No. 85-374
I N THE SUPREME COURT OF THE STATE OF MONTANA
1985
STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs-
GERALD A A GEORGE,
L N
Defendant and Appellant.
APPEAL FROM: District Court o f t h e F i r s t J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f Lewis & C l a r k ,
The H o n o r a b l e Henry L o b l e , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Cannon & Sheehy; Edmund F. Sheehy, J r . , Helena,
H e l e n a , Montana
For Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Dorothy McCarter, A s s t . A t t y . G e n e r a l , Helena
Mike McGrath, County A t t o r n e y , H e l e n a , Montana
J o e S e i f e r t , Deputy County A t t o r n e y , H e l e n a
S u b m i t t e d on B r i e f s : O c t . 1 0 , 1985
Decided: J a n u a r y 7 , 1986
Filed:
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 .
Defendant was tried by the Lewis and Clark County
D i s t r i c t Court on a c h a r g e o f o p e r a t i n g a motor v e h i c l e a f t e r
h a v i n g been adjudged an h a b i t u a l t r a f f i c o f f e n d e r . Defendant
appeals h i s conviction. W a f f i r m t h e D i s t r i c t Court.
e
The i s s u e s on a p p e a l a r e :
1. Did t h e D i s t r i c t C o u r t e r r i n d e n y i n g d e f e n d a n t ' s
motion f o r a m i s t r i a l ?
2. Did the District Court err in placing upon the
d e f e n d a n t t h e burden o f p r o v i n g an e x t r e m e emergency i n o r d e r
t o be found n o t g u i l t y under § 61-11-213, MCA?
3. Was d e f e n d a n t ' s c o n v i c t i o n s u p p o r t e d by s u f f i c i e n t
evidence?
On November 1 0 , 1982, d e f e n d a n t was adjudged a n h a b i t u a l
t r a f f i c o f f e n d e r and h i s d r i v i n g p r i v i l e g e s were revoked. On
December 9, 1984, d e f e n d a n t and h i s g i r l f r i e n d went t o a
p a r t y a t t h e home o f a r e l a t i v e i n L e w i s and C l a r k County.
D e f e n d a n t ' s p a r e n t s were una.ble t o go and a l l o w e d d e f e n d a n t
and h i s companion t o u s e t h e c a r , w i t h t h e u n d e r s t a n d i n g t h a t
s h e was t o d r i v e t h e c a r . Defendant's f a t h e r t e s t i f i e d he
d i d n o t a l l o w t h e d e f e n d a n t t o d r i v e b e c a u s e he had l o s t h i s
driving privileges.
Defendant t e s t i f i e d t h a t when h e and h i s g i r l friend
l e f t the party, h i s g i r l f r i e n d drove. However, defendant
t e s t i f i e d t h a t when he o b s e r v e d t h a t s h e was s o i n t o x i c a t e d
a s t o be u n a b l e t o keep from weaving from s i d e t o s i d e , he
o r d e r e d h e r t o p u l l o v e r and g o t b e h i n d t h e wheel. Defendant
f u r t h e r t e s t i f i e d t h a t he would n o t have g o t t e n behind t h e
wheel if his g i r l f r i e n d had n o t been t o o i n t o x i c a t e d t o
drive. He also testified t h a t h e f e l t t h a t l i f e , l i m b and
p r o p e r t y were i n d a n g e r w i t h h e r b e h i n d t h e wheel.
Defendant drove the car into Helena and was stopped by
police a short distance from his home. The police officer
testified that she observed the defendant's car cross the
center line and watched it weave in its own lane of traffic.
When the officer stopped the car, she gave defendant the
field sobriety test which he passed. The police officer then
checked with the dispatcher and determined that defendant's
license had been suspended. She arrested him for operating a
motor vehicle while being an habitual traffic offender. The
police officer also gave the defendant's companion a field
sobriety test to determine if defendant's girl friend could
drive the vehicle home, but she did not pass the test.
Another police officer drove her home and left the vehicle
there.
