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Date: 11-20-2020

Case Style:


Case Number: 2020 MT 286N

Judge: James Jeremiah Shea


Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Michael P. Dougherty,
Assistant Attorney General, Helena, Montana

Steven C. Haddon, Jefferson County Attorney, Boulder, Montana

Defendant's Attorney:

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Dillion, MT - Criminal defense lawyer represented defendant Andrew Lewis with appealing from the June 11, 2018 order of the Fifth Judicial District Court, Jefferson County, following his convictions of solicitation of incest and four counts of incest.

The State charged Lewis with one count of solicitation of incest in violation of
§ 45-5-501(1), MCA, and four counts of incest in violation of § 45-5-507, MCA. Lewis
was accused of engaging in sexual contact with his adopted daughter, C.L. in 2015. Lewis
was tried by jury on March 6 through 8, 2018.
¶4 During voir dire, the prosecution asked the jury pool a series of questions regarding
their ability serve as impartial jurors. Among the questions asked, were the following:
[Is there] anyone here that has ever been, number one, a victim of childhood
sexual assault or incest? Number two, has a family member that’s been a
victim of child sexual assault? Number three, been accused of sexual assault
or four, had a family member accused of child sexual assault or incest?
The District Court informed the panel that anyone who wished to discuss these issues
privately could do so. Seven prospective jurors were questioned privately in chambers.
Three prospective jurors were excused without objection.
¶5 Juror G.M. was among the seven questioned in chambers. G.M. told the parties that
his nephew had been accused and convicted of sexually assaulting a minor. When G.M.
was asked if he could be impartial, he responded, “I think I’d be pretty hard to be impartial.”
When the prosecutor asked G.M. if he had a strong feeling that he could not weigh the
evidence, G.M. responded he has not had contact with his nephew in 17 years.
¶6 Defense counsel then inquired:
[DEFENSE COUNSEL]: And you haven’t had any contact with him for 17
years; right?
[G.M.]: That’s correct.
[DEFENSE COUNSEL]: But that experience would in your opinion, cloud
your thinking; is that correct?
[G.M.]: Yes.
[G.M.]: What he was accused of and what he’d done wasn’t right. That
shouldn’t be right no matter what.
[DEFENSE COUNSEL]: I have no further questions, Your Honor.
THE COURT: Okay. So, [G.M.], we’re going to leave you on right now; and
if that changes, we’ll let you know. And we’ll go from there, and I appreciate
your honest answers.
¶7 The jury panel returned after in-chambers voir dire and questioning of the group
continued. Defense counsel acknowledged everyone has certain biases and prejudices and
then asked, “Is there anyone out there . . . who, if somehow traded places right now with
Lewis…would have a problem with sitting in that jury box?” G.M. did not respond to this
question. Neither party moved to excuse G.M. for cause. Lewis’s counsel exercised three
of his six peremptory challenges and did not use a peremptory challenge to remove G.M.
¶8 Lewis requests that we exercise plain error review of his claim, raised for the first
time on appeal, that he was denied his constitutional right to have his case heard by an
impartial jury. The gravamen of his claim is that the District Court erred by failing to
sua sponte dismiss G.M. after Lewis’s defense counsel did not move to have him excused
for cause.
¶9 The plain error doctrine is used sparingly, and only on a case by case basis.
State v. Lawrence, 2016 MT 346, ¶ 6, 386 Mont. 86, 385 P.3d 968. The facts of this case
are that, after voir dire, Lewis’s counsel elected not to challenge G.M. for cause and then
elected not to exercise a peremptory challenge to remove G.M. even though he only
exercised three of his six peremptory challenges. We can only speculate as to Lewis’s
counsel’s motive or strategy for leaving G.M. on the jury; likewise, so could the
District Court. In light of this record, we cannot hold that the District Court committed
plain error by declining to speculate as to Lewis’s counsel’s strategy and sua sponte striking
a juror Lewis’s counsel obviously wanted to remain on the jury.
¶10 For the same reason, we conclude that Lewis’s ineffective assistance of counsel
claim is not susceptible to review on direct appeal. Lewis argues his defense counsel was
ineffective because he failed to adequately question G.M., then waived three of his
peremptory challenges, while allowing G.M. to serve on the jury.
¶11 This Court reviews a claim of ineffective assistance of counsel, which involves
mixed questions of law and fact, under a de novo standard of review. State v. Ward,
2020 MT 36, ¶ 15, 399 Mont. 16, 457 P.3d 955. This Court reviews ineffective assistance
of counsel claims on direct appeal if the claims are based solely on the record. Ward, ¶ 15.
¶12 Non-record-based claims of ineffective assistance of counsel are reviewable only in
a petition for post-conviction relief. State v. Lindberg, 2008 MT 389, ¶ 40, 347 Mont. 76,
196 P.3d 1252. If counsel fails to fully explain why counsel took a particular action, then
the matter is best suited for post-conviction proceedings to further inquire into whether
counsel’s representation was ineffective. Lindberg, ¶ 40. This Court will review
ineffective assistance of counsel claims under a standard of objective, as opposed to
subjective, reasonableness. Lindberg, ¶ 44. Only when the record will fully explain why
counsel took, or failed to take, action in providing a defense for the accused may this Court
review the matter on direct appeal. Lindberg, ¶ 40.
¶13 For reasons not apparent in the record, Lewis’s counsel opted to leave G.M. on the
jury, even though he clearly could have removed him with a peremptory challenge.
Because Lewis’s counsel’s reasoning is not apparent from the record, his
ineffective assistance of counsel claim is not susceptible to review on direct appeal.

Outcome: 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.


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