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State v. Herrman5/28/2003
Submitted on Briefs: October 31, 2002
Raymond Herrman (Herrman) appeals from his conviction of driving under the influence of alcohol following a jury trial in the Montana Thirteenth Judicial District Court, Yellowstone County. We dismiss Herrman's claim of ineffective assistance of counsel and overrule State v. Chastain (1997), 285 Mont. 61, 947 P.2d 57, to the extent that it is inconsistent with this opinion. We decline to address whether the District Court abused its discretion in denying Herrman's motions for mistrial.
The following issues are presented on appeal:
1. Did Herrman receive constitutionally effective assistance of counsel during voir dire?
2. Did the District Court abuse its discretion in denying Herrman's motions for mistrial? Factual and Procedural Background
On August 18, 2000, Herrman was arrested in Billings, Montana, by a city police officer. He was subsequently charged with the offense of Driving Under the Influence of Alcohol in violation of §§ 61-8-401, MCA. Herrman was represented at trial by a Deputy Yellowstone County Public Defender and by the Chief Deputy Yellowstone County Public Defender. The jury found Herrman guilty of DUI and the District Court sentenced Herrman to ten years in the Montana State Prison. As this was Herrman's fourth felony conviction of driving under the influence of alcohol, the court designated Herrman as a persistent felony offender. Herrman appeals his conviction.
The circumstances giving rise to this appeal occurred at the beginning of Herrman's trial, specifically, during his initial entrance into the courtroom and during jury voir dire. Prior to the commencement of voir dire, Herrman was brought into the courtroom, in front of prospective jury members, wearing belly chains and handcuffs, which he wore for approximately ten minutes. Immediately following his entrance into the courtroom, Herrman's counsel moved for a mistrial, arguing that his appearance would affect the ability of the jurors to be impartial. The District Court denied the motion for mistrial and directed counsel to address the issue during voir dire. During voir dire, the State and defense counsel questioned the jury panelists about the incident. Each panelist responded that seeing Herrman in restraints would not affect his or her ability to be fair and impartial. At the close of trial, while the jury was in deliberations, defense counsel renewed the motion for a mistrial. The District Court reserved its ruling pending a poll of each jury member. After the jury had concluded deliberations, and prior to the reading of the verdict, the District Court asked each member of the jury whether seeing Herrman in chains had affected his or her deliberations "regarding his guilt or innocence." Each juror answered in the negative. Consequently, the court denied the motion for a mistrial, finding that, given the jurors' response, no indication of prejudice existed.
In all, twenty-four panelists were summoned in Herrman's case. In addition to Keith Montgomery, Denise Brown, Jack Byrnes, and Mindy Crain, the four panelists specifically at issue here, the remaining twenty panelists included the following: Sidney Susler, a former driver's education teacher whose son-in-law is a federal marshal; Cheryl Galt, whose son is in law enforcement; Kathryn Gunderson, whose husband is an agent in charge of the local Bureau of Alcohol, Tobacco and Firearms; Cari Baxter who lives next door to a police officer; Randall Fitch, whose good friend is an agent for the FBI; Patricia Kroger, who works for the federal fleet center and who is required sometimes to investigate fatal accidents involving alcohol; and Vivian Neum
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