07/28/2020
DA 18-0083
Case Number: DA 18-0083
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 191N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ROBERT JAMES LeCOU,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon, Cause No. DC 16-11
Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellant
Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Brad Fjeldheim, Assistant
Attorney General, Helena, Montana
Alex Nixon, Carbon County Attorney, Dan Guzynski, Special Deputy
County Attorney, Red Lodge, Montana
Submitted on Briefs: July 15, 2020
Decided: July 28, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Robert James LeCou appeals the judgment of the Twenty-Second Judicial
District Court, Carbon County, adjudging him guilty of three counts of deliberate homicide
and sentencing him to three hundred years’ imprisonment without the possibility of parole.
We affirm on the single issue LeCou raises, concluding that the District Court did not abuse
its discretion when it denied LeCou’s motion to strike a prospective juror for cause.
¶3 On April 8, 2016, the State charged LeCou with three counts of felony deliberate
homicide in connection with the shooting deaths of his wife Karen and her sister and
brother-in-law, Sharon and Lloyd Lamb. The three victims were found dead a day earlier
in the home they shared with LeCou, each with multiple bullet wounds.
¶4 LeCou’s case proceeded to trial on June 4, 2017. Defense counsel inquired during
voir dire whether prospective jurors would hold against LeCou his decision not to testify.
Prospective Juror Greenough was one of three jurors to respond in the affirmative:
Mr. Greenough: I was raised to look a man in the eye and say what I think.
And my main concern is for the victims’ family. I would have a lot of
problems hearing somebody say, “Yeah, I didn’t do it.”
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[Defense counsel]: So my question is if Mr. LeCou does not testify and the
judge instructs you, after you’ve heard all of the evidence, that you can’t
factor that into your decision making, are you going to be able to follow that?
Mr. Greenough: Of course I’d listen to the judge. I’m not sure I’d sway my
opinion on that. I like to have a man look me in the eye and tell me what
happened. That’s the way I was raised.
[Defense counsel]: Sure. So given that opinion, can you be—can you give
us assurances that you would be a fair and impartial juror?
Mr. Greenough: I don’t think I can.
[Defense counsel]: Okay. Your Honor, with that, I move for Mr. Greenough
to be challenged for cause.
¶5 The State followed up:
[State]: Mr. Greenough, it seems like you have a personal code of honor. Is
that right?
Mr. Greenough: I believe I do.
[State]: And I would imagine as part of that code of honor that you would
stand by your word, correct?
Mr. Greenough: Absolutely.
[State]: And I would imagine that would include if you took an oath you
would fulfill your duty and listen to the judge. Is that correct?
Mr. Greenough: If I took an oath, yes.
[State]: And I think that from what I’ve heard from you that you could sit
here and listen to the people that have stories to tell and fairly evaluate them
for what credit you think it deserves. Does that seem fair?
Mr. Greenough: Yes.
[State]: Your Honor, I’m going to object.
¶6 Then the court addressed the prospective juror:
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The Court: Mr. Greenough, the question is if I give you an instruction to
you [sic] and if the defendant doesn’t testify, that you cannot consider that
fact in coming to your verdict. Can you honor the Court’s instruction?
Would you be willing to commit and promise that you would honor that?
Mr. Greenough: Yes.
The Court: Very well. The challenge for cause is denied.
¶7 At the close of voir dire, LeCou used a peremptory challenge to remove
Prospective Juror Greenough from the jury and exhausted all of his peremptory challenges.
After a six-day trial, the jury found LeCou guilty of all three counts of deliberate homicide.
¶8 We review a district court’s denial of a challenge to a prospective juror for cause
for an abuse of discretion. State v. Johnson, 2019 MT 68, ¶ 7,
395 Mont. 169,
437 P.3d 147
(citation omitted). A court abuses its discretion “if it denies a challenge for cause when a
prospective juror’s statements during voir dire raise serious doubts about the juror’s ability
to be fair and impartial or actual bias is discovered.” State v. Anderson,
2019 MT 190,
¶ 11,
397 Mont. 1,
446 P.3d 1134 (citation omitted). 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 of a prospective juror for cause
constitutes a structural error requiring automatic reversal. Johnson, ¶ 7.
