State v. C. Wellknown

2022 MT 95

Opinion

05/24/2022

DA 20-0379 Case Number: DA 20-0379

IN THE SUPREME COURT OF THE STATE OF MONTANA 2022 MT 95

STATE OF MONTANA,

Plaintiff and Appellee,

v.

CLAYTON LEE WELLKNOWN,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 19-1182 Honorable Donald L. Harris, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Jeavon C. Lang, Assistant Appellate Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

Scott D. Twito, Yellowstone County Attorney, Christopher A. Morris, Deputy County Attorney, Billings, Montana

Submitted on Briefs: March 16, 2022

Decided: May 24, 2022

Filed:

r--6ta•--df __________________________________________ Clerk Justice Jim Rice delivered the Opinion of the Court.

¶1 Clayton Wellknown appeals a judgment and sentence entered by the Thirteenth

Judicial District Court, Yellowstone County, after a jury found him guilty of felony Driving

a Motor Vehicle Under the Influence of Alcohol or Drugs in violation of § 61-8-401, MCA

(2017) (DUI). Wellknown argues his right to equal protection was violated when the

District Court allowed the State to peremptorily strike the only racial minority member of

the venire, and that his right to a fair trial was violated by remarks made by the prosecutor

during closing argument. He also argues the District Court relied on an unconstitutional

prior DUI conviction for enhancement of this DUI conviction to a felony offense. We

consider:

1. Did the District Court violate Wellknown’s right to equal protection by denying his Batson objection to the State’s peremptory challenge?

2. Did the State’s remarks during closing argument violate Wellknown’s right to a fair trial and necessitate plain error review?

3. Did the District Court err when it relied on a prior conviction to support enhancement of Wellknown’s DUI conviction to a felony?

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On September 22, 2019, the Billings Police Department received 911 calls from

multiple citizens regarding a car that was speeding and driving erratically. One of the 911

callers, Ryan Snyder, followed the car to a Double Tree hotel parking lot, and reported the

driver’s location and physical appearance to law enforcement. Officers found the driver as

described, who was Wellknown, in the hotel lobby and arrested him. Wellknown had 2 bloodshot eyes and officers detected the odor of alcohol emanating from him. Officers

located an empty 40 oz. bottle of malt liquor on the driver’s side floorboard of Wellknown’s

vehicle. Wellknown did not speak to police, even to identify himself, and by his silence

refused to perform field sobriety tests or consent to blood alcohol content (BAC) testing.

Police obtained a warrant for a blood draw, indicating Wellknown’s BAC was 0.185, or

more than twice the legal limit of 0.08, approximately one hour after his arrest. Wellknown

was charged with DUI in violation of § 61-8-401, MCA, and, alternately, with a violation

of § 61-8-406, MCA (2017) (“DUI per se”).

¶4 During trial, after the conclusion of voir dire, the State used a peremptory strike to

remove Shan Birdinground from the jury. Defense counsel objected, stating

“[Birdinground] is the only minority on this jury panel.”1 After this objection, the

following exchange occurred:

The Court: Well, I could do an inquiry. . . . [W]hat are the reasons for you to exercise your peremptory against Mr. Birdinground?

The State: Your Honor, Mr. Birdinground was the victim in DC 18-0336. He was stabbed multiple times by his partner, [S. D.]. He refused to cooperate. He would never return our phone calls and was hostile to our office. Because of that, we believe he would be a partial juror towards the State [sic] because he was so hostile to us when he was a victim a year and a half ago. We ended up amending that charge from assault with a weapon to criminal endangerment because of his lack of cooperation.

The Court: All right. So the objection is overruled. And the State –

1 Though the record does not otherwise address the issue, neither party disputes that Birdinground is Native American.

3 The State: Judge, if I could add a second part. He also said he would need to – someone to be 100 percent before he would ever convict, which is not the standard.

Defense Counsel: Also, just to clarify the record, your Honor, there [were] several jurors that made the same comment 100 percent. The State [hasn’t] exercised their peremptory on them at this point.

The Court: We haven’t gotten there yet. They still have some peremptories, right?

Defense Counsel: For the purpose [of] perfecting the record.

The Court: All right. Thank you.

(Emphasis added.) The District Court then continued with the parties’ exercise of

peremptory challenges, allowing Mr. Birdinground to be struck from the jury. No further

record was made on the issue.

¶5 Snyder and another eyewitness testified to Wellknown’s silver Mitsubishi speeding

and then crashing off the side of the road, resulting in a flat tire and damage to the vehicle.

Despite the flat tire, Wellknown was able to maneuver his vehicle back onto the road and

drive for several hundred meters before stopping in the parking lot of a Double Tree hotel.

Snyder followed Wellknown in his own vehicle while remaining on the phone with law

enforcement and testified that Wellknown got out of his vehicle and walked away, then

quickly returned to the vehicle to retrieve a plastic bag and a hat. Wellknown left the hotel

parking lot on foot and headed toward a nearby restaurant, while Snyder followed

Wellknown in his vehicle. When Wellknown noticed Snyder’s lime-green Jeep following

him, he turned back to the hotel, entered the hotel lobby, and leaned up against a trash can.

Snyder testified he lost sight of Wellknown for a few moments until he spotted Wellknown 4 leaning against the trash can, and said he never observed Wellknown drinking. The

responding police officer testified that he arrived at the hotel and found a man matching

the description Snyder provided leaning on a trash can in the hotel lobby, and arrested him.

Despite Wellknown’s refusal to speak, he was identified by identification found on his

person. A warrant was issued for a blood draw, which indicated Wellknown’s 0.185 BAC.

