NO. 95-176
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
DAVID GIRARD KELMAN,
Defendant and Appellant
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen J. Nardi, Sherlock & Nardi,
Kalispell, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Kathy Seeley, Assistant Attorney General,
Helena, Montana
David G. Rice, Hill County Attorney,
Havre , Montana
Submitted on Briefs: February 29, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
David Girard Kelman appeals from che judgment and sentence
entered by the Twelfth Judicial District Court, Hill County, on a
jury verdict finding him guilty of the felony offense of tampering
with public records or information, We affirm.
The issues on appeal are as follows:
1. Was there sufficient evidence to support the jury
verdict?
2. Did the District Court err when it denied Kelman's motion
for a new trial based on alleged juror misconduct?
FACTS
Kelman is a principal owner of Big Ten Electronics (BTE), a
corporation that manufactures and distributes video gambling
equipment. He is also the managing partner of American Music, a
business which places gambling machines, jukeboxes, and pinball
machines in various establishments throughout Montana. In the fall
of 1991, after discovering an opportunity to purchase and remodel
a gambling casino located in Havre, Kelman purchased the property
and obtained a liquor license for the establishment which was named
Boxcars Casino.
Al Ransome, a Louisiana resident, and his partner, Joe
Terrell, formed a Louisiana corporation called Gaming Management,
Inc. (GMI) in 1991 to become involved in the video gambling
business in Louisiana. They intended to file an application for a
Louisiana video gambling license and hoped to become a distributor
in Louisiana for video poker machines. Ransome hired two
individuals, Oick Odom and John Marley, to assist him in the
business venture, and in 1991 Odom and Marley contacted Kelman to
discuss opportunities for distributing BTE video gambling machines
in Louisiana.
Sometime between September and November 1991, Marley and Odom
informed Ransome of the opportunity to become involved in the
Boxcars business venture. The proposal was that Ransome's
corporation would put up half the cost of purchasing and remodeling
the building and securing the liquor license and in return Kelman
and GMI would become 5 0 / 5 0 partners in Boxcars. The conditions to
finalizing the partnership were payment of GMI's share of the
capital contribution, the signing of a partnership agreement, and
approval by the State of Montana of GMI's involvement in the
project.
In November 1991 Kelman's attorney, Matt Robinson, presented
Ransome with a written partnership agreement. Ransome made two
amendments to the agreement, reran it on his computer, and signed
it. Ransome testified that when he inquired of Robinson when
Kelman would sign the agreement he was told that in order to avoid
delay in obtaining the gambling license, the agreement would be
signed after the business was open and GMI's share of the money had
been paid. Nevertheless, Ransome testified that "the agreement was
there between us, and I trusted che agreement."
Kelman would periodically send Ransome a list of expenditures
relaced to Boxcars and Ransome would send money covering half of
the expenses. On December 24, 1991. Ransome sent Kelman a check
for $25,000 with a notation stating "reimbursement for Boxcar's
[sic], Havre, Montana Gaming Mgt . " Ransome wire transferred
$25,000 to Kelman on January 21, 1992, $20,000 on March 20, 1992,
and $20,000 on April 15, 1992, for a total of $90,000. Ransome
made no further advances after April 15, 1992. The funds were
deposited into a bank account in Kelman's name at the First Bank in
Great Falls. The account was used primarily for the Boxcars
venture and Kelman testified that "every penny" sent by Ransome had
been spent at Boxcars.
On January 31, 1992, the Gambling Control Division of the
Montana Department of Justice (the Division! received an
application from Kelman for a gambling operator's license. The
application was prepared and signed by Robinson as Kelman's
attorney. John Flynn, a revenue agent with the Division, reviewed
the application and determined that the information provided was
incomplete. Flynn was specifically concerned about where the money
to finance the business was coming from and whether Kelman was
receiving funds from noninstitutional sources.
On March 18, 1992, Flynn and his supervisor met with Kelman
and Robinson to discuss the application and the Division's concern
over noninstitutional lenders. On March 23, 1992, the Division
received an SIL (noninstitutional loan! report form in which Kelman
reported two noninstitutional loans--one from American Music for
$60,000 and one from BTE for $75,900. By March 20, i992, Kelman
had received $70,000 from Ransome for the Boxcars project.
