State v. Sweet

393 Mont. 202

429 P.3d 912

2018 MT 263

STATE of Montana, Plaintiff and Appellee,

v.Robert Allan SWEET, Defendant and Appellant.

DA 17-0317

Supreme Court of Montana.

Submitted on Briefs: October 10, 2018

Decided: November 7, 2018

For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, J. Stuart Segrest, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Robert S. Spoja, Deputy County Attorney, Billings, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶ 1 Robert Allan Sweet appeals his conviction of operating a noncommercial vehicle with an alcohol concentration of 0.08 or more, or "DUI per se," in violation of § 61-8-406(1)(a), MCA (2015), following a jury trial in the Thirteenth Judicial District Court, Yellowstone County. He challenges the District Court’s giving of a jury instruction. We affirm and address the following issue:

Did the District Court abuse its discretion by giving a "Norquay instruction" to the jury?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Near midnight on May 28, 2016, Billings Police Officer Nathan Contreraz encountered a vehicle in a gravel area alongside Central Avenue in Billings with "somebody’s arm sticking out the window." The apparent driver was passed out, the keys were in the ignition, and the vehicle was running. Contreraz turned off the vehicle and wakened the driver, Defendant Sweet, who exhibited characteristics of excessive alcohol consumption and registered a .250 blood-alcohol level during later testing at the detention center. Sweet was charged with DUI per se, plead not guilty, and the case proceeded to a jury trial.

¶ 3 During the first day, the trial proceeded through the parties’ case presentations, including the testimony of witnesses. By that point, Sweet no longer contested that his alcohol concentration was above the legal limit or that he was in control of the vehicle; rather, his defense narrowed to whether the graveled area along Central Avenue where his vehicle was located was a "way[ ] of this state open to the public" under § 61-8-406(1)(a), MCA. On the morning of the second day of trial, closing arguments were made by counsel and the District Court gave 17 instructions to the jury, including those addressing the elements of the offense of DUI per se, the burden of proof, and a definition for "ways of the state open to the public." Sweet did not object to any of the 17 instructions given by the court. The jury began deliberations at about 10:00 a.m.

¶ 4 At 12:20 p.m., the District Court met with counsel and Sweet because the jury had submitted two questions. The first question concerned the elements of DUI per se and the burden of proof. The second question concerned the definition of ways of the state open to the public. After discussion among the court and parties, the District Court provided the following written response to the jury’s questions, to which neither party objected: "The Court cannot provide additional instructions. You may rely only on Instructions 1 through 17 previously given." The jury then continued their deliberations at about 12:28 p.m.

¶ 5 At 1:02 p.m., the District Court again met with counsel and Sweet because the jury had submitted a note, stating: "We, the jury, cannot reach a unanimous decision as to a verdict." The court asked the parties whether Mont. Pattern Jury Instr. Crim. 1.121 (2009) should be offered, stating that such instructions have "been approved by the Montana Supreme Court in situations like this where a jury informs of a potential deadlock." The State argued the instruction should be given, with the caveat it should be modified as provided by this Court in State v. Norquay , 2011 MT 34, ¶ 43, 359 Mont. 257, 248 P.3d 817 ( Norquay instruction). The defense objected, asking the jury be given more time because it had been deliberating for just two and a half hours and had previously asked questions about some of the instructions. The District Court determined to give the Norquay instruction, reasoning the jury had "affirmatively stated they cannot reach a decision," the Norquay instruction would advise the jury to "consider not only the Norquay instruction but consider all of the instructions again and asks them simply to resume deliberations," and, as such, the instruction would not be prejudicial.

¶ 6 The District Court gave the Norquay instruction to the jury.¹ The jury then resumed its deliberations, and deliberated for approximately an hour before returning a unanimous guilty verdict finding Sweet guilty of DUI per se. Sweet was sentenced for felony DUI as a consequence of his five prior DUI convictions.

¶ 7 Sweet appeals.

STANDARD OF REVIEW

¶ 8 "We review jury instructions in a criminal case to determine whether the instructions, as a whole, fully and fairly instruct the jury on the applicable law. A district court has broad discretion when instructing a jury and we only reverse if the instructions prejudicially affect the defendant’s substantial rights." State v. Santiago , 2018 MT 13, ¶ 7, 390 Mont. 154, 415 P.3d 972 (citations omitted).