¶6 Wellknown testified in his own defense, and stated that, after picking up a friend

from her job at a fast-food restaurant, he noticed a black SUV behind him and thought he

was being followed. He stated that in his attempt to drive away from this pursuer, the SUV

swerved in front of him, causing him to overcorrect and crash on the side of the road,

popping a tire. Wellknown testified he continued driving to reach an “open area” where

he would be safe from his pursuer and, despite his passenger then jumping out of his

moving vehicle, proceeded to “a safe spot” where there were “people around,” that being

the Double Tree parking lot. Wellknown said he left his vehicle but quickly returned to

get prescription medication and a pint of liquor he kept in his vehicle. Wellknown stated

that he still feared he was being followed, so he headed to a police station on foot, but

turned back to the Double Tree when he got scared. He stated he entered the hotel through

a side door and made his way toward the lobby, which took a few moments. In the time

between entering the hotel and arriving in the lobby—the only time he was not observed

by Snyder—Wellknown claimed he drank a “couple shots” of liquor and ingested the

retrieved medication. He stated he drank a couple more shots, totaling half of the pint

bottle, while standing by the trash can in the lobby. Wellknown stated he disposed of the

5 liquor in the trash can as police approached, and was adamant that the only alcohol he

drank that night was the half pint of liquor consumed after he entered the hotel.

¶7 A toxicologist for the State testified at length. The toxicologist discussed how BAC

is determined from a blood sample, the accuracy of determining BAC from a blood sample,

and the duration of alcohol in the blood. He estimated that a person would need to drink

at least six shots of 40 percent alcohol by volume liquor, or about half a pint, all at once to

reach a BAC of 0.185 within 45 minutes.

¶8 The jury convicted Wellknown of DUI in violation of § 61-8-401, MCA. Because

this was Wellknown’s fourth DUI conviction, it was enhanced to felony offense pursuant

to § 61-8-731, MCA (2017). Prior to sentencing, Wellknown challenged a previous 2007

DUI conviction as unconstitutional, and thus ineligible for enhancement purposes. He

claimed he did not know who his attorney was during the 2007 proceeding, was not given

any documents regarding his case, lost a right to jury trial by a default bench trial

designation, and was convicted in absentia. The District Court found that Wellknown

presented “the barest evidence” of his conviction’s invalidity, but that, based on court

records, Wellknown was represented by counsel authorized to defend him and was

voluntarily absent from the bench trial. The District Court concluded his 2007 conviction

was lawful and sentenced him for felony DUI.

STANDARDS OF REVIEW

¶9 When considering a challenge based upon Batson v. Kentucky, 476 U.S. 79, 106

S. Ct. 1712 (1986), i.e., a challenge claiming that a peremptory strike was used in a

6 discriminatory manner, we “defer to the trial court’s findings of fact unless they are clearly

erroneous, and [] review the trial court’s application of the law de novo.” State v. Warren,

2019 MT 49, ¶ 16, 395 Mont. 15, 439 P.3d 357 (citing State v. Ford, 2001 MT 230, ¶ 7,

306 Mont. 517, 39 P.3d 108).

¶10 We review unpreserved issues alleging violations of fundamental constitutional

rights under the plain error doctrine. State v. Valenzuela, 2021 MT 244, ¶ 7, 405 Mont.

409, 495 P.3d 1061 (citing State v. Barrows, 2018 MT 204, ¶ 8, 392 Mont. 358, 424 P.3d

612). This doctrine is used “sparingly, on a case-by-case basis” in situations “implicating

a defendant’s fundamental constitutional right[s] and when failure to review the alleged

error may result in a manifest miscarriage of justice, leaving unsettled the question of the

fundamental fairness of the proceedings, or compromise the integrity of the judicial

process.” State v. Haithcox, 2019 MT 201, ¶ 23, 397 Mont. 103, 447 P.3d 452 (citing State

v. Aker, 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506).

¶11 Whether a prior conviction can be used for sentence enhancement is reviewed de

novo. State v. Rasmussen, 2017 MT 259, ¶ 10, 389 Mont. 139, 404 P.3d 719 (citing State

v. Maine, 2011 MT 90, ¶ 12, 360 Mont. 182, 255 P.3d 64). “However, in determining

whether a prior conviction is invalid, a district court may first need to make findings of

fact, based on oral and documentary evidence presented by the parties, regarding the

circumstances of that conviction. We will not disturb such findings unless they are clearly

erroneous.” Rasmussen, ¶ 10 (citing Maine, ¶ 12) (internal citation omitted). “[A]

rebuttable presumption of regularity attaches to [a] prior conviction, and we presume that

7 the convicting court complied with the law in all respects.” Rasmussen, ¶ 14 (quoting State

v. Krebs, 2016 MT 288, ¶ 12, 385 Mont. 328, 384 P.3d 98). “[T]he defendant has the

burden to overcome the presumption of regularity by producing affirmative evidence and

persuading the court, by a preponderance of the evidence, that the prior conviction is

constitutionally infirm.” Rasmussen, ¶ 14 (quoting State v. Chaussee, 2011 MT 203, ¶ 13,

361 Mont. 433, 259 P.3d 78).

DISCUSSION

¶12 1. Did the District Court violate Wellknown’s right to equal protection by denying his Batson objection to the State’s peremptory challenge?

¶13 “The use of peremptory challenges to remove prospective jurors on the basis of race

is unconstitutional under the Equal Protection Clause of the United States and Montana

constitutions.” Warren, ¶ 33 (citing U.S. Const. amend. XIV, § 1; Mont. Const. art. II, § 4;

Batson, 476 U.S. at 89, 106 S. Ct. at 1719; State v. Ford, 2001 MT 230, ¶¶ 9-10, 306 Mont.

517, 39 P.3d 108). The alleged racial discrimination must be purposeful, which is

determined by applying a three-part test this Court adopted from Batson. Ford, ¶ 16 (citing

Batson, 476 U.S. at 97-98, 106 S. Ct. at 1723-24). First, the party objecting to the

peremptory strike must make out a prima facie showing of purposeful discrimination.

