Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 07-31-2020

Case Style:


Case Number: 2020 MT 188

Judge: Beth Baker


Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana

Scott D. Twito, Yellowstone County Attorney, Michael Ellinghouse,
Morgan Dake, Deputy County Attorneys, Billings, Montana

Defendant's Attorney:

Call 918-582-6422 for free help finding a great criminal defense lawyer.


¶2 On July 12, 2017, the State charged Morales with one count of Sexual Intercourse
Without Consent, a felony, alleging that he raped his eight-year-old niece earlier that year.1

Morales entered a plea of not guilty and proceeded to trial. On the first day of trial, prior
to voir dire, the court distributed a questionnaire to prospective jurors asking whether they
or anyone they knew had been a victim of sexual assault or whether they held strong beliefs
that would make it difficult to serve as a juror in Morales’s case. The court then conducted
individual in-chambers voir dire of sixteen prospective jurors based on their responses to
the questionnaire. The court released seven of nine jurors Morales challenged for cause
based on their experiences with or strong beliefs about sexual assault, one over the
prosecution’s objection. When the questioning turned to prospective juror R.C., she
revealed in chambers that her sister, foster children with whom she grew up, and a close
friend all had been sexually abused as children. The District Court questioned R.C.:
Q. Okay. We all come to the courtroom with personal experiences and our
background that shapes how we see the world, our issue here is can you take
that information that you have with your friends and whatnot and set that

