Harmlessness of Replaying Testimonial Evidence Absent a “Particularized Need,” and Strict Prerequisites for Structural Error in Jury Selection — Commentary on State v. Purkhiser (Montana Supreme Court)

Harmlessness of Replaying Testimonial Evidence Absent a “Particularized Need,” and Strict Prerequisites for Structural Error in Jury Selection — Commentary on State v. Purkhiser (Montana Supreme Court)

Note: The Court designated this as a memorandum opinion under Section I, Paragraph 3(c) of the Montana Supreme Court’s Internal Operating Rules. It is noncitable and does not serve as precedent. Nonetheless, the decision offers clarifying guidance on two recurring trial issues: (1) jury access to testimonial recordings during deliberations, and (2) preservation and proof of structural error in juror bias challenges.

Introduction

Case overview. In State v. Purkhiser, the Montana Supreme Court affirmed a conviction for tampering with a witness arising out of a domestic incident. The defendant, Walter Jason Purkhiser, was initially charged with misdemeanor Partner or Family Member Assault (PFMA), later amended to a felony. While in jail, he made numerous calls to the complainant (H.S.) urging her to recant and not cooperate. Based on these communications, the State added a witness tampering charge.

Key trial events. During jury selection, a prospective juror (B.H.) disclosed past victimization as a child but stated she could be fair. The defense’s for-cause challenge was denied without prejudice, and counsel neither renewed the challenge nor exercised a peremptory strike; B.H. served. During deliberations, the jury asked to review two items: a transcript of H.S.’s testimony (denied) and the 911 recording (granted for one supervised replay in open court). The jury hung on PFMA but convicted on witness tampering. The court imposed a 10-year prison sentence.

Issues on appeal.

  • Whether the district court abused its discretion by allowing the jury to replay the 911 call during deliberations without first identifying a “particularized need.”
  • Whether the court erred by not excusing juror B.H. for cause, and whether any such error was structural, requiring automatic reversal.

Summary of the Judgment

The Supreme Court affirmed. It held:

  • The 911 call was testimonial in nature, and under State v. Hoover, trial courts must identify a “particularized need” before permitting jurors to rehear testimonial evidence during deliberations. The district court made no express inquiry into particularized need—described as a procedural shortcoming—but any error was harmless under State v. Van Kirk because the 911 call related to the PFMA count (on which the jury hung), not the witness tampering count (on which the jury convicted). The witness tampering evidence was overwhelming and distinct (recorded jail calls plus H.S.’s confirmation), leaving no reasonable probability the replay contributed to the tampering conviction.
  • The denial of the for-cause challenge to juror B.H. was not an abuse of discretion. While B.H.’s responses were mixed, the district court repeatedly confirmed her ability to be impartial, and no actual bias was revealed. Additionally, the claim of structural error failed under State v. Good because the defense did not use a peremptory strike to remove B.H., defeating the second prong of the structural-error test.
  • Any asserted errors were non-prejudicial given the hung PFMA count and the independent strength of the tampering evidence. The conviction was affirmed.

Analysis

Precedents Cited and Their Influence

  • State v. Green, 2022 MT 218 — Establishes that decisions permitting exhibits into jury deliberations are reviewed for abuse of discretion. This frames the standard by which the 911 replay decision is measured.
  • State v. Nordholm, 2019 MT 165 — Recognizes the common-law rule against sending testimonial materials to the jury for unsupervised and unrestricted review to avoid undue weight to a particular witness’s statements. The district court complied with Nordholm by supervising the replay in open court rather than giving the jury unfettered access.
  • State v. Hoover, 2021 MT 276 — Requires a “particularized need” before permitting jurors to rehear testimonial evidence during deliberations. Although the district court did not make express findings of such need, the Supreme Court treated the omission as a procedural shortcoming subject to harmless-error analysis rather than per se reversible error.
  • State v. Van Kirk, 2001 MT 184 — Provides the harmless-error test: an error is harmless if there is no reasonable probability the inadmissible evidence contributed to the conviction. Applied here, the replay affected only PFMA (on which the jury hung) and could not reasonably have affected the tampering verdict, which rested on separate, overwhelming proof.
  • State v. Deveraux, 2022 MT 130 — Guides review of for-cause challenges; an abuse of discretion occurs if voir dire reveals serious doubts about impartiality or actual bias. Also emphasizes that the “lesser-of-two-evils” argument does not replace the requirement to actually use a peremptory strike when asserting structural error.
  • State v. Calahan, 2023 MT 219 — Clarifies that a juror’s personal experiences do not automatically create bias; impartiality is assessed from the totality of circumstances regarding the juror’s state of mind.
  • State v. Morales, 2020 MT 188 — Cautions that one-word responses to leading questions in voir dire may be unreliable indicators of impartiality. The Court relied on this caution but concluded that repeated, non-leading confirmations of impartiality sufficed on this record.
  • State v. Good, 2002 MT 59 — Establishes the three-part structural-error test for juror challenges: (1) abuse of discretion in denying a for-cause challenge; (2) defendant used a peremptory strike to remove the disputed juror; and (3) defendant exhausted all peremptory challenges. Failing the second prong (as here) defeats structural error.
  • Section 46-20-701(1), MCA — A judgment may not be reversed unless the record shows prejudicial error. The Court invoked this statute to reinforce its harmless-error conclusions.

Legal Reasoning

1) Replaying testimonial evidence during deliberations. The Supreme Court agreed that the 911 call was “testimonial,” bringing the Hoover “particularized need” requirement into play. The district court allowed a single replay in open court—consistent with Nordholm’s prohibition on unsupervised juror access—but did not expressly inquire into or find a particularized need as Hoover contemplates. The Supreme Court characterized this as a procedural shortcoming rather than a reversible defect per se, and moved to a Van Kirk harmless-error analysis. Because the 911 call was pertinent to PFMA (the hung count) and unrelated to the witness tampering conviction (which was supported by independently strong evidence—recorded jail calls and corroborating testimony), the omission of an express particularized-need finding was harmless.

2) For-cause challenge to juror and structural error. The Court evaluated the voir dire exchange with juror B.H. through the lenses of Deveraux, Calahan, and Morales. While her initial, somewhat equivocal answers raised concerns, the district court repeatedly confirmed her ability to remain impartial. The record did not reveal actual bias; under the totality of circumstances, there was no abuse of discretion in denying the challenge for cause. More critically, the structural-error claim failed under Good: the defense did not use a peremptory strike to remove B.H., defeating the second prong of the Good test, with the Court further noting that “lesser-of-two-evils” arguments do not substitute for the actual use of a peremptory challenge. Finally, given the hung PFMA count and the weight of the tampering evidence, Section 46-20-701(1), MCA, foreclosed reversal absent prejudice.

Impact and Practical Implications

Although nonprecedential, the decision offers concrete operational guidance for Montana trial practice:

  • For trial courts:
    • When jurors request to rehear testimonial evidence during deliberations, make a clear, on-the-record finding of a “particularized need” as required by Hoover. Tie the finding to juror confusion or a specific evidentiary point, limit the scope of the replay, and supervise it in open court.
    • Continue to avoid sending testimonial materials back to the jury room for unsupervised, unrestricted review (Nordholm).
    • In voir dire, ensure meaningful, non-leading follow-up questions where a juror’s initial answers are equivocal. Seek repeated, clear assurances of impartiality on the record.
  • For defense counsel:
    • To preserve a structural-error claim based on an improperly denied for-cause challenge, you must both use a peremptory strike on the disputed juror and exhaust all peremptory challenges (Good). Absent this, review will be for abuse of discretion with harmless-error overlay.
    • Renew for-cause challenges when additional answers or trial developments warrant it; build a robust record of any lingering bias.
    • On mid-deliberation replay requests of testimonial material, object, insist on a Hoover “particularized need” finding, and request limiting instructions.
  • For prosecutors:
    • When seeking a replay of testimonial evidence, articulate the particularized need: specify the point of confusion and why a replay, in limited and supervised form, will assist the jury.
    • Segregate proof by count where possible; the Court’s harmlessness analysis turned in part on the clean separation between evidence relevant to PFMA (the 911 call) and witness tampering (jail calls and testimony).
  • Broader doctrinal signals:
    • The Court treats a trial court’s failure to make an explicit Hoover finding as subject to harmless-error analysis where the record shows the replay did not affect the conviction actually returned.
    • Equivocal juror responses do not automatically require excusal; repeated, credible assurances can suffice, especially where no actual bias appears and the defense neither renews the challenge nor uses a peremptory strike.

Complex Concepts Simplified

  • Testimonial evidence: Statements made in circumstances where a reasonable person would expect them to be used in prosecution, such as detailed accusations to law enforcement. Here, the 911 call was treated as testimonial.
  • Particularized need (Hoover): A concrete, case-specific reason why jurors must rehear a testimonial statement during deliberations (for example, clarifying a discrete factual point), which the court should articulate on the record before permitting a replay, and which should be carefully limited and supervised.
  • Harmless error (Van Kirk): Even if a mistake occurred, a conviction stands if there is no reasonable probability the error contributed to the guilty verdict.
  • Abuse of discretion: A deferential standard of review; reversal occurs if the trial court acted arbitrarily, unreasonably, or without conscientious judgment resulting in substantial injustice.
  • For-cause challenge: A request to excuse a prospective juror due to bias or inability to be impartial; requires showing actual or probable bias affecting fairness.
  • Peremptory challenge: A limited number of strikes that each party may use to remove a juror without stating a reason (subject to anti-discrimination limits). In Montana, failure to use a peremptory strike on the disputed juror defeats a later claim of structural error based on that juror’s inclusion.
  • Structural error (Good): A rare class of fundamental errors that require automatic reversal. In Montana’s jury-selection context, it arises only if (1) the court wrongly denies a for-cause challenge, (2) the defendant uses a peremptory strike to remove that juror, and (3) the defendant exhausts all peremptory strikes.
  • Section 46-20-701(1), MCA: Appellate reversal is not permitted unless the error was prejudicial to the convicted person, reinforcing Montana’s strong harmless-error doctrine.

Conclusion

State v. Purkhiser affirms a witness tampering conviction while clarifying two recurring trial issues. First, even when a court permits a supervised, in-court replay of testimonial evidence during deliberations, it should make an express “particularized need” finding under Hoover. Omission of that step, however, will be subject to Van Kirk’s harmless-error test—not automatic reversal—especially where the replayed evidence pertains to a count on which the jury did not convict and the conviction is supported by strong, independent evidence.

Second, on juror bias, the decision underscores that mixed or initially equivocal answers do not mandate excusal where the juror repeatedly assures impartiality and the record shows no actual bias. Importantly, claims of structural error are tightly constrained by Good: a defendant who does not use a peremptory strike to remove the disputed juror (and exhaust all peremptories) cannot obtain automatic reversal on structural-error grounds.

While noncitable, Purkhiser is instructive. It encourages trial judges to make explicit, on-the-record findings when allowing deliberation replays of testimonial material and reminds litigants that preservation of structural-error claims in jury selection requires meticulous adherence to peremptory-strike prerequisites. The opinion thus reinforces Montana’s emphasis on supervised evidentiary management during deliberations and the robust application of harmless-error principles to sustain otherwise fair convictions.

Case Details

Year: 2025
Court: Supreme Court of Montana

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