Warren, ¶ 34 (citing Batson, 476 U.S. at 93, 106 S. Ct. at 1721; Ford, ¶ 16). A prima facie

showing requires a showing that, under the facts of the case, the striking party had a

racially-motivated reason for striking the juror, and the objecting party may provide “any

other relevant facts and circumstance creating an inference that the proponent used the

8 peremptory jury selection practice to exclude members of the jury panel discriminatorily.”

Warren, ¶ 34 (citations omitted).

¶14 Second, if a prima facie showing is made, “the burden of production shifts to the

proponent of the strike to provide a neutral explanation for the strike.” Warren, ¶ 34 (citing

Batson, 476 U.S. at 97, 106 S. Ct. at 1723; Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct.

1364, 1369-70, (1991); Ford, ¶ 16). If discriminatory intent is not inherent in the proffered

explanation, it will be deemed to be race-neutral. Warren, ¶ 34 (citation omitted). The

opponent of the strike “may respond to the proponent’s neutral explanation to demonstrate

the proffered reason is pretextual.” Warren, ¶ 34 (citing Batson, 476 U.S. at 98, 106 S. Ct.

at 1724).

¶15 Finally, the “trial court must determine whether the opponent of the strike has

established purposeful discrimination.” Warren, ¶ 34 (citing Batson, 476 U.S. at 98, 106

S. Ct. at 1724; Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771 (1995)). This

determination lies within the trial court’s fact-finding discretion, and we will not disturb it

absent “exceptional circumstances.” See State v. Miller, 2022 MT 92, ¶ 16, ___ Mont. ___,

___ P.3d ___ (quoting Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1208

(2008); Ford, ¶ 18). “A credible race neutral explanation generally refutes the earlier

inference of purposeful discrimination while an incredible, implausible, fantastic, or

pretextual explanation strengthens and confirms” the initial prima facie showing. Miller,

¶ 16 (citing Snyder, 552 U.S. at 484-85, 128 S. Ct. at 1212). Because a Batson objection

involves a trial court’s detailed analysis of both parties’ arguments and explanations, we

9 “once again” admonish trial courts and attorneys to provide a clear record for appellate

review. Miller, ¶ 13, n.4 (collecting cases).

¶16 While the trial court provided only a truncated Batson analysis, and the attorneys

did not suggest otherwise, we conclude the record provides a sufficient basis for review.

Warren, ¶ 39. Under the first step, the District Court did not explicitly state that

Wellknown made out a prima facie showing of purposeful discrimination, but it is apparent

the court so concluded by moving to the second step and requiring the State to provide its

explanation for the strike. The parties do not disagree that Birdinground was the only

minority member of the jury panel. We held in Warren that the Defendant satisfied his

burden by showing the State had struck “the only Hispanic juror on the panel.” Warren,

¶ 35. Thus, the burden of production shifted to the State to provide a race-neutral

explanation for the strike. Warren, ¶ 35.

¶17 In response, the State offered that Juror Birdinground, a victim in a prior domestic

violence case, had been uncooperative in the prosecution of the offender, and “hostile” to

the county attorney’s office, which resulted in the office resolving the case against the

offender by reducing the charges. Although a race-neutral reason, the State provided no

information that either of the attorneys prosecuting Wellknown were involved in the

prosecution against Birdinground’s attacker, only that it was handled by their office, no

evidence or description of Birdinground’s “hostile” behavior beyond not returning phone

calls, and only a general statement that he had refused to cooperate. When the District

Court began to overrule Wellknown’s objection, the State interrupted the court to offer a

10 further reason for its strike—that during voir dire Birdinground had answered regarding

the burden of proof that he would need to be “100 percent” sure before he could convict

someone, which, as the State stated, “is not the standard.” The defense then offered to

“clarify the record” that other jurors had offered the same comment about the burden of

proof and the State had not struck them “at this point,” but did not otherwise attempt to

directly rebut the State’s explanations as merely pretextual. The District Court stated,

“[w]e haven’t gotten there yet,” and permitted the strike. No further objections were made.

¶18 To the extent the defense was arguing the State’s explanations were pretextual, no

mention was made of the State’s first proffered reason. As to the State’s second reason,

the defense noted only that other jurors who had given the same answer during voir dire

had not been struck “at this point.” Ultimately, the State did strike other jurors who had

provided the same answer—and one such juror before the strike of Birdinground—and it

appears one juror who gave that answer remained on the jury. All considered, this record

is sufficient to support the District Court’s ruling that the State’s race-neutral explanation

was not pretextual. See Warren, ¶ 39 (Court affirmed the district court’s approval of the

State’s race-neutral explanation that it was striking jurors it did not have a chance to

question where the State exercised other peremptory challenges consistent with its

explanation, but one juror not questioned by the State or defense served on the jury.).

11 ¶19 Despite the abridged Batson analysis, the record as a whole is sufficient to conclude

the District Court’s ruling on the objection was not error.2

¶20 2. Did the State’s remarks during closing argument violate Wellknown’s right to a fair trial and necessitate plain error review?

¶21 Wellknown argues that comments by the prosecutor during closing argument

violated his right to a fair trial. Because Wellknown did not object, the issue must qualify

for review under the plain error doctrine. See Valenzuela, ¶ 7 (“Unpreserved issues

alleging violations of fundamental constitutional right are reviewable under the common

law plain error doctrine.”).

¶22 “The right to a fair trial by jury is guaranteed by the Sixth Amendment to the United

States Constitution and by Article II, Section 24, of the Montana Constitution.” State v.

