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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OUI Law - MA Law on Juror Replacement During Deliberations

In today's case the issue involved the replacement of a juror during deliberations. In Commonwealth v. Cameron, Slip Copy, 2011 WL 3341091 (Table) (Mass.App.Ct.) during jury deliberations, the trial judge dismissed a juror because of a communication problem raised by other jurors. The defendant appealed upon two grounds: (1) that the judge discharged the juror without good cause in violation of the defendant's due process rights; and (2) that the judge's failure to instruct the remaining jurors on the reason for the discharge prejudiced the defendant.







The appeals court found no error:







"The trial judge did not abuse his discretion when he removed Mr. B because he had language problems. Mr. B admitted that he was having difficulty understanding the deliberations. When the judge asked Mr. B whether he did not feel fluent enough, Mr. B's response—“To make a decide this case”—permitted the trial judge to find that Mr. B had problems with the English language. See Commonwealth v. Leftwich, 430 Mass. 865, 873 (2000) (noting that inability to perform functions of juror must be supported by record). An inability to speak and understand the English language disqualifies a person from jury service; thus it is good cause for discharge. See G.L. c. 234A, § 4; Commonwealth v. Acen, 396 Mass. 472, 479 (1986) (“It is unquestionable that an ability to speak English is a relevant and important qualification for jurors”). Additionally, the language problem was obviously personal to Mr. B and unrelated to the issues of the case."







As to instructing the other jurors as to the reason for discharge, the law on that issue in MA states:







“If a juror is discharged and an alternate substituted, the jury should be instructed not only to begin deliberations anew ... but also that the reason for discharge is entirely personal and has nothing to do with the discharged juror's views on the case or his relationship with his fellow jurors.” Commonwealth v. Connor, 392 Mass. at 845–846. However, “[a] judge is not required in every case to adhere to the precise language ... used in Commonwealth v. Connor.” Commonwealth v. Zimmerman, supra at 151. Some circumstances that surround the discharge of a deliberating juror “will leave no room for speculation as to the reason for the discharge, such that the failure to give a Connor instruction is not error.” Ibid .







The appeals court found no actual error. "This case presents the circumstances which do not require the Connor instruction. The reason for the discharge was obvious to all the jurors. The judge was informed that “several” jurors were having difficulty communicating with Mr. B. In each individual colloquy, the judge confirmed the issue by referencing a difficulty in communicating with Mr. B."

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OWI Law - Indiana Say 5 Person Jury Trial OK with Defense Consent

In Bex v. State of Indiana --- N.E.2d ----, 2011 WL 3667054 (Ind.App.), the defendant proceeded to trial on an OWI. A jury of six members was seated without an alternate juror being selected. During the trial, one juror suffered a medical emergency, and the case proceeded to a verdict with the five remaining jurors. Initially, defense counsel acknowledged the defense's agreement to continuing with only five jurors, but counsel later moved for a mistrial, which the trial court denied. The five-person jury found Bex guilty, and the trial court sentenced her to 360 days in jail with 350 days suspended to probation and eighty hours of public restitution work.

On appeal, the defendant claimed that a jury trial of less than 6 was unconstitutional. The Appeal Court held that under the Sixth Amendment, a defendant may waive the statutory right to a six-person jury in cases involving a Class D felony or a misdemeanor and consent to a trial by a five-person jury; based upon a defendant's right to waive the presence of an entire jury, it would be inconsistent that a defendant could not waive the presence of one juror.


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