State v. Northcutt

State v. Northcutt, 2015 MT 267 (Sept. 8, 2015) (Baker, J.; McKinnon, J., concurring) (7-0, aff’d)

Issue: Whether the district court violated Northcutt’s right to be present and right to a public trial by asking the jury about the status of its deliberations without the defendant and the public present.

Short Answer: No.


Facts: The state charged Northcutt with three counts of assaulting a peace officer and one count of aggravated animal cruelty. On the third day of trial, the jury began deliberating around 4:30 p.m. At around 5:30 p.m., the jury sent a note to the court asking to see one of the demonstrative exhibits, which the court and the parties agreed to supply. The jury sent a second note around 7:30 p.m. asking for a copy of the trial transcript, and the court sent a note back saying it could not oblige that request. At about 8:30 p.m., the jury reached a verdict finding Northcutt guilty of three counts of assault on a peace officer and not guilty of aggravated animal cruelty.

At some point between the first note and the verdict, the district court judge approached the jury room and inquired of the jury whether they would reach a verdict that night. The jurors nodded in affirmation. Neither Northcutt, his counsel, the prosecutor or the court reporter were present.

Procedural Posture & Holding: Northcutt timely moved for a new trial based on the judge’s contact with the jury. He submitted affidavits from two jurors, one of whom stated the interaction felt like an instruction to complete out deliberations that evening. The state submitted affidavits from two bailiffs. The district court denied Northcutt’s motion, and he appeals. The Supreme Court affirms.

Reasoning: A reversible violation of a criminal defendant’s right to be present during criminal proceedings occurs when the defendant is excluded from a critical stage of his prosecution, and is prejudiced as a result. Additionally, a criminal defendant has the right to a public trial. The Court reversed a jury verdict after a district judge, without the defendant or his counsel present, entered the jury room during deliberations and no record existed of what transpired, holding that “absent a contemporaneous, personal, knowing, voluntary, intelligent and on-the-record waiver by the defendant, if a judge enters the jury room while the jury is present . . . reversal will be automatic.” Tapson. Here, four witnesses testified as to what occurred, and all were in substantial agreement. Therefore, reversal is not automatic, but depends on the facts in the record and the rights Northcutt asserts.

The district court erred in holding the jurors’ affidavits were inadmissible. M.R. Evid. 606(b)(2).

The Court reaffirms that “the jury room door must remain closed to judges.” Matt, ¶ 16. The interaction between Judge Tucker and the jury was improper, and Northcutt’s right to be present was violated. However, the judge’s interaction with the jury was very brief and the error is not reversible.

The scope, duration and contact of the closure of Northcutt’s trial to the public lead the Court to conclude the closure did not impair the fairness of Northcutt’s trial.

Justice McKinnon’s Concurrence (joined by Justice Rice): Justice McKinnon does not agree “that an ex parte communication between a judge and a jury about what the jury would like for dinner and whether they wished to deliberate into the evening constitutes a critical stage of the proceeding.” ¶ 24. Justice McKinnon asserts that absence from a critical stage of the proceeding is intolerable and reversible error.” ¶ 25. However, she believes the Court must consider not only the stage of the proceedings but what actually occurred, and “[t]o the extent our analysis fails to apply such a framework to a right to presence claim, I disagree.” Id. To the extent the communication between the judge and the jury is administrative, it is not a critical stage of the proceeding, and Northcutt had no right to be present.

Justice McKinnon would not evaluate Northcutt’s right to a public trial claim except to indicate that the right does not extend to allowing members of the public to be present outside the jury room during deliberations.