1 Morales was also charged with one count of Tampering With Witnesses and Informants, but the
State dismissed that charge prior to trial.
aside and listen to the evidence as it comes in fairly and impartially and
follow the instructions on the law that I give you?
A. I don’t think that I could.
Q. And could you elaborate on that, please?
A. Because I’ve seen the emotional damage that it caused later on through
these things that – and between that and my religious belief that sexual
relations are between a man and woman who have been lawfully married, it
is hard for me to set those beliefs aside.
Q. Even if I instructed you on the law regarding the State’s burden of proof,
Mr. Morales’[s] presumption of innocence, and the fact that Mr. Morales
does not have to present any evidence in this case whatsoever, do you feel
like your background and experience would cause you a problem?
A. Probably not, then.
Q. So you would follow my instructions?
A. I would follow your instructions, yes, although it would be difficult to set
this aside.
Q. Okay.
A. It’s a hard place for me to be to try to—I’ve never been in that situation
where I’ve had to separate those two beliefs.
Q. It’s not necessarily separating, you can’t forget everything you know,
that’s the reality. The issue, ma’am, is—like I say, we all come to this with
backgrounds and experiences; the issue is Mr. Morales is guaranteed a fair
trial; that during this trial process, it’s the State that has the burden of proof,
and that burden of proof is beyond a reasonable doubt; and because the State
has the burden of proof, Mr. Morales doesn’t have to present any evidence
whatsoever. Furthermore, you cannot draw any type of negative inference if
he chooses not to present any evidence.
Furthermore, he also has a guaranteed constitutional right not to testify. I
would instruct you specifically on his constitutional right to testify, it’s a
right we all enjoy as citizens, but you can’t consider it in any way, and
furthermore, you cannot let it enter into your jury deliberations in any way.
So that’s a synopsis of some of the law I would instruct you on in this case
with regard to some of those issues; would you follow the law I give you?
A. (No verbal response.)
Q. And there’s no right or wrong answer here, what I and the parties are
looking for is for you just to tell us the truth.
A. (No verbal response.)
¶3 At this point, the prosecutor asked the court if she could elaborate and engaged R.C.
in the following line of questioning:
Q. [Morales is] charged with something; right?
A. Right.
Q. We are not asking you to say that an act is okay, you are not setting aside
your religious beliefs, the law is that it’s not okay, so what you need to decide
is if he did it, he’s guilty, right, and so the State has to prove that to you.
A. Right.
Q. So do you understand that difference?
A. I do understand that difference.
Q. That we are not asking you to decide that conduct is okay.
A. Right.
Q. Can you fairly listen to the evidence and be impartial when you are
deciding another person’s guilt?
A. I think that I could.
Q. You think that you could?
A. I think, I’m not—
Q. But can you—if the State fails to prove its case, you’re listening to our
witnesses, and it doesn’t come together and we don’t prove it, can you find
him not guilty?
A. Yeah, I guess you’re unable to prove—if all the facts are laid out and you
are unable to prove without a doubt, then that’s what it is.
¶4 Defense counsel then followed up:
Q. Do you like judging people?
A. Not particularly.
Q. Does your religious belief system suggest you not judge people?
A. Yes.
Q. Your personal experience with the group of people you’ve identified—
your sister, the foster children and friends—does that make you feel pretty
A. Not angry.
Q. Resentful?
A. Pained, is that the same thing—I don’t think that’s resentful.
Q. Do you feel a need to exercise out that pain?
A. No.
Q. If Mr. Morales says nothing, does nothing, do you expect him to defend
A. I would expect his—you, as his representative, to defend him.
Q. And if we choose to sit quietly and say to the Court we choose not to put
on a defense, will you hold that against him?
A. No, because they would be expected to prove their case.
Q. Would you anticipate that he—would you infer anything by him not
putting on a case?
A. Yeah, I think so.
Q. What would you infer?
A. Probably guilt, because if you have nothing to hide, you hide nothing.
¶5 Morales moved to strike R.C. for cause. The prosecutor asked R.C. whether she
would be able to follow the court’s instructions and not infer guilt if Morales exercised his
constitutional right to not testify. R.C. replied, “As a citizen, I would have to follow the
law. Personal beliefs, I would have to set aside.” The court addressed R.C.:
Q. . . . I want to come back to your job as a juror [] to listen to the evidence
and make a decision on whether he’s guilty or not guilty, and that’s on the
evidence presented in the courtroom only and the law as instructed by me.
Now, I can tell you right now what I’m going to instruct you on if you serve
as a juror, number one, they have the burden of proof.
A. Right.
Q. They have to prove the offense, every element of it beyond a reasonable
doubt; two, if the State doesn’t meet their burden of proof, you must find him
