Submitted on Briefs: November 15, 2017
FROM: District Court of the Eighteenth Judicial District, In
and For the County of Gallatin, Cause No. DC 15-35A Honorable
Holly Brown, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Koan Mercer,
Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Ryan
Aikin, Assistant Attorney General, Helena, Montana
D. Lambert, Gallatin County Attorney, Eric N. Kitzmiller,
Chief Deputy County Attorney, Bozeman, Montana
JEREMIAH SHEA JUDGE
Defendant Clayton Russell ("Russell") appeals from
the jury verdict and sentence of the Eighteenth Judicial
District, Gallatin County, for driving under the influence of
alcohol (DUI), fourth or subsequent offense, a felony, in
violation of § 61-8-401, MCA.
We address the following issue on appeal:
the District Court erred by denying Russell's for-cause
challenge to a prospective juror.
AND FACTUAL BACKGROUND
On February 3, 2015, the State charged Russell with felony
During voir dire, Russell's defense counsel, John Hud,
questioned jurors individually. One prospective juror, Kaylie
Utter ("Utter"), stated that she had "a couple
of experiences that might influence [her] opinions" in
this case. Utter explained that a close friend died in a
drunk driving accident, and that her son-in-law was recently
involved in a drunk driving accident. While Utter could not
definitively answer whether those experiences would impact
her ability to be fair or impartial, she admitted that it
"definitely affects [her] opinions." When asked if
she was more inclined to believe a police officer's
testimony and find Russell guilty, Utter stated, "[t]hat
could be; I can't say for sure but it's
possible." In response to follow-up questions regarding
her ability to neutrally evaluate potential evidence, Utter
answered, "yes" when the prosecutor asked whether
her life experiences would cause her to evaluate the evidence
in a certain way. As to whether Russell's refusal to
submit to a breath test in and of itself results in an
assumption of guilt, Utter stated that she might infer guilt
from a defendant's refusal to submit to a breath test.
Russell challenged Utter for cause, and the District Court
excused Utter "based on the experiences that she's
had personally and the indication that those experiences
would maybe influence her decision."
Upon Utter being excused, the District Court called
Prospective Juror Donald Platisha ("Platisha"), who
immediately stated that he "might be in the same
position as the last juror." In a follow-up question,
Platisha explained that his sister was injured, and his
brother-in-law killed, by a drunk driver. When pressed
directly as to whether he thought his experiences would make
it hard for him to be a fair in a DUI case, Platisha stated,
"I'm like [Utter]. I don't know." Defense
Counsel Hud followed up:
Defense Counsel: Okay. But even with the presumption of
innocence, Mr. Russell and the defense would have a hard time
convincing you of his position in this case; is that fair?
Platisha: I don't believe that's true, no.
Defense Counsel: Okay. Well, we have a situation here where
Mr. Russell was arrested so a police officer believes
something was wrong. The police officer's report was sent
to the prosecutor and[, ] based on the report, charges were
filed against him. And now he's sitting here at trial.
Would it be fair to say in your mind something must ...