DISCUSSION

¶ 9 Did the District Court abuse its discretion by giving a "Norquay instruction" to the jury?

¶ 10 Defendants have a constitutional right to an uncoerced jury verdict. Santiago , ¶ 9. "A jury instruction is coercive if it directs the minority of jurors to reconsider their views in light of the majority, instructs the jurors that they have to reach a decision, or pressures the jurors into returning a unanimous verdict." Santiago , ¶ 9 (citations omitted). The jury "is not responsible for rendering a unanimous verdict regardless of the circumstances"; rather, "[t]he jury is ultimately responsible for carefully considering all of the facts presented at trial." Santiago , ¶ 9 (citations omitted). While the court "cannot place undue pressure upon the jury to reach a verdict," it can "provide an Allen -instruction to a deadlocked jury." Santiago , ¶ 10 (quotations and citations omitted); see , e.g. , Allen v. United States , 164 U.S. 492, 501-02, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896). Such an instruction reminds the jury of its obligation to "consider the facts of the case, deliberate with one another, and attempt to reach a unanimous verdict." Santiago , ¶ 10. A proper " Allen instruction" safeguards "a defendant’s right to an uncoerced jury verdict while ensuring a jury is properly encouraged to deliberate" in order to deliver a final verdict. Santiago , ¶ 10. We have upheld Allen instructions as non-coercive as long as they do not instruct the minority to reconsider its views in light of the majority, pressure the jury into rendering a unanimous verdict, single-out a dissenting juror, instruct the jury to deliberate until it reached a unanimous verdict, or instruct the jury that it must reach a decision in the case. See State v. Randall , 137 Mont. 534, 353 P.2d 1054 (1960) ; State v. Cline , 170 Mont. 520, 555 P.2d 724 (1976) ; State v. Steele , 2004 MT 275, 323 Mont. 204, 99 P.3d 210 ; and State v. Bieber , 2007 MT 262, 339 Mont. 309, 170 P.3d 444.

¶ 11 Further, in Norquay , we revised Montana’s Allen instruction, Mont. Pattern Jury Instr. Crim. 1.121 (2009), to remove coerciveness by eliminating mention of "efficient judicial administration" and the framing of a jury’s verdict as the "final test" of its service. Norquay , ¶¶ 39, 43. The revisions addressed our concerns that "such language was potentially coercive and could be construed as requiring the jury ‘to make a determination of guilt or innocence, rather than to stay true to any individual convictions or opinions.’ " Santiago , ¶ 12 (quoting Norquay , ¶¶ 40-43 ). In Santiago , we upheld the Norquay instruction against another challenge, reasoning that it did not force the jury to reach a verdict or require a jury to prioritize a unanimous decision over individual jurors’ opinions, but, rather, "is carefully worded to encourage the jury to collaborate and deliberate while not requiring a unanimous verdict" and "encourages a deadlocked jury to continue deliberations while still protecting a defendant’s right to an uncoerced jury verdict by encouraging jurors to stay true to their strongly held convictions." Santiago , ¶¶ 15, 17.

¶ 12 Although not directly attacking the Norquay instruction given by District Court, Sweet makes a backhanded challenge to the instruction, describing it as "a strong-armed tactic to try to force a verdict from a potentially deadlocked jury," comparing it to disapproved jury directives used in such cases as Jenkins v. United States , 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965) (reversing where the trial judge told the jury, "You have got to reach a verdict"), and suggesting that Santiago be limited to its facts. In answer, the State argues "[i]t is settled law that a Norquay instruction is not coercive, but properly encourages jurors ‘to deliberate further ... without surrendering their firm convictions,’ " citing Santiago , ¶ 16, and that "Sweet has not shown that the Norquay instruction is objectively coercive on its face or under these facts."

¶ 13 The Norquay instruction given at Sweet’s trial was virtually identical to the instruction we approved in Norquay and upheld in Santiago . It did not contain language instructing minority jurors to reconsider their views, nor use the "final test" language we disapproved. The instruction thus complied with the law in Montana. See Norquay , ¶ 37 ; Santiago , ¶ 17.

¶ 14 Sweet also argues that the District Court "acted too hastily when it gave the Norquay instruction." He notes the jury had been deliberating for less than three hours, argues from the jury’s initial questions that it was "confused about at least two of the jury instructions," and draws an inference from a comment made by the trial judge on the morning of the first day of trial, during voir dire, that "every effort...