not guilty; three, the Defendant has absolutely no burden of proof, he may
choose to rely on the State’s failure to prove their case; four, individually, he
has a constitutional right guaranteed by the United States and Montana
constitutions, something we all enjoy as citizens, not to testify; and
furthermore, you cannot infer anything based on his decision not to testify,
and you cannot let that enter into your jury deliberations in any way; can you
follow the law that I give you?
A. Yes.
Q. And despite knowing former foster children and relatives and friends who
have been sexually abused, can you put that aside and judge Mr. Morales
based solely on the evidence in this courtroom and not let that personal bias
or knowledge that you have impact Mr. Morales and the evidence you hear
in this courtroom?
A. Yes.
Q. Are you certain?
A. Yes.
¶6 The court denied Morales’s motion to remove R.C. for cause. Morales subsequently
used a peremptory challenge to strike her from the panel and exhausted all of his
peremptory challenges. At the conclusion of trial, Morales was convicted and sentenced
to 100 years in prison, with 50 years suspended and a 25-year parole restriction. This
appeal followed.
¶7 We review for abuse of discretion a district court’s denial of a challenge to a
prospective juror for cause. State v. Anderson, 2019 MT 190, ¶ 11, 397 Mont. 1,
446 P.3d 1134 (citing State v. Cudd, 2014 MT 140, ¶ 6, 375 Mont. 215, 326 P.3d 417).
“A district court abuses its discretion if it denies a challenge for cause when a prospective
juror’s statements during voir dire raise serious doubts about her ability to be fair and
impartial or actual bias is discovered.” Anderson, ¶ 11 (citing Cudd, ¶ 6); see also
State v. Jeremiah Johnson, 2014 MT 11, ¶ 8, 373 Mont. 330, 317 P.3d 164. If the defendant
subsequently uses a peremptory challenge to strike the prospective juror and ultimately
exhausts all afforded peremptory challenges, the erroneous denial of a challenge for cause
constitutes structural error requiring automatic reversal. State v. Johnson, 2019 MT 68, ¶
7, 395 Mont. 169, 437 P.3d 147 (citing State v. Good, 2002 MT 59, ¶¶ 62-65, 309 Mont.
113, 43 P.3d 948); see also State v. Allen, 2010 MT 214, ¶ 20, 357 Mont. 495, 241 P.2d
¶8 Morales argues that the District Court abused its discretion in denying his for-cause
challenge to R.C. because her voir dire statements demonstrated an inability to act fairly
and impartially in his trial. He contends that because he had to exercise a peremptory strike
to remove R.C. and subsequently exhausted his peremptory challenges, this Court must
reverse and remand for a new trial.
¶9 Criminal defendants have a fundamental right to be tried by an impartial jury.
U.S. Const. amend. VI; Mont. Const. art II, § 24. To safeguard this right, a defendant may
challenge a prospective juror for cause if the juror evinces “a state of mind in reference to
the case or to either of the parties that would prevent the juror from acting with entire
impartiality and without prejudice to the substantial rights of either party.”
Section 46-16-115(2)(j), MCA; see also Anderson, ¶ 14; Johnson, ¶ 9; Cudd, ¶ 8.
¶10 Few people are entirely impartial regarding criminal matters. See, e.g.
State v. Ghostbear, 2020 MT 60, ¶ 12, 399 Mont. 208, 459 P.3d 1285 (citing
Anderson, ¶ 15); Allen, ¶ 26; State v. Champagne, 2013 MT 190, ¶ 20, 371 Mont. 35,
305 P.3d 61 (citing State v. Jay, 2013 MT 79, ¶ 20, 369 Mont. 332, 298 P.3d 396)
(“[E]very person comes to jury duty with preconceptions.”). But the dispositive inquiry is
not whether the prospective juror has expressed a bias or fixed opinion, shares a common
or similar experience with one of the parties, or expresses doubt about the ability to be fair
and impartial. Johnson, ¶ 11. Rather, the district court must evaluate whether the totality
of the juror’s statements raises a serious question or doubt about his or her willingness or
ability to set aside personal biases and render a verdict based solely on the evidence
presented. See, e.g., Johnson, ¶ 11; Champagne, ¶ 20 (citing Jay, ¶ 20);
State v. Falls Down, 2003 MT 300, ¶ 23, 318 Mont. 219, 79 P.3d 797
(citing State v. DeVore, 1998 MT 340, ¶ 21, 292 Mont. 325, 972 P.2d 816, overruled in
part on other grounds by Good, ¶ 63).
¶11 The court should err on the side of caution and remove a juror “if questioning raises
serious doubts as to the juror’s ability to be fair and impartial.” Anderson, ¶ 15
(citing Jay, ¶ 19); see also Johnson, ¶ 11 (citing State v. Braunreiter, 2008 MT 197, ¶ 10,
344 Mont. 59, 185 P.3d 1024) (holding that district courts must resolve any doubt or
ambiguity in favor of disqualification). The court evaluates the prospective juror’s
responses as a whole. Cudd, ¶ 15. Consistent with the abuse of discretion standard,
because the trial judge “has the ability to look into the eyes of the juror in question, and to
consider her responses in the context of the courtroom,” we afford a trial court deference
in making this determination. State v. Robinson, 2008 MT 34, ¶ 13, 341 Mont. 300,
177 P.3d 488 (citation omitted), overruled in part on other grounds by State v. Gunderson,
2010 MT 166, ¶ 50, 357 Mont. 142, 237 P.3d 74; see also Cudd, ¶ 9;
Jeremiah Johnson, ¶ 20.
¶12 If a prospective juror makes a suspect statement, counsel or the court may ask
