Submitted on Briefs: September 26, 2018
FROM: District Court of the Thirteenth Judicial District, In
and For the County of Yellowstone, Cause No. DC 14-0740
Honorable Gregory R. Todd, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Koan Mercer,
Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General Helena, Montana
D. Twito, Yellowstone County Attorney, Brett Linneweber,
Deputy County Attorney, Billings, Montana
Defendant Todd Michael Johnson appeals his judgment of
conviction on jury verdict in the Montana Thirteenth Judicial
District Court, Yellowstone County, on the offense of partner
or family member assault (PFMA), a felony. We address the
following dispositive issue on appeal:
Whether the District Court abused its discretion in
denying Johnson's motion to excuse a prospective juror
We reverse and remand for a new trial.
Based on an alleged assault on May 29, 2014, the State of
Montana charged Johnson with PFMA, a felony in violation of
§ 45-5-206(1)(a), MCA. During jury voir dire on the
morning of trial, defense counsel informed the venire that a
central fact dispute in the case would be whether Johnson was
a "partner" as alleged by the State as an essential
element of proof of PFMA. Counsel thus inquired of three
prospective jurors whether they could vote "not
guilty" if the State proved that Johnson assaulted the
alleged victim but was unable to prove that she was his
"partner." All three generally responded that they
could and would require the State to prove each essential
element of the charged PFMA beyond a reasonable doubt.
However, the following colloquy later took place between
defense counsel and prospective Juror S.:
Prospective Juror: So you're telling me that... the State
has to prove that she is a partner and that he beat her up.
If they can't prove that she's a partner or a
girlfriend, is that what we're talking about? If they
don't prove beyond a reasonable doubt, say, maybe
they're just acquaintances, she isn't a partner, they
haven't had a relationship, then it's okay that he
beat her up?
Defense counsel: No, I'm not saying that it's okay.
What I'm asking you is, what if that was the case?
Prospective Juror: If that was the case, I would have a hard
time. Because if he truly beat her up, it makes no difference
to me whether they were an acquaintance or they were-had a
Defense counsel: Okay. Even if he's not charged with
that? Even if you're-
Prospective Juror: I personally would probably have a problem
Defense counsel: So you would find him guilty because
he's a bad man, not because he did ...