¶9 LeCou argues that the District Court abused its discretion in denying his
for-cause challenge to Prospective Juror Greenough, and that because he subsequently used
a peremptory challenge to remove Juror Greenough from the jury and exhausted his
peremptory challenges, we must reverse and remand for a new trial.
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¶10 “Criminal defendants have fundamental federal and state constitutional rights to an
impartial jury.” Johnson, ¶ 9 (citing U.S. Const. amend. VI; Mont. Const. art. II, § 24). A
defendant thus may challenge a prospective juror for cause if the juror demonstrates a state
of mind that prevents the juror from acting with entire impartiality and without prejudice
to the substantial rights of the defendant. Section 46-16-115(2)(j), MCA.
¶11 A district court need not remove a prospective juror for cause where the juror
expresses concerns about remaining impartial but believes that he or she can fairly weigh
the evidence. State v. Braunreiter, 2008 MT 197, ¶ 10,
344 Mont. 59,
185 P.3d 1024. The
court should remove a juror, however, when the totality of the juror’s voir dire statements
raises a serious question or doubt about his or her willingness or ability to set aside bias
and fairly and impartially render a verdict based solely on the evidence presented and
instructions given. Johnson, ¶ 11. Courts should resolve ambiguity in favor of
disqualification. Anderson, ¶ 15; Braunreiter, ¶ 10. This Court affords a degree of
deference to the trial judge, who has the ability to “look into the eyes of the juror in
question” and consider his or her responses in the context of the courtroom.
State v. Robinson,
2008 MT 34, ¶ 13,
341 Mont. 300,
177 P.3d 488, overruled on other
grounds by State v. Gunderson,
2010 MT 166, ¶ 50,
357 Mont. 142,
237 P.3d 74.
¶12 The district court may clarify a prospective juror’s statements and ask questions to
better evaluate whether the juror can set aside his or her bias. Johnson, ¶ 12;
Braunreiter, ¶ 11. The court should not attempt to rehabilitate a prospective juror,
however, by placing him “in a position from which [the juror] will not disagree with the
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court.” Braunreiter, ¶ 11. “In contrast to single-syllable answers prompted by leading
questions, spontaneous and unprompted responses to open-ended questions are generally
the most truthful, accurate, and reliable indicators of bias and the ability to be fair and
impartial.” Johnson, ¶ 11 (citations omitted).
¶13 LeCou argues that Prospective Juror Greenough’s initial voir dire statements raised
serious doubts about his ability to be fair and impartial when he singled himself out as
being uncomfortable with LeCou’s decision not to testify; stated he would listen to the
judge but wasn’t sure jury instructions would sway his opinion; expressed that his main
concern was for the family of the victims; and stated “I don’t think I can” in response to
defense counsel’s question whether he could “give assurances” to be fair and impartial.
¶14 In Johnson, we held that the district court erroneously denied the defendant’s
for-cause challenge to Prospective Juror S., who made multiple spontaneous statements
that she would have a “problem” and a “hard time” requiring the State to prove an essential
element of the offense charged and would likely be unable or unwilling to follow the
court’s jury instructions due to her firmly-held personal bias. Johnson, ¶¶ 4, 16. The
prospective juror finally agreed in “single-syllable” answers to follow the jury instructions
after being asked “a series of leading and loaded questions” by the State. Johnson, ¶ 16.
We observed that the juror’s statements of bias were “consistent, clear, unequivocal, and
emphatic[.]” Johnson, ¶ 15. We further noted that the district court in that case summarily
denied Johnson’s challenge without independently following up with the prospective juror.
Johnson, ¶ 5.
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¶15 Johnson is distinguishable. Unlike Prospective Juror S.’s statements in that case,
Greenough’s statements were not “unequivocal” or “emphatic.” Instead, he expressed
uncertainty about his ability to set aside his personal beliefs, saying “I’m not sure” and
“I don’t think I can.” As we have repeatedly held, “few people are entirely impartial
regarding criminal matters[.]” Anderson, ¶ 15. A court is not required to remove a juror
who “expresses concern about impartiality but believes he can fairly weigh the evidence.”
