APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Rosebud, Cause No. DC 09-34 Honorable Gary L. Day, Presiding Judge
The opinion of the court was delivered by: Justice Brian Morris
Submitted on Briefs: January 16, 2013
Justice Brian Morris delivered the Opinion of the Court.
¶1 James Wilson (Wilson) appeals his conviction in the Sixteenth Judicial District, Rosebud County. Wilson argues that the District Court deprived Wilson of his fundamental right to be present at all critical stages of the proceedings against him. Wilson was not present at a sidebar conference during jury selection after which the District Court removed a potential juror from the jury pool. We affirm.
¶2 Wilson presents the following issue on appeal:
¶3 Whether Wilson's absence from the sidebar conference during jury selection requires reversal of the trial verdict?
PROCEDURAL AND FACTUAL BACKGROUND
¶4 Wilson was drinking at the Whiskey Gulch Saloon in Colstrip, Montana, on December 10, 2009. Jason Burnett, Spencer Benson, Heath Becker, Terran Harris and a group of friends also were at Whiskey Gulch Saloon to celebrate Burnett's recent engagement. Burnett's family owned the saloon. Wilson started a fistfight with Harris. Burnett and others helped to break up the fight. Burnett ordered Wilson to leave.
¶5 Wilson returned to the saloon approximately thirty minutes later with a gun. Becker was standing outside the saloon near the back deck. Wilson killed Becker with a shot to his head. Benson also was outside the saloon near his own car. Wilson killed Benson with a shot to his chest. Wilson then entered the saloon and walked toward Burnett and his friends. Wilson shot Burnett in the head, injuring, but not killing Burnett. Harris and others disarmed Wilson.
¶6 The State charged Wilson with deliberate homicide. The list of potential jurors included several of the EMTs who had responded to the shooting. The Court discussed this fact with the parties at the beginning of the jury selection process. The prosecutor noted that he had listed these same EMTs as potential witnesses. The prosecutor explained that he no longer anticipated calling any of the EMTs as witnesses. As a result, the prosecutor would not stipulate at that time that all of the EMTs were unfit for jury service.
¶7 The first group of potential jurors called by the clerk included Amanda McCarthy (McCarthy), one of these EMTs. The record ...