Wednesday, November 02, 2011

DUI Laws - Montana Jury Selection Comments by Prosecutor OK

In City of Billings v. Staebler, --- P.3d ----, 2011 WL 4828842 (Mont.), 2011 MT 254 the defendant appealed her conviction on the ground including that the prosecution voir dire of the jurors was improper. On appeal, the defense brief complained of the following items as ineffective assistance at trial:

"Counsel also argued that Staebler's trial counsel's failure to object in three instances amounted to prejudicial ineffective assistance of counsel. Specifically, the attorney was ineffective when: (1) he did not object to the prosecutor's statement that someone is always being struck and killed by drunk drivers; (2) he failed to request private questioning of a prospective juror who had familiarity with a person being killed by a drunk driver; and (3) he failed to object to the hypothetical inference that a child may be killed due to Staebler's driving."

"Before the district court, Staebler appeared with privately retained counsel who challenged Staebler's conviction in a written brief. Counsel alleged that Staebler was not afforded a fair trial, where, during voir dire, the prosecutor referenced a Billings Gazette newspaper series on driving under the influence of alcohol. The prosecutor quoted material from this series, noting that for drinking *2 and driving offenses, “there is always somebody being struck or killed.”

The appeals court wrote:

"The City attorney referenced DUI newspaper stories that frequently and dramatically report deaths that are occasioned by drunk drivers. She also addressed the less extreme cases involving drivers who had a few drinks and were stopped by an experienced officer upon witnessing slightly impaired driving. We find nothing in her comments that served to unfairly imply either that Staebler's conduct was any worse than it actually was or that it involved death or serious injury. When explaining the gradations, or levels, of intoxication, the City attorney merely discussed both extremes. The appellate court held that this was not error.

"Staebler's second claim of error pertained to a discussion between the City attorney and a prospective juror regarding the prospective juror's friend whose daughter had been killed in a DUI accident. This discussion was not lengthy and it allowed the City to determine that the prospective juror should be removed for cause. Apparently the juror made several unusual comments. We see nothing in the record indicating that other members of the jury were inflamed or prejudiced against Staebler by the completely unpredictable comments of this juror."

 In conclusion, the trial court found no error and affirmed.
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