Submitted on Briefs: June 5, 2019
FROM: District Court of the Third Judicial District, In and
For the County of Powell, Cause No. DC-2016-06B Honorable Ray
Dayton, Presiding Judge.
Appellant: John E. Smith, Colin M. Stephens, Nicholas K.
Brooke, Smith & Stephens, P.C., Missoula, Montana.
Appellee: Timothy C. Fox, Montana Attorney General, Brad
Fjeldheim, Assistant Attorney General, Helena, Montana.
K. Smith, Powell County Attorney, Deer Lodge, Montana.
Bruce Arnold Anderson (Anderson) appeals from his conviction
in the Third Judicial District Court, Powell County, of
sexual intercourse without consent, a felony in violation of
§ 45-5-503(1), MCA; burglary, a felony in violation of
§ 45-6-204, MCA; and sexual assault, a misdemeanor in
violation of § 45-5-502, MCA. We address the following
issue, and reverse and remand:
the District Court abuse its discretion by denying
Anderson's motion to strike juror M.J. for cause?
AND PROCEDURAL BACKGROUND
On August 20, 2015, Bruce Anderson and Shelley Locher spent
the evening socializing and drinking alcohol. Afterward,
Anderson drove Locher back to her house on his motorcycle.
Locher could only recall "snapshots" of what
happened next. She described being physically incapacitated
but cognizant of Anderson climbing through her bedroom
window, lying in bed beside her, and then leaving the next
morning. She also described feeling "very sore" and
swollen throughout her "whole lower pelvic area"
including inside and outside her vagina. According to Locher,
Anderson returned to her house later that day, walked
downstairs to the basement where she was doing laundry, and
grabbed her breasts. Locher claims she pushed Anderson away
and told him to leave.
Locher told law enforcement about the alleged assault in
November 2015 and participated in a forensic interview. The
State filed charges against Anderson in January 2016,
alleging he entered Locher's residence through the window
and engaged in sexual intercourse with her without her
consent. A jury trial was held in March 2017.
During voir dire, the prospective jurors were asked general
questions about whether they could follow the instructions
and law given to them by the judge, and render a verdict
after listening to the evidence. Defense counsel explained
the presumption of innocence and Anderson's right not to
testify and asked, "Would anybody hold that against Mr.
Anderson if he doesn't testify?" In response,
Defense counsel noted, "Everybody's shaking their
heads no." At the close of voir dire, the District Court
informed the jury panel that they would be asked to leave the
courtroom while the attorneys exercised preemptory challenges
and then brought back in, at which time the final jury
members would be seated. Before dismissing the jurors, the
District Court said, "don't be talking about the
case among yourselves. Don't be forming or expressing an
opinion about the case. Just talk about the weather, what you
saw on TV last night as long as it's not about the
case." After the jurors left, the parties each exercised
their preemptory challenges. The District Court confirmed the
list of selected jurors, and asked for all the potential
jurors to be brought back into the courtroom to be seated and
During the short recess before seating of the jurors, the
bailiff informed the court that a juror, M.J., had stated to
the bailiff that "he is pretty sure the Defendant is
guilty" based upon the juror's assessment of the
wording used by defense counsel during voir dire. The court
immediately held a meeting in chambers with counsel to
discuss the juror's comments. The court said, "I
guess the State would say, let's proceed. Got a juror
saying the guy's guilty before we even have any evidence.
What's the Defense say about it?" Defense counsel
suggested M.J. be dismissed for cause. The court asked for
M.J. to be brought into chambers for questioning by the
parties and noted a different juror from the panel could be
substituted if the court decided to dismiss him.
During questioning in chambers, the State asked M.J. whether
he had already formed an opinion about the culpability of
Anderson. M.J. stated, "I have a leaning." When
asked to clarify, he said, "Yeah, like, like just based
upon how Defense counsel was asking questions to all jurors.
There was a few wordings [sic] that made me uh believe I know
how he's going to push the defense-what, what the main
arguments are going to entail." M.J. continued, "I
don't know if I could be able to push those sort of
things all the way to the side." The State asked M.J. if
he could listen to the evidence, follow the judge's
instructions, and suspend his decision until the close of
trial when all the evidence has been presented. M.J.
responded, "I think I can 100 percent try, but life
moves forward and there's certain things from my past,