Smith, 2021 MT 148, ¶ 42, 404 Mont. 245, 488 P.3d 531 (citing Aker, ¶ 24). A conviction

is subject to reversal when a prosecutor’s conduct “deprives the defendant of a fair and

impartial trial.” Smith, ¶ 42 (quoting Aker, ¶ 24). “We review alleged improper statements

during a closing argument in the context of the entire argument; we do not presume

prejudice from the alleged misconduct, and the burden is on the defendant to show the

argument violated his substantial rights.” Smith, ¶ 42 (citing Aker, ¶ 24). “A fundamental

principle of our criminal justice system is that the State prove every element of a charged

2 Wellknown’s appellate argument urges the Court to construe the dignity and trial clauses of the Montana Constitution to more broadly prohibit peremptory strikes that are the product of “unconscious bias.” However, as the State argues, this alternative analytical framework was not offered in the District Court and preserved for appeal, and we conclude it is unnecessary that we reach the issue here in order to prevent a miscarriage of justice or ensure the fundamental fairness of this proceeding.

12 offense beyond a reasonable doubt.” State v. Favel, 2015 MT 336, ¶ 25, 381 Mont. 472,

362 P.3d 1126 (quoting State v. Daniels, 2011 MT 278, ¶ 33, 362 Mont. 426, 265 P.3d

623). To that end, the Due Process Clause requires a conviction to be based upon “proof

beyond a reasonable doubt of every fact necessary to constitute the [charged] crime.”

Favel, ¶ 25 (quoting In re Winship, 397 U.S. 358, 363-64, 90 S. Ct. 1068, 1072-73 (1970)).

¶23 Wellknown contends the prosecutor “harped” on or over-emphasized his refusal to

perform field sobriety tests by stating Wellknown “was given every opportunity to perform

field sobriety maneuvers to communicate with [law enforcement] to show that he is not

[under the influence of alcohol],” and that Wellknown “chose not to do those. He chose

not to show the officers that he was not under the influence.” Wellknown argues these

comments shifted the presumption of innocence and implied Wellknown had an obligation

to exonerate himself. He compares these comments to those in State v. Favel, where the

prosecutor argued the defendant could have “proven her innocence” by submitting to a

breath test during a DUI investigation. Favel, ¶ 26. This Court concluded the comments

were improper because they conveyed “that if Favel were innocent she would have proven

her innocence by submitting to a breath test.” Favel, ¶ 26.3

3 The comments made by the prosecutor in Favel were an apparent attempt to reinforce to the jury that, pursuant to § 61-8-404(2), MCA (2011), the jury could infer from the defendant’s refusal to take a breath test that she was intoxicated. Favel, ¶ 26. Here, soon after making the comments regarding the standardized field sobriety tests, the prosecutor also mentioned Wellknown’s refusal to take a breath or blood test and the inference the jury could draw from that refusal, pursuant to § 61-8-404(2), MCA. Contrary to the State’s position, Wellknown is not arguing here that the prosecutor’s comments regarding the § 61-8-404(2), MCA, inference were improper, but that the comments regarding Wellknown’s refusal to perform field sobriety tests on their own improperly shifted the burden of proof. The language of § 61-8-404(2), MCA, permits the inference of intoxication to extend only to breath or blood tests refused pursuant to § 61-8-402, MCA. 13 ¶24 The State responds that, unlike in Favel, the prosecutor here did not use the term

“innocence,” and did not argue Wellknown was guilty because he “could have proven” his

innocence. However, we conclude the State’s distinction is unpersuasive. Despite not

using the term “innocence,” the prosecutor substituted an element of the charged crime

“under the influence”—for that concept, and implied that the onus was on Wellknown to

demonstrate he was not under the influence of alcohol. While not identical to the

prosecutor’s remarks in Favel, the remarks here were similarly improper, because “the risk

is simply too great that the State’s burden of proof in the mind of a juror will be diminished

by the repeated use of burden of proof language—such as demonstrate, show, and prove—

in reference to what the defendant could have done.” Favel, ¶ 26 (emphasis added).

¶25 However, as in Favel, we conclude the comments do not rise to a level necessitating

plain error review. The District Court correctly instructed the jury on the burden of proof,

and we presume the jury followed the instructions. Smith, ¶ 49 (citing State v. Ariegwe,

2007 MT 204, ¶ 168, 338 Mont. 442, 167 P.3d 815). The State introduced evidence

demonstrating Wellknown’s BAC was more than twice the legal limit an hour after his

arrest, that an empty bottle of malt liquor was found by his vehicle’s driver’s seat, and that

multiple witnesses saw Wellknown driving in a dangerous and erratic manner immediately

before his arrest. Wellknown has not demonstrated that failure to exercise plain error

review will “result in a manifest miscarriage of justice, leave unsettled the fundamental

fairness of [the] trial, or comprise the integrity of the judicial process.” Favel, ¶ 29.

14 ¶26 Wellknown next argues the prosecutor’s comments on reasonable doubt misstated

the law by utilizing “disfavored” formulations. Wellknown points to the following

statement the prosecutor made during his rebuttal:

Hopefully none of you have had to make a decision to have a loved one[’s] limb removed. Pretty rare, isn’t it? How about the decision to terminate someone’s life? It happens. So[me] of us have made that. But, again, rare. Doesn’t say that is the standard. What it says most important of your affairs.

What big decision have you made in life? Depending on where you are in life, if you are 19 years old, it is possible which college to go to. That is a pretty big decision. If you are a little older, might be to get married. Who are you going to settle down with? Little older, it could be kids, jobs. Major decisions.

All of you have made those decisions and you typically make them every year. This is not pulling off life support. It is most important of your affairs. What are the important things in your life? What decisions have you made? That’s what you look at.

