No. 53-347
I N THE SUPREME COURT OF THE STATE O F MONTANA
1934
STATE O F MONTAIJA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
JOHN HARVEY COUNTS, SR.,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e S i x t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of P a r k ,
T h e H o n o r a b l e B y r o n R o b b , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
C o k & Wheat; M i c h a e l D . C o k , B o z e m a n , Montana
F o r Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Wm. N e l s S w a n d a l , C o u n t y A t t o r n e y , L i v i n g s t o n ,
Montana
S u b m i t t e d on B r i e f s : December 8 , 1983
~ e c i d e d : A p r i l 1 9 , 1934
Filed: A W 1 3 1984
Clerk
Mr. J u s t i c e Fred J. Weber d e l i v e r e d t h e Opinion o f t h e C o u r t .
Following a jury t r i a l i n t h e D i s t r i c t Court of Park
County, d e f e n d a n t was c o n v i c t e d o f t h e o f f e n s e s o f a g g r a v a t e d
assault and attempted aggravated assault under sections
45-5-202 (1)( a ) & ( c ) and 45-4-103 (1) w, MCA. He was s e n t e n c e d
t o f i v e y e a r s i n t h e p e n i t e n t i a r y f o r e a c h o f f e n s e . The t e r m s
were t o be s e r v e d c o n c u r r e n t l y w i t h t h e l a s t t h r e e y e a r s o f
each sentence suspended. He was also sentenced to a
c o n s e c u t i v e two-year t e r m f o r t h e u s e o f a f i r e a r m . Defendant
appeals. W e a f f i r m t h e judgment o f t h e D i s t r i c t C o u r t .
The s o l e i s s u e p r e s e n t e d i s whether t h e D i s t r i c t C o u r t
e r r e d i n denying t h e d e f e n d a n t ' s motion f o r a m i s t r i a l o n t h e
grounds o f a juror's communication d u r i n g l u n c h w i t h a key
prosecution witness.
The criminal offenses occurred in Park County a t the
home o f M r s . Girdler. Defendant and h i s nephew were v i s i t i n g
Mrs. Girdler on the morning of September 23, 1982. The
S t a t e ' s e v i d e n c e i s summarized a s f o l l o w s . John Renbourne, a
neighbor of the Girdlers, arrived at the G i r d l e r home to
d e l i v e r some p h o t o g r a p h s . A s Renbourne approached t h e h o u s e ,
he met d e f e n d a n t and h i s nephew. Renbourne e x t e n d e d h i s hand
in greeting t o defendant, but defendant struck Renbourne,
knocked him t o t h e ground and r e p e a t e d l y k i c k e d him. Mrs.
G i r d l e r witnessed the incident. When she screamed, the
defendant ceased t h e kicking. A f t e r Renbourne had gone i n t o
t h e G i r d l e r home t o c l e a n h i s wounds, d e f e n d a n t p u l l e d a gun
o u t o f h i s p o c k e t and p o i n t e d i t a t Renbourne.
Defendant's t e s t i m o n y was c o r r o b o r a t e d by his nephew.
Defendant admitted s t r i k i n g and k i c k i n g Renbourne and a l s o
p u l l i n g h i s gun on Renbourne. He c l a i m e d t h a t t h e s e a c t s
were justified by self-defense. Defendant testified that
Renbourne approached him with a gun, that Renbourne was
f i g h t i n g and k i c k i n g him, and t h a t he p u l l e d t h e gun b e c a u s e
Renbourne s a i d : "Shoot m e , s h o o t me, s h o o t me o r I w i l l k i l l
you. I'
No question is raised as to the sufficiency of the
evidence to convict on both counts charged. The sole issue
pertains to alleged jury misconduct involving Mrs. White, a
juror, and Mrs. Girdler, who testified as a witness for the
prosecution. During the lunch recess on the first day of
trial, juror White and her husband were seated at a
restaurant in Livingston. Mrs. Girdler came in and was
invited by Mrs. White to join them for lunch. They spent
about thirty minutes having lunch. Both Mrs. White and Mrs.
Girdler testified that their conversation did not concern the
defendant or the trial.
Both the District Court and counsel for the defendant
questioned Mrs. White and Mrs. Girdler at length. Because of
the possible appearance of improper conduct, we set forth
significant portions of the examination by the court of juror
White and witness Girdler:
"THE COURT: Mrs. White, it has been mentioned
here that at the last recess just
before noon that someone had seen
one of the lady jurors talking to
Mrs. Girdler as they were leaving.
Do you know Mrs. Girdler?
"MRS. WHITE: Yes.
"THE COURT: Did you speak with her at all here
at the courthouse this morning?
"MRS. WHITE: No.
"THE COURT: No conversation?
"MRS. WHITE: Not today at all. I had a conver-
sation with her yesterday.
"THE COURT: Did that in any way concern the
case?
"MRS. WHITE: No, never mentioned it.
"THE COURT: Where did that conversation take
place?
"MRS. WHITE: At the restaurant yesterday noon.
She came in while we were eating
and sat with us.
"THE COURT: And was there any mention on
anyone's part about the case?
"MRS. WHITE: No.
