STATE v. PETERSON (2024)

¶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 On April 29, 2021, a unanimous jury convicted Justin Peterson of two felony counts, burglary by accountability and conspiracy to commit burglary. Following the trial, the District Court determined, based on § 46-11-410(2)(b), MCA, that Peterson could not be convicted of both the underlying burglary and conspiracy to commit the same offense, and dismissed the conspiracy count. On July 15, 2021, Peterson was sentenced to the Department of Corrections for three years, suspended, for burglary by accountability.

¶3 Peterson appeals, arguing the judge unconstitutionally answered a question from the jury when he was not physically present. We affirm.

¶4 Both the U.S. and Montana Constitutions protect a criminal defendant's right to be present during proceedings against him. U.S. Const. amends. VI, XIV; United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 1484 (1985) (“A defendant has a due process right to be present at a proceeding whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.”) (internal quotation omitted); Mont. Const. art II, § 24; State v. Sinz, 2021 MT 163, ¶ 35, 404 Mont. 498, 490 P.3d 97.

¶5 We exercise plenary review over questions concerning the violation of a criminal defendant's constitutional rights. Sinz, ¶ 20.

¶6 The factual history underlying Peterson's conviction has no bearing on his appeal, thus we recount only the relevant procedural history. During its deliberations, the jury submitted a request to review two written witness statements. The judge summoned counsel, and Peterson's counsel specifically waived Peterson's presence. Counsel stated that one of the requested written statements did not exist, and that the other was not submitted into evidence. Accordingly, the judge advised the jury in writing: “No, [the requested written statements] are not in evidence.”

¶7 Peterson argues his constitutional right to be present was violated because the judge answered the jury in his absence during a critical stage of the proceeding.

¶8 A defendant's right to be present is violated if they are absent from a “critical stage” of the proceedings and the defendant's absence caused them harm. State v. Northcutt, 2015 MT 267, ¶¶ 6, 11, 381 Mont. 81, 358 P.3d 179. Thus, if the error was harmless, we need not determine whether the violation occurred at a “critical stage.” Sinz, ¶ 35. A right to presence error is harmless if “there is no reasonable possibility” that it prejudiced the defendant. Sinz, ¶ 39 (citing Northcutt, ¶ 18).

¶9 Peterson argues that prejudice must be presumed any time a defendant is absent from a critical stage of a proceeding and has not waived the right to be present. Peterson's view, however, does not accord with U.S. Supreme Court precedent or our own. See, e.g., Gagnon, 470 U.S. at 526, 105 S. Ct. at 1484. We have consistently held there is no presumption of prejudice “in those instances where the exclusion of the defendant from the proceedings does not constitute a structural defect.” State v. Charlie, 2010 MT 195, ¶ 45, 357 Mont. 355, 239 P.3d 934. Rather, the State bears a burden of persuasion that the error caused no harm. Charlie, ¶ 45.

¶10 When a judge answers a jury question in the defendant's absence, we will weigh whether the record satisfactorily demonstrates that the judge's answer was correct as a matter of law. Sinz, ¶ 40. We affirmed the district court over a comparable dialogue between judge and jury in Sinz. Sinz, ¶¶ 41, 45. The jury asked whether it was required to reach a unanimous verdict on three lesser offenses before it deliberated over a fourth and fifth. Sinz, ¶ 41. The judge responded that the jury should do its best to reach a unanimous verdict on the lesser offenses, and if that proved untenable, the jury could move on to the fourth and fifth. Sinz, ¶ 42. The judge did not instruct the jury as to the substance of deliberations, but rather to the procedure it was allowed to follow. Sinz, ¶ 42. Like Sinz, there was only one legal response to the juror's inquiry here.

¶11 There is no conceivable way Peterson's presence could have changed the outcome. The statements the jury requested were not in evidence, and the Court had no alternative but to deny the request. Nothing Peterson could have done or said could have influenced that decision. He was not deprived of “the fulness of his opportunity to defend against the charge.” Gagnon, 470 U.S. at 526, 105 S. Ct. at 1484 (internal quotation omitted).

¶12 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.

¶13 Affirmed.

Chief Justice Mike McGrath delivered the Opinion of the Court.

We Concur: JAMES JEREMIAH SHEA, J. LAURIE McKINNON, J. INGRID GUSTAFSON, J. JIM RICE, J.