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State v. Turnsplenty6/3/2003
Submitted on Briefs: April 18, 2002
Dan Turnsplenty (Turnsplenty) appeals from his conviction of driving under the influence of alcohol following a jury trial in the Thirteenth Judicial District Court, Yellowstone County, on October 25, 2001. We affirm.
Turnsplenty raises the following issue on appeal: whether Turnsplenty's trial counsel provided ineffective assistance of counsel during voir dire.
FACTUAL AND PROCEDURAL BACKGROUND
At 10:00 p.m., on January 11, 2001, Officer Jamie Schillinger (Schillinger) was patrolling on Jackson Street in Billings, Montana, when he observed a vehicle turning onto the street in front of him. The vehicle was being driven in an erratic manner, making quick darting maneuvers as it proceeded. The vehicle's rear license plate light was not illuminated as required by law. At the next intersection, Schillinger observed the vehicle quickly accelerate when the traffic light turned green, and then initiate a left turn onto State Street, following behind another vehicle. Schillinger observed the leading vehicle properly turn and enter the closest lane of State Street, but that the suspect vehicle "quickly shot around that car without using a turn signal and went all the way over to the wrong lane of traffic." Schillinger activated the lights on his patrol vehicle to initiate a traffic stop. In response, the suspect vehicle turned onto Third Avenue South and pulled over. The vehicle was driven by Turnsplenty.
Speaking with Turnsplenty, Schillinger noticed a strong oder of alcohol coming from inside the vehicle and on Turnsplenty's breath, and that Turnsplenty's eyes were bloodshot and glassy. Following an investigation at the scene, including field sobriety tests, Turnsplenty was placed in custody and transported to the Yellowstone County Detention Facility. He was charged by information with driving under the influence of alcohol.
On May 21, 2001, Turnsplenty went to trial before a jury on the charge. During voir dire, a question and answer exchange between defense counsel and panelist Boyer included the following:
Counsel: So do you believe that [Native Americans] have a lower tolerance for alcohol?
Mr. Boyer: I don't know if they have a lower tolerance. I know it seems like they have a great deal of consumption of it.
Counsel: So we probably encounter more DUIs with Native Americans than with Caucasians?
Mr. Boyer: I would think the odds of that are pretty good.
Counsel: Because Daniel is a Native American and the charge, you've already indicated that you have great concerns about drinking, do you think you might have something of a predisposition in this case?
Mr. Boyer: I might. Counsel: So do you think that it's-do you think he's being arrested for being under the influence of alcohol, he's Native American, and in your experience do you think that he's guilty?
Mr. Boyer: I think I would go back, and the young man's going to have to state his case and prove his case.
Counsel: Okay.
Defense counsel did not follow up this exchange with any additional questions or an explanation of the State's burden of proof, and did not challenge Boyer for cause, but used a peremptory challenge to exclude Boyer from the panel.
Under questioning by the prosecutor, Panelist Deming stated that a member of his community had a son killed by a drunk driver which had "almost killed his mother," and that the family had not gotten over the devastation. Deming, whose brother-in-law had been a patrol officer, further indicated that he had seen too many DUIs and believed the law
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