State v. Wilson, 2013 MT 70 (March 20, 2013) (5-0) (Morris, J.)
Issue: Whether the defendant’s absence from the sidebar conference during jury selection requires reversal of the verdict.
Short Answer: No.
Facts: Wilson was drinking whiskey at a Colstrip bar in December 2009, and started a fistfight with Terran Harris. Jason Burnett, who was with Harris at the bar to celebrate Burnett’s engagement, and whose family owned the bar, ordered Wilson to leave. Wilson left, but returned 30 minutes later with a gun. Heath Becker, another of Burnett’s party, was standing outside alone. Wilson killed Becker with a shot to his head. Spencer Benson, another of Burnett’s friends, was also outside near his car; Wilson killed Benson with a shot to the chest. Wilson went into the bar, walked toward Burnett and his friends, and shot Burnett in the head. He injured Burnett, but did not kill him. Burnett’s friends disarmed Wilson. Wilson was charged with deliberate homicide. The list of potential jurors included several EMTs who had responded to the shooting, many of whom were on the prosecutor’s witness list. The Court discussed this with the parties, and the prosecutor said he no longer anticipated calling any of the EMTs as witnesses. The prosecutor refused to stipulate that the EMTs were unfit for jury service.
Procedural Posture & Holding: The first group of jurors included an EMT, Amanda McCarthy. After she was called, defense counsel requested a sidebar with the juror. The Court held a sidebar with the attorneys, then said, “By stipulation you are excused.” The jury found Wilson guilty of deliberate homicide, attempted deliberate homicide, and negligent homicide. The court sentenced Wilson to 220 years in the Montana State Prison. Wilson appeals, arguing that his absence from the sidebar after which the district court removed McCarthy as a juror violated his fundamental right to be present at all critical stages of the proceedings. The Supreme Court affirms.
Reasoning: A “critical stage” of the proceedings includes any stage “where there is potential for substantial prejudice to the defendant.” ¶ 11. However, the Supreme Court will reverse only if the defendant suffered prejudice from missing a critical stage. Without deciding whether a sidebar conference during voir dire is a critical stage, the Court holds that Wilson was not prejudiced by his absence. Wilson argues that his absence resulted in a structural error, which renders a trial fundamentally unfair. Although Wilson’s attorney requested a sidebar with the potential juror, the transcript reveals that the juror was not present at the sidebar. Thus, this was not voir dire, which is a critical stage. Moreover, McCarthy did not serve as a juror.