open-ended questions to investigate, clarify, or confirm whether a serious question exists
about the juror’s bias or impartiality. Johnson, ¶ 12; Allen, ¶ 26. It is improper, however,
for counsel or the court to attempt to rehabilitate the juror by asking leading or loaded
questions eliciting a one-syllable answer, such as whether the juror will follow the law,
jury instructions, or an order of the court. Johnson, ¶ 12. Such questions put ordinary
citizens in the untenable position of having to disagree with the court and are therefore
inherently unreliable. Johnson, ¶ 12; Good, ¶ 54. In contrast, a prospective juror’s
spontaneous and unprompted responses to open-ended questions are the most likely to be
reliable and honest. Johnson, ¶ 11; State v. Russell, 2018 MT 26, ¶ 14, 390 Mont. 253,
411 P.3d 1260; Cudd, ¶ 8; Jeremiah Johnson, ¶ 10; Allen, ¶ 26; Braunreiter, ¶ 9;
Robinson ¶ 11; DeVore, ¶ 28.
¶13 Morales argues that R.C.’s initial, spontaneous voir dire statements raised serious
doubts about her ability to be fair and impartial; that she tacitly resisted recanting; and that
she agreed to follow the law by giving single-syllable answers only after continued
prodding by the prosecutor and the District Court. He contends that our decisions in
Anderson and Johnson are controlling.
¶14 In Anderson, ¶ 5, after voir dire had concluded, a juror selected for the panel
voluntarily stated to the bailiff that he was “pretty sure the Defendant is guilty.” The bailiff
relayed this information to the district judge, who then questioned the juror in chambers.
Anderson, ¶ 5. During questioning, the juror stated that he would “100 percent try” to
weigh the evidence and follow jury instructions, but he would be troubled if Anderson
chose not to testify, explaining that his belief “that an innocent man has nothing to hide
prevails slightly above [] the idea of [] being accidentally trapped by a trick question []
from the other side and counsel.” Anderson, ¶¶ 6-7. When asked later whether he could
“give Mr. Anderson a fair shot,” the juror responded, “I believe I could[,]” but then added,
“There just is a slight bit of preconception stepping in, forward now. And that’s, that’s
why I told the Bailiff why, what I wanted you to be aware of.” Anderson, ¶ 19. The
district court explained the law and asked the juror if he could keep an open mind, to which
the juror responded, “I can absolutely keep an open mind[.]” Anderson, ¶ 8. The
district court denied Anderson’s challenge for cause. Anderson, ¶ 8. We reversed,
concluding that despite his eventual promise to keep an open mind, the prospective juror
did not relinquish his opinion of Anderson’s guilt, but instead reaffirmed his bias and tacitly
resisted recanting several times. Anderson, ¶ 20. We reiterated that the juror’s
“multiple, spontaneous answers to previous questions were ‘most likely to be reliable and
honest’ indicators of his state of mind.” Anderson, ¶ 18 (quoting Jay, ¶ 19).
¶15 Anderson is distinguishable. Although R.C. initially expressed uncertainty about
her ability to be impartial based on her experiences with victims of child sexual abuse, her
statements taken as a whole reflect a willingness to set her beliefs aside and render a verdict
based on the evidence presented. Unlike the juror in Anderson, R.C. firmly stated that she
understood she would have to follow the law by applying the presumption of innocence
and holding the State to its burden of proof. And when asked by the prosecutor whether
she could be impartial and judge the evidence fairly, R.C. responded that she could.
¶16 Johnson also is distinguishable. There, a prospective juror made multiple
spontaneous and emphatic statements that she would “have a hard time” and a “problem”
requiring the State to prove an essential element of the charged offense and likely would
be unable or unwilling to follow the court’s jury instructions due to her strongly-held
personal bias. Johnson, ¶ 4. The juror finally agreed in “single-syllable” answers to follow
the jury instructions after being asked “a series of leading and loaded questions” by the
prosecutor. Johnson, ¶ 16. The district court denied Johnson’s for-cause challenge.
Johnson, ¶ 5. We reversed, holding that this was “a clear, if not quintessential, case of a
prospective juror clearly and unequivocally manifesting serious questions as to whether
she could be fair and impartial, followed by a recantation improperly coaxed by leading
and loaded questions that would otherwise have required the juror to defy the court and the
law.” Johnson, ¶ 16. We observed, “This is not a case where a prospective juror merely
had an experience in common with, or similar to, the experience of the accused or victim
at issue. Nor is this a case where a prospective juror merely expressed concern about her
ability to be fair and impartial but ultimately believed that she could and pledged to try.”
Johnson, ¶ 13. Rather, the juror expressed her bias in statements that were
“consistent, clear, unequivocal, and emphatic[.]” Johnson, ¶ 15.
¶17 Like prospective jurors in many cases, R.C. had an experience in common with the
victim. She expressed her concern about her ability to be impartial but ultimately
concluded she was certain that she could be. Her responses contrasted sharply with those