¶27 The jury instructions, which are not challenged, defined reasonable doubt as “proof

of such a convincing character that a reasonable person would rely and act upon in the most

important of his or her own affairs.” The prosecutor’s analogies were made in rebuttal

after defense counsel had cited the reasonable doubt instruction and similarly analogized,

both in voir dire and again in closing argument, to the certainty one would need to decide

to amputate a loved one’s limb or make some other major life decision. Thus, the

prosecutor was arguing an analogy first offered by the defense. The prosecutor’s

comments were at times unclear, but did not misstate the law. Wellknown’s authority for

“disfavored” allegories is thin, and has failed to demonstrate that the Court’s failure to

exercise plain error review here would result in “a manifest miscarriage of justice, leaving

15 unsettled the question of the fundamental fairness of the proceedings, or compromise the

integrity of the judicial process.” Haithcox, ¶ 23.

¶28 Finally, Wellknown argues the prosecutor’s closing argument invaded the province

of the jury by vouching for the credibility of Witness Snyder by stating Snyder “[d]oesn’t

know any of these people. Got drug out of work to come here and test[ify]. No bias. No

motive. And no prejudice of any kind,” and by expressing his personal belief that

Wellknown was guilty by stating “that [is] what he is.”

¶29 The prosecutor’s comments about Snyder’s lack of bias were made in the context

of discussing the jury’s duty to determine witness credibility. Immediately prior to this

comment, the prosecutor stated: “You get to look as jurors at what motive someone has,

their bias or their specific prejudice in a case. You get to consider that . . . . Pause for a

second, think about who has any of that in this case. Let’s start with [Snyder].” In the

context of the argument, the prosecutor was referencing permissible inferences of bias, or

lack thereof, that the jury could draw from the testimony. A prosecutor properly may

comment on such inferences. See Smith, ¶ 47 (citing State v. McDonald, 2013 MT 97,

¶ 14, 369 Mont. 483, 299 P.3d 799).

¶30 The “that [is] what he is” comment was in reference to Wellknown’s alleged guilt

of either one of the charges presented to the jury, DUI and DUI per se, and how the jury

could convict him of one or the other, but not both. The statement was made at the

conclusion of the prosecutor’s argument, after arguing why the evidence supported a guilty

verdict. Unlike in State v. Gladue, 1999 MT 1, 293 Mont. 1, 972 P.2d 827, where the

16 prosecutor offered his personal opinion about the defendant’s guilt by stating, “It’s my job

to evaluate cases and decide which ones will fly and which ones won’t. This one flies . . .

more than most cases we bring,” the prosecutor’s statement here did not offer his personal

opinion of guilt, or an argument based on his personal authority. See Gladue, ¶¶ 20-22.

Read in context, this is a proper comment on the “inferences the jury should draw from the

evidence”—here, the inference of guilt. See Smith, ¶ 47 (citation omitted).

¶31 Wellknown argues the totality of these alleged errors warrants reversal under the

cumulative error doctrine, under which a conviction may be reversed “where numerous

errors, when taken together, have prejudiced the defendant’s right to a fair trial.” State v.

Cunningham, 2018 MT 56, ¶ 32, 390 Mont. 408, 414 P.3d 289 (quoting State v. Hardman,

2012 MT 70, ¶ 35, 364 Mont. 361, 276 P.3d 839). Having found error in only one of the

prosecutor’s remarks, cumulative error does not require reversal. See Hardman, ¶ 35.

¶32 3. Did the District Court err when it relied on a prior conviction to support enhancement of Wellknown’s DUI conviction to a felony?

¶33 Wellknown argues the District Court erred by ruling his 2007 DUI conviction was

not constitutionally infirm for purposes of enhancement of his current conviction. “A

constitutionally infirm prior conviction used for enhancement purposes constitutes

‘misinformation of constitutional magnitude’” by violating the defendant’s right to due

process. Maine, ¶ 28 (quoting United States v. Tucker, 404 U.S. 443, 447, 92 S. Ct. 589,

592 (1972); citing State v. Phillips, 2007 MT 117, ¶ 17, 337 Mont. 248, 159 P.3d 1078;

Mont. Const. art. II, § 17). This Court employs the following framework to determine

whether a prior conviction may be used to enhance punishment on a current charge: 17 (1) a rebuttable presumption of regularity attaches to the prior conviction, (2) the defendant has the initial burden to produce direct evidence that the prior conviction is invalid, and (3) once the defendant has made this showing, the burden shifts to the State to produce direct evidence and prove by a preponderance of the evidence that the prior conviction was not entered in violation of the defendant’s rights.[4]

Maine, ¶ 13 (citing State v. Okland, 283 Mont. 10, 18, 941 P.2d 431, 436 (1997)). The

defendant’s burden to demonstrate a prior conviction’s invalidity is a “heavy” one which

must be met “with affirmative evidence.” Maine, ¶ 17. “[T]o meet his or her burden of

proof, the defendant may not simply point to an ambiguous or silent record, but must come

forward with affirmative evidence . . . [s]elf-serving statements by the defendant that his

or her conviction is infirm are insufficient to overcome the presumption of regularity.”

Maine, ¶ 34.

¶34 Wellknown challenges his 2007 DUI conviction as infirm because the Justice Court

“imposed a forced waiver” of his right to a jury trial in that case by using a stock form

addressing dates for the omnibus hearing and trial that “automatically” set the case for

bench trial and placed a burden upon Wellknown to request a jury trial. The form, entitled

“Order Setting Conditions of Bond, Omnibus Hearing and Trial” (Omnibus Order), advised

Wellknown that attendance at the omnibus hearing and trial were mandatory and that he

may demand a jury trial at the omnibus hearing. In the meantime, the Omnibus Order set

4 Despite referencing this standard in his briefing, at various points Wellknown argues that “[t]he burden shifted to the State to prove that the conviction was valid” and “[t]he State failed to provide evidence to prove the conviction was validly obtained.” However, this Court clarified in Maine that the ultimate burden of proof remains with the defendant, who must “prove by a preponderance of the evidence that the conviction is invalid.” Maine, ¶ 34. “The burden is not on the State to prove by a preponderance of the evidence the conviction is valid.” Maine, ¶ 34.