At the time the NIL reporting form was submitted, Kelman
resubmitted his application for a gambling operator's license since
the original four-page application had been revised into a longer
six-page form. The new application was signed by Robinson on
Kelman's behalf. Section E of the application indicated that no
other person or entity had any financial interest or derived income
from the business. Section N of the application required Kelman to
provide creditor information for each outstanding loan and/or
financial obligation (institutional/personal/other) obtained or
used for operating the business. Kelman reported two loans from
the First Bank in Great Falls, one for $60,000 and one for $80,000.
No information was provided concerning the $70,000 financial
obligation to Ransome.
Flynn sent the application to Rick Losleben, an investigator
with the Gambling Investigations Bureau of the Montana Department
of Justice, to verify the information. On April 27, 1992, Losleben
and Kelman met to discuss the application. By this time, Kelman
had received $90,000 from Ransome. Losleben asked Kelman for
additional information about the loans to Boxcars from American
Music and BTE. After Losleben and Kelman reviewed the application
and Kelman made some changes to the document, Kelman signed the
application
During the course of the meeting, Losleben filled out a
standard investigation report which Kelman also signed. In
Section C of that report, Kelman was asked who had invested in
Boxcars. Kelman listed loans from First Bank of Great Falls,
American Music, and himself. In Section D Kelman indicated no one
had any right to share in the profits or had an obligation for
business liabilities relating to the gambling or liquor operations
of the business. Section K required Kelman to list the amount and
sources of all financing for the business and list all loan
agreements. Kelman listed loans received from BTE, American Music,
and First Bank of Great Falls. He did not list the $90,000 which
by then he had received frcm Ransome and spent on the Boxcars
project. After the meeting Losleben forwarded the information to
the Division and a gambling license was issued to Kelman. Boxcars
Casino opened for business on June 24, 1992.
During a trip to Montana in August 1992, Ransome discovered
that Montana law would prevent a nonresident from becoming a 50/50
partner in the Boxcars operation. Ransome testified that at that
point in time he considered the money he had sent to Kelman to be
a loan which he expected Kelman to repay once the business was up
and running.
In May 1992 Ransome had applied for a video gambling
operator's license in Louisiana and informed Louisiana authorities
he had an interest in the Boxcars operation. In September 1992
Losleben received material frcm a Louisiana state trooper regarding
Ransomers application for the Louisiana license and his stated
involvement with Boxcars. In the summer of 1993, Losleben met with
Ransome in Baton Rouge to discuss the situation and, as a result;
Losleben identified the bank account into which the funds from
Ransome to Kelman had been deposited. This was the first
information Montana authorities received concerning the funds
provided by Ransome for the Boxcars project.
On May 25, 1994, Kelman was charged with two counts of
tampering with public records or information pursuant to
§ 45-7-208, MCA, based upon his failure to disclose the funds
received from Ransome on his application to the Division. Kelman
entered pleas of not guilty to both counts. On November 18, 1994,
the District Court granted Kelmanis motion to merge the two counts
into one count. On November 28 through 30, 1994, Kelman was tried
before a jury which returned a guilty verdict. On December 22,
1994, Kelman filed a motion for a new trial based on alleged juror
misconduct. On January 4, 1995, the District Court denied the
motion and sentenced Kelman to one year and one day in the Montana
State Prison together with a fine of $35,000 plus a ten percent
surcharge. The District Court suspended the entire prison
sentence. This appeal followed.
ISSUE 1
Was there sufficient evidence to support the jury verdict?
When the issue on appeal in a criminal case is whether there
was sufficient evidence to support a jury verdict, the standard of
review is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. State v. Licht (1994), 266 Mont. 123, 131, 879 P.2d 670,
675 (citing State v. Lyons (l992), 254 Mont. 360, 363, 838 P.2d
Section 45-7-208, MCA, defines the offense of tampering with
public records or information as follows:
(1) A person commits the offense of tampering with public
records or information if he:
(a) knowingly makes a false entry in or false
alteration of any record, document, legislative bill or
enactment, or thing belonging to or received, issued, or
kept by the government for information or record or
required by law to be kept by others for information of
the government;
(b) makes, presents, or uses any record, document,
or thing knowing it to be false and with purpose that it
be taken as a genuine part of information or records
referred to in subsection (1)(a) or
;
(c) purposely destroys, conceals, removes, or
otherwise impairs the verity or availability of any such
record, document, or thing.
(2) A person convicted of the offense of tampering
with public records or information shall be imprisoned in
the state prison for any term not to exceed 10 years or
be fined an amount not to exceed $50,000, or both.