Anderson, ¶ 15 (citation omitted). Once the District Court explained the law to him,
particularly that a defendant’s choice not to testify could not be held against him,
Prospective Juror Greenough agreed that he would listen to the judge if he took an oath to
do so; fairly evaluate the witnesses; and honor the court’s instructions. His answers thus
differed from the juror in Johnson, who consistently and unequivocally stated that she
would have a problem setting aside her personal beliefs and biases. Johnson, ¶¶ 4, 15.
¶16 LeCou also contends that, similar to Johnson, the State and District Court engaged
in improper rehabilitation of Prospective Juror Greenough by asking him leading and
loaded questions, to which he reluctantly gave “one-word” assents. He contends that
Greenough’s initial, voluntary statements were reliable indications of serious doubt about
his ability to be fair and that the State and that the court coaxed him to recant by asking
him questions that put him in a position of having to disagree with the court.
¶17 We find Johnson distinguishable in this regard as well. There, after the challenged
prospective juror repeatedly expressed her bias, the State asked questions such as “Would it
be impossible for you to [require the State to prove an essential element]?” and “Will you
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follow that instruction even if that is difficult for you?” Johnson, ¶ 5. We explained that
“[w]hen faced with the prospective juror’s unequivocal bias . . . the State made no attempt
to use open-ended questions to allow the prospective juror to clarify or allay the obvious
problem with her patently biased responses.” Johnson, ¶ 16. And then, based on the juror’s
“single-syllable” assents, the District Court denied the challenge without asking additional
questions to confirm that the juror could be fair. Johnson, ¶ 5.
¶18 The State’s questions in the instant case did not lead Prospective Juror Greenough
to a compelled response like those at issue in Johnson, and the prospective juror did not
demonstrate unequivocal bias like the juror in that case. And unlike the court in Johnson,
the District Court here stepped in to educate Prospective Juror Greenough on the
Defendant’s rights and confirmed that Greenough would not hold against him any decision
not to testify at trial. Though the District Court and counsel could have done more to
educate Prospective Juror Greenough about the process and the constitutional rights of an
accused in order dispel his honest misconceptions, see State v. Morales, 2020 MT 188,
¶ 19, ___ Mont. ___, ___ P.3d ___, we conclude that the District Court did not coax
Greenough into recanting, but instead confirmed that Greenough would reach a verdict
based on the evidence and the law. Able to look into Greenough’s eyes and assess his
responses to its own questions as well as to those posed by the State, the trial court was in
the best position to make this determination.1
1
As in Morales, ¶ 22 n.2, we observe that the Dissent raises valuable considerations but that
imposing its suggested presumption would be a departure from our existing approach and has not
been suggested or briefed by the parties.
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¶19 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review. The District Court did not abuse its discretion when it
denied LeCou’s for-cause challenge to Prospective Juror Greenough. The judgment is
affirmed.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
Justice Ingrid Gustafson, dissenting.
¶20 I dissent from the majority’s affirmation of the District Court’s denial of LeCou’s
for-cause juror challenge.
¶21 The Opinion accurately provides the legal framework of for-cause juror challenges,
indicates a juror’s state of mind may involve both fixed or concerning opinions and/or
shared experiences, that spontaneous and unprompted responses are the most reliable
indicators in assessing a juror’s state of mind, condemns using leading questions to try to
rehabilitate the juror, and indicates the need to err on the side of caution to remove a juror
if questioning raises a doubt as to the juror’s ability to be fair and impartial. Contrarily,
the Opinion then excuses the subject juror’s fixed prejudicial mindset, discovered through
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spontaneous response, and “rehabilitated” by the prosecutor’s leading questions to
conclude recusal of the juror was not required.
¶22 Over the recent past, we have had a number of for-cause juror challenge appeals.
Similar to this case, we have laid out the legal analysis condemning rehabilitation through
leading questions and emphasizing the need to err on the side of removal and then decided
most of these cases on a split basis.