of prospective jurors S.C. and S.M., whom the District Court questioned in chambers
immediately preceding R.C. and dismissed for cause on Morales’s motion. The first, S.C.,
testified that her mother was sexually abused as a child and that she would be likely to find
Morales guilty, “regardless of what the State does or doesn’t do,” if evidence presented at
trial made her angry or resentful. She understood that the State had the burden of proof
but stated only that she “probably” could be fair. The second, S.M., explained that his
sister was sexually abused as a child. He stated repeatedly that he would have a hard time
being fair and listening to the evidence presented, and he never relinquished this position.
¶18 Unlike S.C., R.C. explained that her experiences made her pained, rather than angry
or resentful, and that she was certain she could be fair. And unlike S.M., R.C. wavered in
her response to counsels’ questions but relinquished her initial responses. She concluded
with confidence that she could set aside her personal beliefs and weigh the evidence. This
set R.C. apart from S.M. and S.C. Like them, R.C. held life experiences similar to the
victim’s, but of the three, she alone “convincingly affirm[ed] [] her ability to lay aside any
misgivings and fairly weigh the evidence.” Cudd, ¶ 9 (affirming the district court’s denial
of a for-cause challenge in a rape case to a prospective juror who disclosed that her daughter
had been raped but agreed nonetheless to hold the State to its burden); see also
State v. Russell, ¶¶ 17-19 (upholding denial of a challenge for cause in a felony DUI case
to a prospective juror whose sister was injured, and brother-in-law killed, by a drunk driver;
though he initially expressed concern because of his own similar experiences, the
prospective juror did not show an inability to act with impartiality and without prejudice
in the case).
¶19 Morales argues that the District Court improperly coaxed R.C. into recanting her
initial statements, but the record does not support this contention. Rather than leading R.C.
to give the answer it wanted, the court explained the law and the trial process in an attempt
to determine whether she was comfortable in having to put aside her personal beliefs and
experiences. “[E]ducating jurors about the process and dispelling honest misconceptions
they may hold is a proper function of voir dire, and should not be viewed as alarming or
disqualifying. That purpose, along with the deference we are to give to a district court’s
determination regarding a challenge for cause . . . provides significant leeway for open
dialog[ue] about juror viewpoints during juror selection.” Johnson, ¶ 19
(Rice, J., concurring) (citing Robinson, ¶ 13). The record reflects that the District Court
educated R.C. about the law and a juror’s role and asked open-ended questions to gauge
whether she could be fair, assuring her, “There’s no right or wrong answer.” Unlike the
trial court’s summary denial of the defendant’s for-cause challenge in Johnson, the District
Court here followed up again to ensure R.C. was comfortable setting her personal beliefs
aside and rendering a verdict based solely on the evidence.
¶20 In Champagne, this Court affirmed the district court’s denial of the defendant’s
for-cause challenge to prospective juror Lamere. Lamere initially indicated that he would
draw a negative inference if Champagne chose not to testify and preferred Champagne to
prove his innocence. Champagne, ¶ 26. Once the district court explained the presumption
of innocence and the right not to testify, however, Lamere averred that he would follow
the law as instructed by the court and would remain impartial. Champagne, ¶ 26. We
affirmed, deferring to the district court’s determination that Lamere’s responses, taken as
a whole, demonstrated his ability to be fair. Champagne, ¶ 26.
¶21 Like Lamere, R.C. initially expressed doubt about her ability to be impartial. She
agreed with defense counsel that she might infer guilt if Morales did not put on a case and
that her personal experiences would make it difficult to presume him innocent. But once
the District Court explained the applicable law, she agreed that she would be able to follow
it. In fact, she was “certain” she could do so. This further distinguishes R.C. from the
prospective juror in Johnson, ¶ 14, who emphatically and repeatedly expressed a “problem”
with following the law. As we held in Robinson, ¶ 10, the trial court does not abuse its
discretion when it concludes, based on the totality of the prospective juror’s answers, that
she can be impartial after the juror initially expresses concern about remaining impartial
but believes she can lay aside her concerns and fairly weigh the evidence.
¶22 Based on the totality of R.C.’s statements during the District Court’s thorough inchambers voir dire, we conclude that the court did not abuse its discretion in accepting
R.C.’s ultimate assurance that she could lay aside her personal experiences and fairly and
impartially weigh the evidence despite her initial statements of prejudice.2

Outcome: he District Court did not abuse its discretion in denying Morales’s for-cause
challenge to R.C. The judgment of conviction is affirmed.

Plaintiff's Experts:

Defendant's Experts:


Find a Lawyer


Find a Case