18 a bench trial and advised Wellknown that it would be conducted in his absence if he failed

to appear for trial. Wellknown claims he was never given a copy of the Omnibus Order,

or any other court document, after he was released from jail, and was never mailed any

document in his case. Wellknown claims he never met with his public defender and did

not know the date of his bench trial. Thus, Wellknown argues that when he subsequently

failed to appear for his trial, the public defender had no authority to proceed with the bench

trial in his absence.

¶35 After Wellknown testified at the sentencing hearing, the State introduced documents

relating to his 2007 DUI case, including the Omnibus Order and Sentence. Ruling from

the bench, the District Court concluded that Wellknown’s testimony—including that he

had little recollection of what happened in 2007 and did not remember meeting his

appointed counsel—“barely” established evidence of invalidity. On the whole record, the

District Court found from the Justice Court records, including bench notes, that Wellknown

had counsel present who was authorized to proceed in Wellknown’s absence. The District

Court concluded that Wellknown was asking the court to “speculat[e] . . . that the public

defender would not have done what any competent public defender would have done at the

time had he lost all contact with the Defendant . . . [and] ask for a continuance.”

¶36 Regarding Wellknown’s knowledge of the trial date, the District Court stated it had

“no reason to believe that based upon this record [Wellknown] didn’t have knowledge of

the omnibus hearing and trial date” because the Omnibus Order—which Wellknown

19 signed—informed him the trial was set for June 12, 2007.5 The Omnibus Order likewise

informed Wellknown of his right to a jury trial: “The defendant may demand a jury trial.

Trial will be held in absence of defendant upon defendant’s failure to appear for trial” and,

just above the signature line, Wellknown acknowledged: “I understand that my attendance

at the omnibus hearing and trial is mandatory. I understand my right to a jury trial. I will

make a timely demand for a jury trial.” Based on the certified court records, and that

Wellknown’s arguments almost wholly stem from ambiguities or silence in the record, we

conclude the District Court’s findings regarding Wellknown’s 2007 conviction are not

clearly erroneous, Rasmussen, ¶ 10, and conclude the District Court correctly determined

that Wellknown’s 2007 DUI conviction was constitutionally valid.6

¶37 Affirmed.

/S/ JIM RICE

We concur:

/S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ INGRID GUSTAFSON

5 Wellknown argues the hand-written trial date is illegible and could be read as June 12, 17, or 19. However, not only was this argument not made during the sentencing hearing, but the record reflects that, on cross-examination, Wellknown acknowledged the Omnibus Order states the trial was set for June 12, 2007. 6 Wellknown also argues that § 46-16-122, MCA, does not adequately safeguard a defendant’s right to be present at trial and is therefore unconstitutional as applied to stacking misdemeanors that could result in a felony conviction. This argument is presented for the first time on appeal; we therefore decline to address it. See State v. Strizich, 2021 MT 306, ¶ 32, 406 Mont. 391, 499 P.3d 575.

20 Justice Beth Baker, concurring.

¶38 I agree that Wellknown’s Batson claim must fail under our existing analytical

framework for reviewing such challenges. I write separately, however, because I agree

with Wellknown’s argument that the Montana Constitution should afford greater protection

against discriminatory peremptory challenges. In my view, we should revisit Montana’s

approach to equal protection in the jury selection context, consistent with the Montana

Constitution and with society’s improved understanding of implicit bias.

¶39 Article II, Section 26, of the Montana Constitution provides: “The dignity of the

human being is inviolable. No person shall be denied the equal protection of the laws.”

Our “Equal Protection Clause ‘provides even more individual protection than the Equal

Protection Clause in the Fourteenth Amendment of the United States Constitution.’”

A.W.S. v. A.W., 2014 MT 322, ¶ 11, 377 Mont. 234, 339 P.3d 414 (quoting Snetsinger v.

Mont. Univ. Sys., 2004 MT 390, ¶ 15, 325 Mont. 148, 104 P.3d 445); Ferrier v. Teacher’s

Ret. Bd., 2005 MT 229, ¶ 14, 328 Mont. 375, 120 P.3d 390 (citing Cottrill v. Cottrill

Sodding Serv., 229 Mont. 40, 42, 744 P.2d 895, 897 (1987)). And we have read the Dignity

Clause together with other fundamental rights to provide Montana citizens with greater

protections than what the federal constitution guarantees. See Wilson v. State,

2010 MT 278, ¶ 31, 358 Mont. 438, 249 P.3d 28; Walker v. State, 2003 MT 134, ¶ 73,

316 Mont. 103, 68 P.3d 872.

¶40 Montana’s Equal Protection and Dignity Clauses provide bases for strengthening

Montana’s Batson framework. The 1972 Constitutional Convention transcripts 21 demonstrate the link between these two clauses: “The intent of Section 4 is simply to

provide that every individual in the State of Montana, as a citizen of this state, may pursue

his inalienable rights without having any shadows cast upon his dignity through

unwarranted discrimination.” 5 Mont. Constitutional Convention Transcripts 1642 (1972).

The Constitutional Convention Commission’s Bill of Rights Study indicates that “dignity,”

in the context of the Montana Constitution, refers to the “inalienable rights [ ]that inhere in

individual persons as a matter of moral right prior to the formation of a state, and may not,

therefore, be taken away by the state[.]” Matthew O. Clifford, Thomas P. Huff, Some

Thoughts on the Meaning and Scope of the Montana Constitution’s “Dignity” Clause with

Possible Applications, 61 Mont. L. Rev. 301, 318 (2000) [hereinafter Meaning and Scope].

