant.

No. DA 13–0141.

Supreme Court of Montana.

Submitted on Briefs April 30, 2014.

Decided June 3, 2014.

For Appellant: Wade Zolynski, Chief Appellate Defender; Greg Hood, Assistant Appellate Defender; Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant Attorney General; Helena, Montana, Georgette Hogan, Big Horn County Attorney; David Sibley, Deputy County Attorney; Hardin, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 James Bradley Cudd, Sr., (Cudd) appeals from his conviction in the Twenty–Second Judicial District Court, Big Horn County, for committing the offense of Sexual Intercourse without Consent in violation of § 45–5–503, MCA. We affirm and restate Cudd's sole issue on appeal as follows:

¶ 2 Did the District Court abuse its discretion by denying Cudd's challenge for cause of a juror whose daughter had been the victim of sexual violence?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 The State charged Cudd with Sexual Intercourse without Consent, alleging that Cudd engaged in a continual sexual relationship with his stepdaughter, D.F., from 2006 to 2010. At the time the offenses began, D.F. was twelve years old, under the age of statutory consent in Montana.

¶ 4 The case against Cudd proceeded to trial on May 21, 2012. Voir dire was conducted by initially asking general questions of the prospective jurors, followed by an opportunity for confidential voir dire of individual jurors. Several jurors, including juror M.R., asked to discuss matters privately in chambers. This colloquy followed between M.R., the District Court, prosecutor David Sibley, and defense counsel Robert Kelleher:

[THE COURT:] And, [M.R.], I probably won't do a lot of the questioning, I'll leave that to the attorneys, but if you could just tell me what the nature of your concern is.

[M.R.]: My daughter has been in numerous abusive relationships, and one of those was rape.

THE COURT: So you've had a daughter that's been the subject of some sexual violence; is that correct?

[M.R.]: Yes.

THE COURT: Mr. Sibley.

MR. SIBLEY: [M.R.], do you believe that it would make it impossible for you to judge the evidence fairly and hold the State to its burden that we still must prove each element of the crime beyond a reasonable doubt?

[M.R.]: I would do my best to be fair. That's all I can say.

MR. SIBLEY: That's all we're asking, is just that the purpose of this is to, as the judge said, give you the privacy to make those disclosures without being in the public forum. But that really is the relevant question: Could you judge the evidence fairly and give Mr. Cudd a fair trial in which he's entitled?

[M.R.]: Uh-huh.

MR. SIBLEY: Do you believe you could?

[M.R.]: Yeah.

THE COURT: Anything else, Mr. Sibley?

MR. SIBLEY: Nothing further from the State.

THE COURT: Mr. Kelleher.

MR. KELLEHER: [M.R.], what was the outcome, were any of those people prosecuted?

[M.R.]: One of them was, yes.

MR. KELLEHER: What was the outcome of that?

[M.R.]: He was found guilty.

MR. KELLEHER: Would anything that had to do with that trial—I mean, the question is whether you're tilting more to toward one side or the other. That's the issue. And because of that experience whether you would be more in favor of the prosecution as opposed to the defendant.

[M.R.]: Well, in that case, of course, I would be more secured to my daughter.

MR. KELLEHER: I'm sorry. Based on your experience in the case with your daughter, whether in this case today you'd be more tuned into the prosecution or leaning more toward the prosecution just from the outset?

[M.R.]: To be honest, I'd probably be going towards the victim. You know, looking at their point of view.

MR. KELLEHER: So you'd be more likely to believe the testimony of the alleged victim in this case than you would a defense witness?

[M.R.]: I hate to say that, but yes, I probably would.

MR. KELLEHER: I think we need to excuse her for cause, Your Honor.

MR. SIBLEY: Your Honor, may I have the chance to rehabilitate?

THE COURT: You may.

MR. SIBLEY: What were the charges that were filed?

[M.R.]: The one that was found guilty was domestic abuse.

MR. SIBLEY: So that wasn't a rape case?

[M.R.]: No, that was not a rape case.

MR. SIBLEY: As you said, you could judge the credibility of the witnesses and if you would not believe the witness—you would be more inclined if you didn't believe them—you would still hold the State to the burden.

[M.R.]: Yes.

MR. SIBLEY: I believe she's capable to serve as a juror. I believe she has stated that she can hold the State to its burden of proof and burden and be fair and impartial.

MR. KELLEHER: I'll continue.

THE COURT: All right.

MR. KELLEHER: I request that she removed for cause.

THE COURT: The challenge for cause is denied. [M.R.], I appreciate you coming in.