Kelman argues that he acted in good faith and on the advice of
his counsel. He maintains that Robinson completed the application
form and Losleben completed the investigation report. Thus, Kelman
claims he did not knowingly falsify the information contained in
the application documents. He claims he made an honest effort to
comply with the requirements of the application which he contends
were confusing and ambiguous
Kelman goes on to argue that the funds sent by Ransome were
personal in nature and that Flynn and Losleben indicated they were
not interested in knowing the source of the funds he was personally
investing in the business. Kelman further claims that at the time
the application forms were submitted neither his partnership with
Ransome nor a loan agreement had been consummated. Thus, he claims
he was put into a "Catch-22" situation in that the funds could not
properly be characterized as either an investment in the business
or a loan obligation.
The State argues that there was sufficient evidence presented
at trial of every element of the crime, including the requisite
mental state necessary to convict Kelman. The State contends that
the $90,000 Kelman received from Ransome was either an investment
in Boxcars or a financial obligation of the business, which in
either case should have been reported on the application and
investigation report. The State maintains that Kelman's contention
that the loan was "personal" rather than a loan of money for the
Boxcars business venture is not credible and raises the inference
that he was not telling the truth about how the $90,000 was omitted
from the application materials.
The jury was instructed that the existence of a mental state
may be inferred from the acts of the accused and the facts and
circumstances connected with the offense. Section 45-2-10313),
MCA. The jury was presented with evidence concerning Kelman's acts
and the circumstances surrounding the case.
Although Robinson initially signed the gambling operator
applica~ion form, he testified that at that point in time he was
not aware that Kelman had received money from Ransome for the
Boxcars project. When Flynn and his supervisor met with Kelman and
Robinson in March 1992, Flynn explained the definition of a
noninstitutional source of funding. Flynn sent Kelman a follow-up
letter after the meeting emphasizing the importance of disclosing
noninstitutional funding. When Kelman completed the NIL form later
that month he indicated he had received two noninstitutional loans,
one from American Music and one from BTE. He failed to disclose
the $70,000 he had already received from Ransome.
By the time Kelman met with Losleben, Kelman bad received
$90,000 from Ransome. Losleben and Kelman together reviewed the
pending application and the investigation report. Losleben filled
out the report but Kelman acknowledged he was present at the time
and read through the document before he signed it. Both forms
clearly indicated above the signature lines that the information
was true and correct and that false information could result in
denial of the license and criminal prosecution. Nowhere on either
the application form or the investigation report did Kelman
disclose the funds received from Ransome. At no point during his
conversations with Flynn or Losleben did Kelman mention the
Louisiana funding for the project.
Kelman claims he did not list the Ransome money because he and
Ransome had not yet executed a formal partnership or loan
agreement. However, the record indicates that Ransome sent the
money to Kelman specifically for the Boxcars project and that the
money went directly into an account used to pay for Boxcars'
expenses. Kelman nevertheless made a conscious choice not to
disclose to the Division the funds sent by Ransome when disclosure
of such noninstitutional funding sources was required.
The jury did not find credible Kelman's contention that
Ransome's money was neither an investment in Boxcars nor a loan for
the business venture. We have stated that the credibility of
witnesses and the weight to be assigned to their testimony are to
be determined by the trier of fact and disputed questions of fact
and credibility will not be disturbed on appeal. State v. Graves
(1995), 272 Mont. 451, 457, 901 P.2d 549, 553. The jury decides
the facts and who to believe. Graves, 901 P.2d at 553.
We conclude, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. We hold that sufficient evidence existed to support the
jury verdict, and therefore, affirm the District Court on this
issue.
ISSUE 2
Did the District Court err when it denied Kelman's motion for
a new trial based on alleged juror misconduct?
We review a district court's denial of a motion for a new
trial to determine whether the district court abused its
discretion. State v. Mummey (1994), 264 Mont. 272, 276, 871 P.2d
868, 870. Absent an abuse of discretion the district court's
decision concerning whether or not to grant a motion for a new
trial will be affirmed. State v. Hatfield (19951, 269 Mont. 307,
310, 888 P.2d 899, 901.
Kelman moved for a new trial on the ground that the jury was
exposed to extraneous prejudicial information. Kelman attached to
his motion an affidavit from one of the jurors stating that during
deliberations another juror stated that "she believed that David
Kelman owned the Playground Bar in Great Falls, Montana." Kelman
alleges that the Playground Bar is a strip bar with a bad
reputation. The affiant stated that it appeared the comment was
made to make Kelman look bad. The District Court considered the
juror affidavit but denied the motion for new trial reasoning that
the juror statement was not material to Kelman's guilt or innocence
and that insufficient evidence existed to show that the conviction
was related to the alleged remark.