¶41 But the study suggested another conception of dignity as well. The study

specifically noted that the State could “go beyond the federal Fourteenth Amendment.”

Meaning and Scope, 61 Mont. L. Rev. at 320. It pointed to “the lack of strong federal

enforcement of civil rights and the need for protection against discrimination

for . . . [among other persons] Native Americans.” Meaning and Scope, 61 Mont. L. Rev.

at 320. “[T]his part of the Commission’s study,” Clifford and Huff argue, “suggests . . . a

concern for harms to dignity associated with the distinctive forms of degrading,

discriminatory treatment suffered by [women, disabled persons, and Native Americans].”

Meaning and Scope, 61 Mont. L. Rev. at 320.

¶42 “[A] person’s dignity vitally depends on recognition by others in the political and

social community.” Neomi Rao, Three Concepts of Dignity in Constitutional Law, 22 86 Notre Dame L. Rev. 183, 248 (2011) [hereinafter Three Concepts of Dignity]. When

considering dignity in the context of racial equality issues,

this dignity may rest upon the intrinsic worth of the individual, the idea that each person must be treated as an individual, rather than as a member of a group based on immutable characteristics such as race or gender. Racial equality cases, however, also sometimes focus on the dignity of recognition, on the necessity of full inclusion in the social and political community.

Three Concepts of Dignity, 86 Notre Dame L. Rev. at 262. The Constitutional

Convention’s Bill of Rights Study echoed this concept when it stated: “It can be argued

that Montana, with a significant and, culturally speaking, priceless minority population, is

especially suited to the adoption of strong anti-discrimination provisions enforceable by

those affected.” Meaning and Scope, 61 Mont. L. Rev. at 320 (quoting Montana

Constitutional Convention 1971-1972, Study No. 10: Bill of Rights, at 312).

¶43 This recognition of difference, of acceptance into the social and political

community, is at the core of equal protection in the jury selection context. “The very idea

of a jury is a body composed of the peers or equals of the person whose rights it is selected

or summoned to determine; that is, of . . . persons having the same legal status in society

as that which he holds.” Batson, 476 U.S. at 86, 106 S. Ct. at 1717 (internal ellipses

omitted). Discriminatory jury selection harms not only the defendant in a criminal

proceeding—it also harms the excluded juror and the entire community. Batson, 476 U.S.

at 87, 106 S. Ct. at 1718. When a lawyer strikes a juror on account of the juror’s race, it

sends a message to the defendant, the juror, and everyone else who identifies with the race

of the excluded juror, that they are not accepted into the political community. See also 23 State v. Miller, 2022 MT 92, ¶ 46, 408 Mont. 316, ___ P.3d ___ (McKinnon, J., concurring)

(noting that when jurors are “singled out by the color of their skin” it is “an assertion of

their inferiority and a stimulant to . . . race prejudice”) (quoting Strauder v. West Virginia,

100 U.S. 303, 308 (1879)). Discrimination in the jury selection process, therefore,

constitutes a dignitary harm. See also North Carolina v. Clegg, 867 S.E.2d 885, 915

(N.C. 2022) (Earls, J., concurring) (“When racial bias infects jury selection, it is an affront

to individual dignity and removes important voices from the justice system.”). Given our

recognition of the greater protections Montanans have under the state constitution’s

Dignity and Equal Protection Clauses, I would suggest that the Montana Constitution

affords greater protection against discriminatory peremptory challenges than what the

traditional Batson analysis offers.

¶44 Many judicial and academic commentators agree that the Batson framework fails to

remedy the discriminatory use of peremptory challenges.1 Because Batson prohibits only

1 Miller-El v. Dretke, 545 U.S. 231, 270, 125 S. Ct. 2317, 2342 (2005) (Breyer, J., concurring) (“[T]he use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before.”); Clegg, 867 S.E.2d at 917 (Earls, J., concurring); Utah v. Aziakanou, 498 P.3d 391, 406-07 (Utah 2021); New Jersey v. Andujar, 254 A.3d 606, 622-23 (N.J. 2021); Connecticut v. Holmes, 221 A.3d 407, 429 (Conn. 2019); Washington v. Jefferson, 429 P.3d 467, 475 (Wash. 2018); see also Annie Sloan, “What to do About Batson?” Using a Court Rule to Address Implicit Bias in Jury Selection, 108 Calif. L. Rev. 233, 235 (2020); Jonathan Abel, Batson’s Appellate Appeal and Trial Tribulations, 118 Colum. L. Rev. 713, 717 (2018); Jeffrey Bellin & Junichi P. Semitsu, Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075, 1093 (2011); Judge Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 150 (2010); Antony Page, Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 179-80 (2005); David C. Baldus et al., The Use of Peremptory Challenges in Capital Murder Trials: A Legal and 24 purposeful discrimination, (1) it fails to account for instances of implicit bias, which are

not necessarily “purposeful”; and (2) a party easily may articulate a race-neutral

justification for exercising a peremptory strike, even when the discrimination is purposeful.

See Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 1866 (1991) (“Unless a

discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be

deemed race-neutral.”); Batson, 476 U.S. at 93, 106 S. Ct. at 1721; Jefferson, 429 P.3d at

476. It is, therefore, very difficult for a criminal defendant to prove that an exercise of a

peremptory challenge violated the defendant’s equal protection guarantee, despite studies

indicating that discrimination continues to taint the jury selection process. See Race and

the Jury: Illegal Discrimination in Jury Selection, Equal Justice Initiative 41 (2021).2

Wellknown points out that this disparity may be particularly problematic in Montana,

considering the disproportionate rate of Native American incarceration. See generally

A Brief from the Montana Advisory Committee, Bordertown Discrimination in Montana

(2019).3

Empirical Analysis, 3 U. Pa. J. Const. L. 3, 54 (2001); Leonard L. Cavise, The Batson Failure to Meet the Challenge of Discrimination in Jury Selection, 1999 Wis. L. Rev. 501, 501 (1999); Andrew G. Gordon, Beyond Batson v. Kentucky: A Proposed Ethical Rule Prohibiting Racial Discrimination in Jury Selection, 62 Fordham L. Rev. 685, 693-94 (1993); Karen M. Bray, Reaching the Final Chapter in the Story of Peremptory Challenges, 40 UCLA L. Rev. 517, 543-44 (1992). 2 Available at https://perma.cc/5F7M-E6K4. 3 Available at https://perma.cc/GKG9-L6FQ. 25 ¶45 States have “flexibility in formulating appropriate procedures to comply with

Batson.” Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2410, 2416 (2005). To

ensure the guarantee of equal protection, some states have responded to Batson’s

shortcomings with court rules or by offering greater protection under state constitutions.

See, e.g., Cal. Civ. Proc. Code § 231.7 (2022) (“The court need not find purposeful

discrimination”); Order Amending Rules 18.4 and 18.5 of the Rules of Criminal Procedure,

and Rule 47(e) of the Rules of Civil Procedure, No. R-21-0020 (Ariz. Aug. 30, 2021)

(Arizona Supreme Court order eliminating peremptory challenges in civil and criminal

trials); Assemb. 8010, 244th Annual Leg. Sess. (N.Y. 2021) (referred to Senate Codes

Committee, proposing to abolish peremptory challenges in criminal cases); Wash. G. R. 37

(Washington court rule adopted in 2018 eliminating the requirement of “purposeful

discrimination”); Andujar, 254 A.3d at 620-21, 630 (considering implicit bias as part of

the Batson framework under the New Jersey constitution); Aziakanou, 498 P.3d at 407 n.12

(referring the issue to the advisory committee on the rules of criminal procedure);

Washington v. Hicks, 181 P.3d 831, 838-39 (Wash. 2008) (concluding that, under the

Washington Constitution, a trial judge has discretion to find a prima facie case of

discrimination when the State removes the sole venire person from a constitutionally

cognizable group).

¶46 Under Washington’s peremptory challenge court rule, a party may object to the use

of a peremptory challenge for improper bias, or the court may raise the objection

sua sponte. Wash. G. R. 37(c). The party exercising the peremptory challenge bears the 26 burden to articulate the reasons for exercising it. Wash. G. R. 37(d). The court then must

evaluate the proffered reasons in light of the totality of circumstances and determine

whether a “reasonable observer could view race or ethnicity as a factor in the use of the

peremptory challenge.” Wash. G. R. 37(e). The rule explains that a “reasonable observer”

is someone who “is aware that implicit, institutional, and unconscious biases . . . have

resulted in the unfair exclusion of potential jurors in Washington State.” Wash. G. R. 37(f).

The rule also provides a list of factors to help courts make the determination; these factors

include, for example, “whether a reason might be disproportionately associated with a race

or ethnicity.” Wash. G. R. 37(g)(iv). Several reasons are presumptively invalid under the

rule, such as “having prior contact with law enforcement” and “expressing a distrust of law

enforcement or expressing a belief that law enforcement officers engage in racial

profiling.” Wash. G. R. 37(h)(i)-(ii).

¶47 Several additional state supreme courts have tasked advisory committees with

recommending amendments to court rules regarding peremptory challenges, and many of

them already have recommended court rules similar to Washington’s Rule 37. See, e.g.,

New Jersey Judicial Conference on Jury Selection, Notice Listing the Recommendations &

Requesting Comments 37-38 (Apr. 28, 2022)4 (recommending several jury selection

reforms, including a new court rule that would eliminate the requirement of “purposeful

discrimination”); Sarah Bello, Willamette Law Launches Racial Justice Task Force,

4 Available at https://perma.cc/XLJ6-STUT (last visited May 19, 2022). 27 Willamette University, https://perma.cc/5UGZ-9L7Y (Feb. 16, 2021); North Carolina Task

Force for Racial Equity in Criminal Justice, Report 2020, 102-03 (2020)5 (recommending

an administrative rule change by the North Carolina Supreme Court similar to

Wash. G. R. 37); Connecticut Jury Selection Task Force, Report to Chief Justice Richard

A. Robinson 16-18 (Dec. 31, 2020)6 (recommending a new general rule similar to Wash.

G. R. 37); Governor’s Commission on Racial Equity & Justice, Initial Report: Policing &

Law Enforcement in Kansas (December 2020).7

¶48 In my view, Wellknown’s argument for expanding our Batson framework is

properly before the Court. Application of stare decisis counsels rejecting his argument

here. But I agree that an overhaul of the rule is necessary to achieve the intent of Batson.

See Batson, 476 U.S. at 87-88, 106 S. Ct. at 1718. Similar to the aforementioned states, it

is time for Montana to reconsider its approach to peremptory challenges in light of our state

constitution and the studies regarding Batson’s limitations.8

¶49 I concur in all other aspects of the Court’s Opinion.

/S/ BETH BAKER

5 Available at https://perma.cc/JVR3-XXU6. 6 Available at https://perma.cc/8VJY-46KE. 7 Available at https://perma.cc/N2Q6-WKLY. 8 I would do so by referring the issue to an appropriate commission of this Court for study and recommendation, such as this Court’s existing Criminal Jury Instructions Commission, which includes trial and appellate attorneys who practice criminal law, a law professor who teaches criminal law or criminal procedure, and several district court judges. See Criminal Jury Instructions Commission, Montana Courts, https://perma.cc/C2S7-KEAY (last visited May 6, 2022). 28