¶ 5 The defense subsequently used all of its preemptory challenges, including one to excuse M.R. Cudd was convicted following trial and sentenced to the Montana State Prison. He appeals.

STANDARD OF REVIEW

¶ 6 “We review a district court's denial of a challenge for cause using an abuse of discretion standard.” State v. Johnson, 2014 MT 11, ¶ 8, 373 Mont. 330, 317 P.3d 164 (citation omitted). A district court abuses its discretion if it denies a challenge for cause when a prospective juror's statements during voir dire raise serious doubts about the juror's ability to be fair and impartial or actual bias is discovered. Johnson, ¶ 8 (citations omitted). If a district court abuses its discretion by denying a legitimate challenge for cause, the error is structural and automatic reversal is required. State v. Good, 2002 MT 59, ¶¶ 62–63, 309 Mont. 113, 43 P.3d 948.

DISCUSSION

¶ 7 Did the District Court abuse its discretion by denying Cudd's challenge for cause of a juror whose daughter had been the victim of sexual violence?

¶ 8 A criminal defendant has a fundamental right to be tried by an impartial jury. State v. Allen, 2010 MT 214, ¶ 25, 357 Mont. 495, 241 P.3d 1045 (citation omitted). To safeguard this right, “[e]ach party may challenge jurors for cause, and each challenge must be tried by the court.” Section 46–16–115(1), MCA. A challenge for cause may be taken when a juror demonstrates “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.¹ A court must decide a challenge for cause under § 46–16–115(2)(j), MCA, based on the totality of the circumstances presented. State v. Golie, 2006 MT 91, ¶ 8, 332 Mont. 69, 134 P.3d 95. As a general principle, “[a] prospective juror's ‘spontaneous statements' are given more weight than ‘coaxed recantations' elicited by counsel because spontaneous statements are ‘most likelyto be reliable and honest.’ ” State v. Jay, 2013 MT 79, ¶ 19, 369 Mont. 332, 298 P.3d 396 (citations omitted).

¶ 9 Jurors who state that they are unable or unwilling to suspend their prejudicial beliefs and follow the law should be excused for cause. Jay, ¶ 20 (citation omitted). However, “a juror should not be removed merely because she voices a concern about being impartial—every person comes to jury duty with preconceptions.” Jay, ¶ 20; accord State v. Normandy, 2008 MT 437, ¶ 22, 347 Mont. 505, 198 P.3d 834 (“[I]f the prospective juror merely expresses concern about impartiality but believes he can fairly weigh the evidence, the court is not required to remove the juror.”). We have recognized that “[i]n reality, few people are entirely impartial regarding criminal matters....” Allen, ¶ 26 (citation omitted). Therefore, the critical inquiry is whether a prospective juror can convincingly affirm his or her ability to lay aside any misgivings and fairly weigh the evidence. SeeAllen, ¶ 26 (citation omitted). Because district court judges sit in the best position to observe the disposition of prospective jurors, we grant lower courts a certain degree of deference in making this determination. Johnson, ¶ 20 (citations omitted); Allen, ¶ 26 (citations omitted).

¶ 10 Cudd argues that M.R.'s “state of mind prevented her from acting with entire impartiality.” He maintains that M.R. acknowledged her bias several times: (1) when she stated, “Well, in that case, of course, I would be more secured to my daughter”; (2) when she further stated, “To be honest, I'd probably be going towards the victim. You know, looking at their point of view”; and (3) when asked by defense counsel, “So you'd be more likely to believe the testimony of the alleged victim in this case than you would a defense witness,” she replied, “I hate to say that, but yes, I probably would.” Cudd argues that these statements “raised serious questions about [M.R.'s] ability to be impartial” and “deprived him of the fundamental right to be tried by an impartial jury” when the District Court denied his challenge for cause. He characterizes M.R.'s initial assurances that she could judge the evidence fairly and hold the State to its burden of proof as “ attempts to show respect for the judicial process and avoid confrontation with those officers of the court that were peppering her with questions,” and not as evidence of impartiality.

¶ 11 The State contends that “M.R.'s comments did not establish that she harbored actual bias or that her state of mind prevented her from acting impartially.” It argues that, although M.R. honestly advised the court of her past experiences and perspectives, she at no time indicated she was unwilling to fairly and objectively evaluate the case. The State points to the fact that when directly asked, M.R. clearly affirmed her ability to remain impartial despite her daughter's experiences. In support of its position, the State analogizes to several cases, including our recent holding in Johnson.

¶ 12 In Johns...