The State emphasizes that the evidence demonstrates that
defendant had several opportunities to call a cab or his
father for a ride home, but did not do so. In addition,
defendant passed at least two establishments where he could
have used a telephone to call for a ride. The State points
out that defendant told the police officer that his girl
friend could drive the car to his father's house, but failed
to mention that he was driving because his companion was too
drunk to drive.
Followi.ng a jury trial and conviction, the defendant
appeals.
I
Did the District Court err in denying defendant's motion
for a mistrial?
Following the trial, the giving of instructions and oral
argument, the case was submitted to the jury at approximately
3 :10 p.m. At 9 :15 p.m., the jury returned to the courtroom
with a written verdict. The verdict, which was signed by the
foreperson, showed that ten jurors found the defendant guilty
of operating a motor vehicle after having been adjudged an
habitual traffic offender. The verdict also showed that two
jurors found him not guilty. The judge examined the verdict
and read the verdict into the record. The State requested
that the jury be polled. Counsel for the defendant objected
to the jury being polled and moved for a mistrial on the
basis that there was a hung jury, as a result of the 10-2
vote. The District Court then pointed out to the jury that
they were required to reach a unanimous verdict in a criminal
case if that was possible. He inquired whether they might
return to the jury room, deliberate further and cone up with
a unanimous verdict. The foreperson indicated that he did
not think it was possible, but two other jurors thought that
it was possible and that they should try again. At that
point, defense counsel pointed out his concern that pressure
to reach a unanimous verdict put on the two individuals who
voted not guilty.
Defense counsel argued that it was improper to put any
pressure upon those two individuals and that he thought there
had been a mistrial. He also pointed out that typically no
one should know what the vote of the jury had been and that
it was improper for the jury now to go back to try to reach a
unanimous verdict. In response, the district judge said to
the jury:
THE COURT: I don't think we should have any more
discussion on this before the jury. Ladies and
gentlemen, I am going to ask you to return to your
juryroom and spend a reasonable amount of time
trying to reach a verdict which is unanimous one
way or the other, guilty or not guilty. So you
will be remanded to the custody of the bailiff to
return to your juryroom and see whether you can,
within a reasonable time, achieve a unanimous
verdict. As far as anyone having any pressure put
on them, if you will read the instructions, you
will see very clearly the duties of a juror in that
regard as to how he is to react to the opinions of
the other jurors. I t h i n k it i s q u i t e c l e a r a s t o
what a j u r o r i s t o do. I d o n ' t t h i n k a n y o f you
s h o u l d t h i n k any p r e s s u r e i s b e i n g p u t on you.
That i s n o t t h e purpose o f t h e Court. However, I
do want t o p o i n t o u t t o you t h a t a l o t o f t i m e and
e f f o r t h a s been p u t i n on t h i s and w e h a v e no
conclusion. I f it i s p o s s i b l e t o g e t o n e , I would
l i k e t o see o n e . D o e s n ' t mean you h a v e t o come up
w i t h one. A l l right. W i l l you p l e a s e r e t u r n t o
y o u r juryroom and d e l i b e r a t e f o r a w h i l e and see i f
you c a n come up w i t h a v e r d i c t which i s unanimous
i n n a t u r e , and w e w i l l g e t you a n o t h e r v e r d i c t form
t o use. A l l r i g h t . C o u r t i s i n recess.
A f t e r t h e j u r y had d e p a r t e d t o t h e j u r y room, c o u n s e l f o r t h e
defendant again objected t o the jury being s e n t ba.ck and
r e q u e s t e d t h a t h i s motion f o r a m i s t r i a l be g r a n t e d .
The r e c o r d shows t h a t s h o r t l y a f t e r 10:OO p.m., t h e jury
r e t u r n e d t o t h e c o u r t r o o m w i t h a unanimous v e r d i c t f i n d i n g
t h e defendant g u i l t y a s charged. The j u r y was d i s m i s s e d a t
D e f e n d a n t r e l i e s upon B r a s f i e l d v . U n i t e d S t a t e s ( 1 9 2 6 ) ,
272 U.S. 448, as authority for reversible error in the
present case. In Brasfield, t h e U n i t e d S t a t e Supreme C o u r t
c o n s i d e r e d t h e s i t u a t i o n i n which a j u r y had f a i l e d t o a g r e e
upon a v e r d i c t a . f t e r some h o u r s o f d e l i b e r a t i o n . The t r i a l
court had inquired as to how the jury was divided
numerically. The U n i t e d S t a t e s Supreme C o u r t h e l d t h a t " t h e
inquiry i t s e l f should be regarded a s ground f o r r e v e r s a l . "
Brasfield, 272 U.S. at 450. The C o u r t r e a s o n e d t h a t the
i n q u i r y s e r v e s no u s e f u l p u r p o s e t h a t c a n n o t b e o b t a i n e d by
questions not requiring the jury t o r e v e a l t h e n a t u r e and
extent of the division, and t h a t s u c h a n i n q u i r y b r i n g s t o
bear an improper and coercive influence upon the jury.
Defendant argues that in the present case the court was
a d v i s e d by t h e j u r y how it was n u m e r i c a l l y d i v i d e d w i t h t h e
same a d v e r s e r e s u l t .
Defendant a l s o r e f e r s t o People v. Curry (Mich. App.
1 9 7 7 ) , 257 N.W.2d 751 and S t a t e v . R a n d a l l ( 1 9 6 0 ) , 137 Mont.
534, 353 P.2d 1-054. Both of these cases addressed the
so-called Allen instruction, which instructed the jury that
each juror ought to pa-y proper respect to the other's
opinions; if a much larger number of the panel is for
conviction, dissenting jurors should consider whether the
doubt in their minds was a reasonable one; and, on the other
hand, if the majority is for acquittal, the minority ought
seriously to ask themselves whether they may not consider the
correctness of and alter their judgments. The courts in both
cases condemned the use of the instruction. The courts held
that the inevitable effect of Allen-type instructions is to
suggest to minority jurors that they should surrender their
own convictions and follow the majority.
In the present case, no Allen-type instruction was
given. To the contrary, jury instruction 5 included the
following pertinent paragraphs:
The law requires the jury verdict in this case to
be unanimous. Thus, all twelve of your number must
agree in order to reach a verdict upon the charge
contained in the Information whether the verdict be
guilty or not guilty.
The jurors have a duty to consult with one another
and to deliberate with a view to reaching an
agreement, if it can be done without violence to
individual judgment. This means that you may fully
and fairly discuss among yourselves all of the
evidence you have seen and heard in this courtroom
about this case together with the law which relates
to this case as contained in the Judge's
instructions.
In the course of deliberations, a juror has a right
to re-examine his own views and change his opinion
if he is convinced to do so by fair and honest
discussion by any member or members of the jury,
based upon the evidence the jury saw and heard in
the trial and the law as given you in these
instruction.
However, no juror should surrender his honest
opinion as to the weight or effect of evidence or
as to the innocence o r ' guilt of the defendant
because the majority of the jury feels otherwise,
or for the purpose of returning an unanimous
verdict or to prevent a mistrial.
The court here did not make a prohibited inquiry of the
jury as to how it was divided numerically. The information
was furnished by the jury to the court by a written verdict,
which disclosed the 10-2 vote notwithstanding the instruction
requiring a unanimous verdict.
None the instructions this case had the
characteristics of an Allen instruction which could be
construed as coercing a minority juror into following the
majority. The instructions as given, clearly set forth the
correct rule that no juror should surrender his honest
opinion because the majority of the jury feels otherwise, or
for the purpose of returning a unanimous verdict or to
prevent a mistrial.
At the time he returned the jury to the jury room, the
district judge emphasized that as far as pressure is
concerned, the jury should read the instructions, which will
clearly describe the duties of the jury and instruct them as
to how a juror is to react to the opinions of other jurors.
The District Court further emphasized that no juror should
think any pressure was being put upon them him.
The defendant argues that by sending the jury back, the
court committed reversible error by discouraging the
dissenters from taking a view contrary to the majority. Had
that been done, we would reverse the conviction without
hesitation. However, the instructions clearly set forth the
standards to be applied by each of the jurors in
deliberating. Those instructions were strengthened by the
comments of the District Court. While the District Court did
encourage their attempt to secure a unanimous verdict, based
upon their initial failure to do so, he did indicate clearly
that none of them should feel any pressure was being put upon
them. He merely asked that they return to the jury room and
deliberate "for awhile" and see if they could come up with a
unanimous verdict.
In construing Brasfield, the Ninth Circuit Court of
Appeals recently stated in Locks v. Sumner (9th Cir. 1983) ,
703 F.2d 403, that a defendant's right to an impartial jury
and fair trial may be infringed if a trial judge's inquiry
into the jury's balloting would be likely to coerce certain
jurors into relinquishing their views in favor of reaching a
una.nimous decision.
To determine whether such coercion of the jury's
deliberative process occurred, the inquiry by the
judge must be viewed in light of the context in
which it was made, not in isolation.
Locks, 703 F.2d at 406-07. After a careful review of the
record and the manner in which the jury disclosed their
initial vote, we conclude that the District Court was correct
in refusing to grant a mistrial because of the initial
verdict of 10 guilty, 2 not guilty.
Did the District Court err in placing upon the defendant
the burden of proving an extreme emergency in order to be
found not guilty under S 61-11-213, MCA?
Section 61-11-213, MCA, the habitual traffic offender
statute under wh.ich defendant was convicted, reads as
follows:
Habitual traffic offender operating motor vehicle
guilty of misdemeanor. Any person found to be an
habitual traffic offender under this part, and who
thereafter operates a motor vehicle in this state
while the order of the court ~rohibitins such
operation remains in effect, shali be guilt$ of a
misdemeanor, and upon conviction thereof shall be
imprisoned for a period of not more than 1 year or
fined. not more than $1,000, or both. However, in
cases wherein the prohibited operation of a motor
vehicle by an habitual traffic offender is
necessitated in a situation of extreme emergency in
o r d e r t o s a v e l i f e , limb, o r p r o p e r t y , he s h a l l n o t
be deemed g u i l t y o f a v i o l a t i o n under t h i s p a r t .
The d e f e n d a n t was u n a b l e t o c i t e any c a s e a u t h o r i t y on
t h e question here. Defendant p o i n t s o u t t h a t i n most s t a t e s ,
t h e q u e s t i o n o f o p e r a t i o n o f a motor v e h i c l e by an h a b i t u a l
offender in an extreme emergency is a question to be
considered a t sentencing, r a t h e r than t o determine g u i l t o r
innocence a t t h e t i m e o f t r i a l . Defendant a r g u e s t h a t , under
t h i s p e c u l i a r s t a t u t o r y p r o v i s i o n , t h e S t a t e had t h e burden
o f p r o v i n g beyond a r e a s o n a b l e d o u b t t h a t t h e d e f e n d a n t was
- f a c i n g an extreme emergency which j u s t i f i e d h i s d r i v i n g
not
the vehicle. At the close of the prosecution's case,
d e f e n d a n t moved to dismiss on the ground that the State
f a i l e d t o prove t h a t d e f e n d a n t was n o t f a c i n g such a n e x t r e m e
emergency. The D i s t r i c t Court d e n i e d t h a t motion.
The d e f e n d a n t a r g u e s t h a t i f a p e r s o n i s d r i v i n g a motor
v e h i c l e i n an extreme emergency, t h e r e i s no o f f e n s e . He
t h e r e f o r e a r g u e s t h a t t h e q u e s t i o n o f a n extreme emergency
should not be c o n s i d e r e d a s an a f f i r m a t i v e d e f e n s e t o be
proved by t h e d e f e n d a n t by a p r e p o n d e r a n c e o f t h e e v i d e n c e .
I n making h i s argument, d e f e n d a n t t e n d s t o i g n o r e t h a t
portion of $ 61-11-213, MCA, which p r o v i d e s that a person
s h a l l n o t be deemed g u i l t y o f a v i o l a t i o n i n c a s e s where t h e
p r o h i b i t e d o p e r a t i o n o f t h e motor v e h i c l e " i s n e c e s s i t a t e d i n
a s i t u a t i o n o f extreme emergency i n o r d e r t o s a v e l i f e , l i m b ,
o r property."
W e have c a r e f u l l y reviewed t h e t e s t i m o n y on t h e p a r t o f
d e f e n d a n t and h i s f a t h e r , the only witnesses t o t e s t i f y i n
the defendant's behalf. The evidence fails to show an
extreme emergency r e q u i r i n g t h e d e f e n d a n t t o d r i v e i n o r d e r
t o save l i f e , limb, o r property. Neither t h e defendant nor
h i s a l l e g e d l y i n e b r i a t e d companion w e r e r e q u i r e d t o d r i v e a t
all. They c o u l d have chosen t o walk. A s p o i n t e d o u t by t h e
State, t h e d e f e n d a n t c o u l d have c a l l e d f o r a c a b o r c a l l e d
f o r h i s f a t h e r t o come p i c k them up. H e c h o s e t o do n e i t h e r .
Defendant's testimony showed that his basic reason for
d r i v i n g was t h a t i t was n o t s a f e t o have h i s g i r l friend
drive the car because s h e was inebriated. While it was
commendable that he stopped her from driving in that
condition, t h e r e was no r e q u i r e m e n t a t t h a t p o i n t t h a t he
drive. Defendant h a s f a i l e d t o p r o v e t h a t h e comes w i t h i n
t h e r e q u i r e m e n t s o f S 61-11-213, MCA.
It i s t r u e t h a t t h e S t a t e i s r e q u i r e d t o prove every
e l e m e n t o f an o f f e n s e beyond a r e a s o n a b l e d o u b t . See S t a t e
v. Patten ( 1 9 7 9 ) , 183 Mont. 417, 600 P.2d 194. However, as
pointed. o u t in S t a t e v. Gratzer ( 1 9 8 4 ) , 682 P.2d 141, 41
St.Rep. 727, the State is not required to prove the
n o n e x i s t e n c e o f e v e r y f a c t t h a t may c o n s t i t u t e an e x c u l p a t o r y
circumstance a f f e c t i n g t h e g u i l t o f t h e defendant.
The State points out that t h e emergency p r o v i s i o n of
5 61-11-213, MCA, i s n o t an element o f t h e o f f e n s e . It i s a
defense t o t h e charge. I t i s of course appropriate t h a t t h e
burden o f p r o o f o f t h a t extreme emergency b e p l a c e d upon t h e
defendant.
Defenda.nt p r e s e n t s two a d d i t i o n a l l e g a l t h e o r i e s on t h i s
i s s u e , n e i t h e r o f which was p r e s e n t e d a t t h e d i s t r i c t c o u r t
level. W w i l l n o t c o n s i d e r such arguments r a i s e d f o r t h e
e
f i r s t time on a p p e a l . Vogel v . Gibson's Discount Centers
(Mont. 1 9 8 4 ) , 681 P.2d 40, 4 2 , 4 1 St.Rep. 874, 876-77.
We hold that the District Court properly placed the
burden upon t h e d e f e n d a n t o f p r o v i n g extreme emergency a s
d e f i n e d under S 61-11-213, MCA.
III
Was defendant's conviction supported by sufficient
evidence ?
On this issue, defendant presents an argument sirnil-ar to
that on the preceding issue. He contends that there was a
sudden emergency which required him to drive. Defendant
argues that he did not realize his girl friend was too
intoxicated to drive until after they had driven some
distance, and it therefore became appropriate for him to
drive. As previously stated, defendant has failed to prove
that it was necessary that he drive to save life, limb or
property in an extreme emergency. The State clearly met the
proof requirements of the statute. The defendant failed to
prove by a preponderance of the evidence the existence of an
extreme emergency, defined by the statute.
We hold that the verdict was supported by sufficient
evidence.
The judgment of the District Court is affirmed.
/*
We concur: /