"THE COURT: And was it just a chance meeting
that she happened to come in the
same restaurant?
''MRS. WHITE: We were sitting there and she just
come in and we asked her to sit
with us. I didn't know that you
can't talk. We didn't talk any-
thing about the case at all.
"THE COURT: That is what we want to make
certain. And you haven ' t formed
any opinion in any way just from
having lunch with her, have you?
"MRS. WHITE: No, nothing.
"THE COURT: Did you know Mrs. Girdler prior?
"MRS. WHITE: I have known her since she was a
little girl, sure. Not, you know,
not real well, just known her.
"THE COURT: I want to make it just as clear,
Mrs. White, the meeting yesterda.~
was just by chance and there was
absolutely no mention whatever of
this case?
"MRS. WHITE: No. I can't even remember what
we talked about.
"THE COURT: And none of the testimony and none
of the witnesses were mentioned or
discussed?
"MRS. WHITE: No.
"THE COURT: The defendant, Mr. Counts' name,
didn't come up at all?
"MRS. WHITE: No."
The testimony by the witness, Mrs. Girdler included the
following:
"THE COURT: It was also mentioned that yester-
day you met or saw Mrs. White at
lunch time?
"MRS. GIRDLER: I did.
"THE COURT: Where wa-s that?
"MRS. GIRDLER: At the restaurant, Windy's
Restaurant.
"THE COURT: At Windy's?
"MRS. GIRDLER: Yes.
"THE COURT: Did you sit down at lunch time?
"MRS. GIRDLER: We sat down at lunch time.
"THE COURT: Were there others present?
"MRS. GIRDLER: H e r husband.
"THE COURT: J u s t t h e t h r e e of y o u ?
"MRS. GIRDLER: Yes.
"THE COURT: A n d h o w l o n g w e r e you t o g e t h e r
a t that time?
"MRS. GIRDLER: W e l l , w e a t e lunch, a p p r o x i m a t e l y
3 0 m i n u t e s , because I had s o m e o t h e r
e r r a n d s t o do a n d I had t o be back
here by t e n t o 1 : O O .
"THE COURT: H o w d i d i t happen t h a t you were
together there a t l u n c h ?
"MRS. GIRDLER: I into the restaurant
walked and
they invited me to join them.
"THE COURT: T h e y w e r e already there?
"MRS. GIRDLER: Yes.
"THE COURT: I t w a s not a planned m e e t i n g ?
"MRS. G I R D L E R : NO.
"THE COURT: H a v e you k n o w n Whites for quite
some time?
"MRS. GIRDLER: A long t i m e . I w e n t t o school w i t h
t h e i r son.
"THE COURT: Now, again w i t h your w i t n e s s ' oath
i n m i n d , Mrs. G i r d l e r , did the
s u b s t a n c e o r f a c t s of t h i s case
a g a i n s t M r . C o u n t s i n any w a y a t a l l
c o m e up f o r d i s c u s s i o n ?
"MRS. GIRDLER: N o , because w h e n w e s a t d o w n w e b o t h
agreed t h e r e w a s no w a y w e w o u l d
d i s c u s s t h e t r i a l , and it w a s a
r e l i e f t o m e t o s i t d o w n and f o r g e t
a b o u t i t . W e d i d n ' t t o u c h it.
"THE COURT: There was absolutely nothing said?
"MRS. GIRDLER: No.
"THE COURT: N o i n d i c a t i o n of h o w you f e l t o r h o w
they f e l t ?
"MRS. GIRDLER: No, no w a y . "
Defense c o u n s e l a l s o i n t e r r o g a t e d t h e w i t n e s s and f a i l e d t o
f i n d any i n d i c a t i o n t h a t t h e luncheon c o n v e r s a . t i o n i n a n y w a y
concerned t h e t r i a l of t h e case o r t h e d e f e n d a n t .
T h e acquaintance between M r s . White a n d M r s . G i r d l e r had
been d i s c l o s e d i n t h e c o u r s e of t h e v o i r d i r e . I n response
t o q u e s t i o n i n g by c o u n s e l , M r s . W h i t e i n d i c a t e d t h a t s h e had
known Mrs. G i r d l e r and h e r f o l k s f o r a l o n g t i m e , t h a t it w a s
just an acquaintance and that a-nything she knew about Mrs.
Girdler would not influence her decision about Mrs. Girdlerts
testimony. Mrs. White was not challenged by defense counsel
during the voir dire.
The essential. contention of the defendant is that, based
upon Turner v. Louisiana (1965), 379 U.S. 466, 85 Sect. 546,
13 L.Ed.2d 424, a new trial is warranted because of the
interaction between the juror and a witness for the State.
In the Turner case, two deputy sheriffs who were key
prosecution witnesses were also in charge of the jurors. The
Court emphasized that this was a continuous and intimate
association throughout a three day trial. Defendant contends
that here, as in Turner, a new trial should be granted
because of the lunch together, the possibility of
communication, the appearance of impropriety, and the social
interaction between the juror and the witness.