¶23 As discussed in my dissent in State v. Morales, 2020 MT 188, ___ Mont. ___, ___
P.3d ___, we have failed to provide sufficient direction for district courts to reach
consistent decisions regarding for-cause juror challenges. Again, I reiterate my belief that
our prior holdings requiring district courts to err on the side of caution and remove a juror
if questioning raises considerable doubts as to the juror’s ability to be fair and impartial
and should be interpreted as a presumption for recusal if a juror expresses unprompted
statements indicating she or he could not be impartial or advances a fixed or set belief
indicating the existence of a bias or prejudice to either side. The presumption could then
only be overcome if in the course of open-discussion, not leading questions followed by
monosyllabic responses, the juror unequivocally expresses an ability to set aside the set
belief or bias or otherwise expresses recognition that his or her shared experience would
not impact the way in which the juror perceives the alleged victim, the defendant, or the
state.
¶24 Juror challenges call into question whether the juror has a state of mind that is truly
impartial. In jury challenge cases we are balancing the defendant’s constitutional right to
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a fair trial against the practicalities of losing too many jurors such that trial has to be
rescheduled.1 This heightened right to a fair trial, however, is the basis of this Court’s prior
holdings that courts should err on the side of disqualification when a juror’s mind set calls
into question his or her ability to be fair and impartial and act without prejudice to either
party. Anderson, ¶ 15; see also Johnson, ¶ 19; Jay, 2013 MT 79, ¶ 19,
369 Mont. 332,
298 P.3d 396; and Golie,
2006 MT 91, ¶ 18,
332 Mont. 69,
134 P.3d 95.
¶25 Here, the subject juror, in response to counsel’s questioning expressed a fixed
mindset that he expected LeCou to testify—to “look me in the eye and tell me what
happened”—and he would have a lot of problems hearing LeCou say, “Yeah, I didn’t do
it.” Clearly, these responses raised considerable doubts as to the juror’s ability to be fair
and impartial—indeed it appears the juror already believed LeCou guilty and would, even
if LeCou testified, have trouble accepting any testimony from LeCou asserting he did not
commit the crimes. I would conclude this raised a presumption for recusal. The prosecutor
then, through leading interrogation, used the juror’s rigid mindset involving his “code of
honor” to lead the juror to assert in monosyllabic responses that he could follow the court’s
instructions. This “rehabilitation” in no way alleviated the juror’s original prejudicial
mindset that LeCou committed the crimes and that he would not accept evidence from him
otherwise. This “rehabilitation” did not result in the juror unequivocally expressing an
1
Here, in this triple homicide where the jury returned a guilty verdict in only a couple hours, this
unnecessary appeal risk could have easily been eliminated by adhering to a presumption of recusal
and summoning a few extra jurors.
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ability to set aside his set belief or bias toward guilt and make a determination of guilt
based solely on the evidence presented at trial.
¶26 Given the heightened right to a fair trial, the emotionally charged nature of a triple
homicide, and the juror’s expression of both a preconceived notion that LeCou should
testify and his unwillingness to accept anything other than an a full admission from LeCou,
I believe our prior holdings to err on the side of recusal are implicated. Further, the
presumption was not overcome with the juror’s unequivocal expression of an ability to set
aside his fixed mindsets through open-discussion and not leading questions followed by
monosyllabic responses. Thus, in this case, I would conclude the District Court abused its
discretion in failing to dismiss the subject juror for cause.
¶27 Frequently, for-cause challenge appeals involve jurors expressing an expectation or
fixed belief the defendant should testify and tell his or her version of events to prove she
or he did not commit the offense. This expectation generally comes from a lack of
understanding of the law as to the State’s burden of proof, as well as a lack of understanding
of the defendant’s constitutional right not to testify or present evidence. To avoid these
juror misconceptions, I again encourage district courts to better educate jurors at the outset
of trial before voir dire as to what is going to happen, how voir dire works, its purpose, the
State’s burden of proof, and the defendant’s absolute right not to testify or present
evidence. Having some information as to these concepts in advance may better assist jurors
in understanding the voir dire process and in responding to counsels’ questions.
/S/ INGRID GUSTAFSON
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Justices Dirk Sandefur and Laurie McKinnon join in the dissenting Opinion of Justice
Gustafson.
/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON
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