Rule 606(b), M.R.Evid., provides that a juror may not testify
as to what occurred during the jury's deliberations except when the
information pertains to: (1) whether extraneous prejudicial
information was improperly brought to the jury's attention;
(2) whether any outside influence was brought to bear on any juror;
or (3) whether any juror was induced to assent to any verdict or
finding by resort to the determination of chance. Kelman argues
that the juror statement was extraneous prejudicial information
properly received under Rule 606(b) (11, M.R.Evid.
Kelman contends that the initial jury panel vote was 6-6 but
that sometime after the comment was made the panel vote was 9-3 in
favor of a guilty verdict. He maintains that the statement was
inherently prejudicial given the "generally sleazy image" of strip
clubs and concludes that "many jurors would assume that a strip
club owner is likely to be a person who would intentionally mislead
governmental regulatory authorities." He argues that "the jury
herein was comprised almost exclusively of women, likely to have an
unfavorable opinion of strip clubs no matter how honest or lawful
their operation." Kelman argues that the jury statement amounted
to juror misconduct sufficient to require a new trial.
The State counters that the alleged statement was an internal
influence and therefore does not fall within one of the three
exceptions set forth in Rule 606(b), M.R.Evid. The State further
argues that even if the statement was extraneous information, the
information was not prejudicial to Kelman and the District Court
did not abuse its discretion in denying the motion for new trial.
In State v. Brogan (19951, 272 Mont. 156, 900 P.2d 284, we
held that juror affidavits may not be used to impeach a verdict
based upon internal influences on the jury such as a mistake of
evidence or misapprehension of the law. Broaan, 900 P.2d at 287
(citing Harry v. Elderkin (1981), 196 Mont. 1, 8, 637 P.2d 809,
8131. Where external influence is exerted or external prejudicial
information is brought to the jury's attention, juror affidavits
can be the basis of overturning the judgment. Broqan, 900 P.2d at
287. Examples of external influence include a juror's telephone
call obtaining information with regard to previous litigation by
the plaintiff, visiting the scene of an accident, or bringing a
newspaper article about the trial into the jury room for the jurors
to see. Broqan, 900 P.2d at 287 (citing Geiger v. Sherrodd (19931,
262 Mont. 505, 510-11, 866 P.2d 1106, 1109).
We must therefore determine whether the statement was an
external or internal influence on the jury. In State v. Hage
(19931, 258 Mont. 498, 853 P.2d 1251, among other claims of juror
misconduct was the allegation that one juror had informed other
jurors that he had personal knowledge that a telephone log was kept
of all telephone calls made from the jail. Haqe, 853 P.2d at 1256.
Citing State v. DeMers (l988), 234 Mont. 273, 762 P.2d 860, we
concluded that knowledge and information shared from one juror to
another or others is not an extraneous influence. Haqe, 853 P.2d
at 1257.
Moreover, one of the purposes behind Rule 606(b), M.R.Evid.,
is to ensure that jurors are able to deliberate free from the
frivolous and recurrent invasions of their privacy by disappointed
litigants. State v. Maxwell (1982), 198 Mont. 498, 505, 647 P.2d
348, 353. Jurors are expected to bring to the courtroom their own
knowledge and experience to aid in their resolution of the case.
DeMers, 762 P.2d at 863.
The statement at issue in the present case is a juror's belief
that Kelman owned the Playground aar. Like the juror's belief as
to the jailhouse telephone log at issue in Kaqe, we conclude that
the statement made in the present case, whether mistaken or not,
was an internal influence and within the prohibition of Rule
606(b), M.R.Evid. Even though we hold that the District Court
erred in considering the juror affidavit in ruling on Kelman's
motion for a new trial, we conclude the court did not abuse its
discretion when it denied the motion. In affirming the District
Court on this issue, we rely on our determination that the juror
statement was not an external influence subject to the exceptions
of Rule 606(b), M.R.Evid.
Af firrned.
Justice
We concur:
Justices
15
Justice W. William Leaphart, specially concurring.
Although I concur in the result reached by the Court, I do not
agree with the Court's conclusion that the juror's statement as to
her belief that Kelman owned the Playground Bar in Great Falls was
an internal influence on the jury and, thus, outside the scope of
Rule 606(b!, M.R.Evid. Relying on State v. Brogan (1995), 272
Mont. 156, 161, 900 P.2d 284, 287, the Court takes the approach
that Rule 606(b!, M.R.Evid., only encompasses situations in which
information is brought to the jury's attention through external
sources; e.g., telephone calls, visits to the scene of an accident
or a newspaper being brought into the jury room. The Court makes
the mistake of focusing on the non-jury source of the information
to the exclusion of the substance of the information. ijnder the
Court's rationale, if a juror brought a newspaper into the jury
room which had an article about Kelman's owning the Playground Bar,
that would be considered an external source and, thus, could be the
subject of an affidavit under Rule 606(b), M.R.Evid. However,
since that same information was brought before the jury through an
oral representation by a juror, we are left powerless to take any
remedial action. I disagree.
Rule 606(b), M.R.Evid.,provides that a juror may testify as
to what occurred during deliberations when extraneous prejudicial
information is improperly brought to the jury's attention. The
focus of the rule is upon the "extraneous prejudicialN nature of
the information. Application of Rule 606(bi, M.R.Evid., does not
hinge upon whether or not the information was introduced by a
source from outside the jury room. Thus, in the present instance,
the question is not how the information about the Playground Bar
got to the jury but, rather, whether that information was
extraneous (outside the record) and prejudicial.
In my view, when facts about a party, other than those deemed
relevant and admissible at trial, are brought to the jury's
attention, those facts are extraneous. It is one thing for jurors
to apply their common sense or knowledge to the facts of the case,
as developed at trial. That is the very sort of internal
deliberation envisioned by our system of justice. It is entirely
another matter if a juror, rather than merely applying his/her
common sense and knowledge to the facts of the case, injects new
facts about the defendant into the deliberations. In a criminal
case such as this, juror reliance on anything other than facts of
record violates the right of confrontation and cross-examination.
In United States v. Perkins (11th Cir. 19841, 748 F.2d 1519,
the defendant was convicted of conspiracy and obstruction of
justice. On appeal, Perkins alleged juror misconduct based upon
the testimony of one juror to the effect that another juror was
"especially committed" to a guilty verdict and that he stated he
knew Perkins and had previously served on a committee with him.
The Eleventh Circuit ordered a new trial finding that the juror's
conduct violated Perkins' right under the Sixth Amendment to a jury
verdict based on the evidence at trial
Extrinsic evidence, evidence that has not been subject to
the procedural safeguards of a fair trial, threatens such
constitutional safeguards as the defendant's right of
confrontation, of cross-examination, and of counsel.
[Citation omitted.I In addition, since such evidence has
not been subject to the rules of evidence, it may confuse
the jurors . . . .
Perkins, 748 F.2d at 1533.
The Eleventh Circuit then held that the injection of extrinsic
evidence through a juror created a rebuttable presumption of
prejudice that the government could overcome by demonstrating that
the consideration of this evidence was harmless
[The juror's] remarks that he knew Perkins and/or
had served on a committee with him were heard by eight of
[the juror's] eleven co-jurors. These comments were made
before a jury which for many hours had remained
hopelessly deadlocked, and were made by a juror who was
outspoken in his belief that Perkins should be convicted.
The likelihood of prejudice on a jury is obvious.
Perkins, 748 F.2d at 1534. In Perkins, the government was unable
to overcome the presumption of prejudice.
United States ex rel. Owen v. McMann (2nd Cir. 1970), 435 F.2d
813, cert. denied, 402 U.S. 906 (1971), was a habeas corpus
proceeding in which the defendant alleged that three jurors had
considered extraneous statements about him, that is, statements
which were not in the record. The district court, after conducting
a hearing, found:
In substance, the jurors or some of them were told
by other jurors during the trial and the deliberations:
that the defendant had been in trouble all his life; that
he had been suspended from the police force in connection
with the unauthorized use of a prowl car; that he had
been involved in a fight in a tavern; that one of the
juror's husband was an investigator and that he knew all
about plaintiff's background and character, which was
bad; and that petitioner's father was always getting him
out of trouble.
McMann, 435 F.2d at 815
The Second Circuit, in affirming, concluded that McMann had
been denied his Sixth Amendment right of confrontation.
The invocation of the confrontation clause in Parker was
entirely appropriate to shield the defendant from
comments to the jury by one whose statements, if
admissible at all, could have properly been received only
from the witness stand, subject to the procedural
safeguards which the Sixth Amendment requires. But, so
far as we know, the Court has never suggested that
jurors, whose duty it is to consider and discuss the
factual material properly before them, become "unsworn
witnesses" within the scope of the confrontation clause
simply because they have considered any factual matters
going beyond those of record. To resort to the metaphor
that the moment a juror passes a fraction of an inch
beyond the record evidence, he becomes "an unsworn
witness" is to ignore centuries of history and assume an
answer rather than to provide the basis for one.
Although accurate knowledge of what goes on in the
jury room is unhappily limited, see Kalven and Zeisel,
The American Jury vi-vii (1966), we suspect there are
many cases where jurors make statements concerning the
general credibility or incredibility of the police, the
need of backing them up even when there is reasonable
doubt of guilt or putting brakes upon them even when
there is none, the desirability of overcoming reasonable
doubt because of the repugnance of particular crimes or
of yielding to less than reasonable doubt because of
their insignificance, and concerning other matters that
would invalidate a judgment if uttered by a judge, see
Id. at 131-32. Yet this is the very stuff of the jury
system, and we have recognized, in a not unrelated
context, that the standards for judges and juries are not
the same, United States v. Maybury, 274 F.2d 899, 902-903
(2 Cir. 1960). The touchstone of decision in a case such
as we have here is thus not the mere fact of infiltration
of some molecules of extra-record matter, with the
supposed consequences that the infiltrator becomes a
"witness" and the confrontation clause automatically
applies, but the nature of what has been infiltrated and
the probability of prejudice.
McMann, 435 F.2d at 817-18. The Court, relying on the Fifth
Circuit holding in United States v. McKinney (5th Cir. 19701, 429
F.23 1019, cert. denied, 401 U.S. 922, concluded:
In short, the inquiry is not whether the jurors "became
witnesses" in the sense that they discussed any matters
not of record but whether they discussed specific extra-
record facts relating to the defendant, and if they did,
whether there was a significant possibility that the
defendant was prejudiced thereby.
McMann, 435 F.2d at 818 3.5.
By way of further illustration, the Fifth Amendment to the
United States Constitution and Article 11, Sec. 25 of the Montana
Constitution both protect an accused from havingto testify against
himself. If, despite this constitutional protection, a juror
advises her fellow jurors that she heard that the defendant
admitted to having committed the offense in question, that comment
would be extraneous, prejudicial and a violation of the defendant's
constitutional right to remain silent.
Despite the above examples of situations in which extraneous
(outside the record) and highly prejudicial material is introduced
into the jury room by jurors themselves, this Court would
apparently hold that these are strictly "internal" influences and,
thus, beyond the reach of Rule 606 (b), M.R.Evid. I cannot agree
with the majority's proposition that Rule 606!b), M.R.Evid., only
encompasses prejudicial materials introduced into the jury room
through non-juror sources; that it does not pertain to a juror's
reliance on personal knowledge of additional "factsw about the
defendant which have not been subject to the procedural safeguards
of a fair trial. To the extent that State v. Hage (1993), 258
Mont. 498, 853 P.2d 1251 or State v. Brogan (19951, 272 Mont. 156,
900 P.2d 284, express a contrary view, I would vote to overrule or
limit their holdings.
In the present case, although I believe that the statement
about Kelman's ownership of a strip bar in Great Falls was
extraneous and thus an "external" influence, the statement does not
,
satisfy the other prong of the Rule 606ibi (1) M.R.Evid., test.
That is, it was not prejudicial. % Lacy v. Gabriel (D. Mass.
19831, 567 F. Supp. 467, 470-71, aff'd, 732 F.2d 7 (1st Cir. 1984),
cert. denied, 469 U.S . 861 (in habeas corpus proceeding arising out
of murder conviction, where one juror had uncovered masked portions
of photographs, the appellate court found that it was a violation
of the defendant's right of confrontation. The error, however, was
harmless where other evidence of the defendant's guilt was
copious). The issue at hand was not whether Kelman was engaged in
unsavory business ventures but whether he had tampered with public
records. The alleged ownership of the Playground Ear was not
relevant to any of the elements of the crime charged and,
therefore, the juror's statement had no bearing on a material fact
in the case. Accordingly, despite the Court's misreading of Rule
606(b), M.R.Evid., I concur with the result.
April 23, 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order w s sent by United States mail, prepaid, to the
a
following named:
Stephen J. Nardi
Sherlock & Nardi
30 Fifth Street East
Kalispell MT 59901-4999
Hon. Joseph P. Mazurek, Attorney General
Kathy Seeley, Assistant Attorney General
215 N. Sanders
Helena MT 59620
David G. Rice
Hill County Attorney
Box 912
Havre MT 59501-0912
ED SMXTH
C U R K OF THE SUPREME COURT
STATE OF MONTANA