Immediately prior to the luncheon in question, the
District Court admonished the jury as follows:
"The jury is admonished not to discuss this case
among yourselves whatsoever, or with anyone else,
until it is finally submitted to you, and to form
no opinion whatever about it. You may leave to go
home for lunch, but don't discuss it with your
husbands or wives or family or anyone else until it
is finally submitted to you."
The record does not disclose that juror White discussed the
case with Mrs. Girdler or anyone else.
The ruling of the District Court on a motion for
mistrial is not to be lightly disturbed. As we stated in
Schrnoyer v. Bourdeau (19661, 148 Mont. 340, 420 ~ . 2 d316:
"We hold that once the District Court has
considered the matter, however it is raised,
whether on a question for mistrial or motion for a
new trial this court will not lightly disturb that
ruling. To overthrow it this court must be shown
by evidence that is clear, convincing, and
practically free from doubt, of the error of the
trial court's ruling." 148 Mont. at 343, 420 P.2d
at 317-18.
In this .state, if jury misconduct is shown tending to
injure the defendant, prejudice to defendant is presumed.
However, this presumption is not absolute and may be rebutted
by testimony of the juror showing facts which prove that
prejudice or injury did not occur. See State v. Eag$n
0,
(1978), 178 Mont. 67, 79, 582 P.2d 1195, 1202 and cases cited
therein. In the present case, any presumption of prejudice
arising from the unusual circumstance of a lunch between a
juror and a principal witness has been overcome by the
testimony of both the juror and the witness during the course
of the trial and prior to the submission of the case to the
jury.
We conclude that the defendant has failed to set forth
facts justifying a reversal. In reaching this conclusion, we
were guided by the analysis of both facts and law contained
in State v. Dickens (Mont. 1982), 647 P.2d 338, 39 St.Rep.
1137. In Dickens several of the witnesses apparently talked
to several members of the jury. No record was made of any
conversation. Factually Dickens is similar to the present
case in that there is evidence of communication between a
witness and a juror, but a total absence of evidence showing
that anything prejudicial to the defendant occurred during
the communication. In analyzing both the facts and the law
in Dickens, this Court stated:
"The first instance of alleged misconduct took
place, according to the appellant, during the trial
when several members of the jury were seen, by
several of appellant's witnesses, facing some of
the prosecution's witnesses and moving their
mouths. It is not clear from the record whether
any conversation was actually heard, but the
appellant's witnesses did testify during the motion
for a new trial that it 'appeared' some
communication took place.
". . .
[Tlhis type of communication, a possibility
at best, is not sufficient reversible error. In
Turner v. Louisiana (1965), 379 U.S. 466, 85 S.Ct.
546, 13-~.Ed.2d 424, a case cited as controlling on
this issue by appellant, the United States Supreme
Court held that a verdict can be reversed if it can
be shown that communications of a dubious nature
take place between prosecution witnesses and
jurors. A review of the facts in Turner reveals
that what consisted of reversible error there is a
far cry from what transpired in the present case.
In Turner, the two key prosecution witnesses were
deputy sheriffs who were also in charge of the
jurors. The Court noted:
"' . . .We deal here not with a brief encounter,
but with a continuous and intimate association
throughout a three-day trial -- an association
which gave these witnesses an opportunity, as
Simmons (one of the deputies) put it, to renew old
friendships and make new acquaintances among the
members of the jury.' 85 S.Ct. at 550.
"There is a distinction drawn by the United States
Supreme Court between a 'brief encounter' and an
'intimate association' and that distinction is
applicable here. At best, the record reflects some
innocuous type of conversation . . .
There was,
quite simply, not enough evidence presented by
appellant to warrant a new trial. Charlie v. Foos
(1972), 160 Mont. 403, 503 P.2d 538." 647 F. 2 m
341-42, 39 St.Rep. at 1140-41.
We emphasized in Dickens, as the United States Supreme
Court did in Turner, that a continuous and intimate
association throughout a three-day trial is a basis for
reversal. We also emphasized that there was a real
distinction between such contacts over a period of three
days, as in Turner, and the possibility of some communication
between the witnesses and the jurors, as in the Dickens case.
In a similar manner here, we do find the same type of a
continuous and intimate association which was found to be
improper in Turner.
We have carefully reviewed the transcript with regard to
the evidence on the part of Mrs. Girdler. There has been no
attack by the defendant on the credibility of this witness
and, in fact, no real disagreement with the testimony on the
part of the witness. No suggestion has been raised by the
defendant that any benefit accrued to the State by virtue of
the luncheon between Mrs. Girdler and the juror. Essentially
the evidence of Mrs. Girdler stands uncontradicted.
We conclude that in the present case there was no
communication of a dubious nature between the prosecution
witness and the juror. There has not been the degree of
impropriety which requires the drastic remedy of a new trial.
While we do not condone lunches between witnesses and jurors,
we conclude that here there was no communication related to
the defendant's case. We therefore find no basis for a
reversal. See 9 A.L.R.3d 1275.
The trial court promptly and thoroughly investigated the
alleged misconduct prior to the submission of the case to the
jury. No prejudice to the defendant was disclosed and the
appearance of impropriety was not a sufficient basis for
reversal.
The order denying motion for mistrial is affirmed.
We concur: