State v. Stafford

NO. 83-147
IN THE SUPREBE COURT OF THE STATE OF MONTANA

1984

STATE OF MONTXqA,
Plaintiff and Respondent,
-vs-

MICHAEL JOSEPH STAFFORD,

Defendant and Appellant.

APPEAL FROPI: District Court of the Second Judicial District,
In and for the County of Silver BOW,
The Honorable Arnold Olsen, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

W. D. Plurray, Jr., argued, Butte, Montana

For Respondent :

Hon. Mike Greely, Attorney General, Helena, Montana
Judy Browning argued, Asst. Atty. General, iielena
Robert IT. McCarthy, County Attorney, Butte,
Montana

Submitted : January 10, 1934
Decided: March 5 , 1984

Filed:;. -

-
.
Clerk
Mr. J u s t i c e F r a n k B. Morrison, J r . d e l i v e r e d t h e O p i n i o n of
t h e Court.

Defendant Michael Joseph Stafford was charged with

v i o l a t i n g s e c t i o n 61-7-103(1), M.C.A.--leaving t h e scene of

an accident involving personal i n j u r i e s . The c a s e was t r i e d

before a jury i n t h e D i s t r i c t C o u r t of t h e Second J u d i c i a l

District, S i l v e r Bow County. The j u r y r e t u r n e d a v e r d i c t o f

guilty, and d e f e n d a n t was s e n t e n c e d by t h e t r i a l c o u r t . We

reverse.

While driving through an intersection of U.S. 10 and

Ramsay Road in Silver Bow County, defendant broadsided

a n o t h e r a u t o m o b i l e , d r i v e n by Norwood R u s s e l l , which c a r r i e d

a s p a s s e n g e r s R u s s e l l ' s w i f e and s o n . R u s s e l l and h i s w i f e

w e r e both injured. Russell approached d e f e n d a n t ' s car to

check h i s c o n d i t i o n . D e f e n d a n t t o l d R u s s e l l t h a t h e was a l l

right, b u t t h a t h e was l e a v i n g b e c a u s e t h e p o l i c e would b e

coming. Defendant d r o v e away, and R u s s e l l , who was iri a

weakened condition, passed out. A passing motorist saw

d e f e n d a n t ' s c a r and r e c o r d e d t h e l i c e n s e p l a t e number b e f o r e

he l e f t t h e scene.

A highway patrolman arrived shortly thereafter, and

while inspecting the accident received a radio call that

d e f e n d a n t was a t a n e a r b y r e s i d e n c e . D e f e n d a n t had d r i v e n t o

t h e home o f a f r i e n d who c a l l e d t h e Highway P a t r o l t o r e p o r t

the incident. The p a t r o l m a n w e n t t o t h e residence, where

defendant admitted that h e had been in an accident. The

p a t r o l m a n matched a g r i l l found a t t h e s c e n e o f t h e a c c i d e n t

t o the defendant's car. D e f e n d a n t was t h e r e u p o n a r r e s t e d and

charged with leaving the scene of an accident involving

personal injuries. Defendant, who was intoxicated at the

t i m e o f t h e c r a s h , was a l s o c h a r g e d w i t h d r i v i n g u n d e r t h e
influence of alcohol. Defendant pleaded guilty to the D.U.I.
charge.
Defense counsel was advised by the court that if the
defendant pleaded guilty he would receive a fine of $500 and
ten days in jail. Defendant rejected the bargain and pleaded
not guilty to the crime of leaving the scene of an accident.
His main defense was that the mental state of "knowledge" was
a key element of the crime, and that he lacked that mental
state at the time of the accident. Defendant maintained that
he could not remember causing the accident or leaving the
scene with knowledge that people had been harmed. The jury
found him guilty.
After the trial, defendant's counsel procured an
affidavit from one of the jurors (Crippen) stating that
another juror (Warren Stillings) had told the jury during
deliberations that, because defendant was drunk while
driving, he should be convicted of the other charge on that
basis alone. That juror also passed out a letter to the jury
addressing a jury's duty to resist judicial instructions and
acquit defendants in tax resistance cases. Counsel alleged
that these incidents were prejudicial and he moved for a new
trial. The court denied the motion, and later sentenced
defendant to thirty days in the county jail and a fine of
$1,000.00.
The following issues are raised on appeal:
1. Whether the verdict of the jury is invalid because
the presentation and endorsement of written material
advocating abuse of the jurors' role amounted to extraneous
prejudicial influence.
2. Whether defendant is entitled to a new trial because
one of the jurors was prejudiced against drunk drivers and
against following judicial instruction and the evidence.
 3. Whether the judge's conduct during the trial was
improper and prejudicial to the defense.
4. Whether the jury was improperly and prejudicially
instructed on the effect that an intoxicated condition may
have on the requisite mental state.
5. Whether the jury was improperly and prejudicially
instructed because the trial court failed to include
"knowledge of injury" as an element of the offense.
6. Whether the trial court prejudicially failed to
instruct the jury on physical impairment of the ability to
form the requisite mental state.
7. Whether the jury was improperly and prejudicially
instructed on the inference to be drawn from the failure to
produce a witness.
8. Whether the trial court improperly imposed a higher
sentence than one offered in plea-bargaining without
specifically justifying the increased sentence.
The first three issues raise serious questions about the
fundamental fairness afforded the defendant in his trial.
Clearly essential to due process in a criminal prosecution,
is a fair and impartial judge and a jury made up entirely of
fair and impartial jurors.
Defendant first argues that Juror Stillings'
encouragement to disregard the judge's instructions, and the
document advocating abdication of the juror's proper function
constitute extraneous prejudicial. influence which render the
verdict invalid.
In order to impeach this verdict with the statements of
a juror, the allegations must amount to extraneous
prejudicial influence upon the jury. Rule 606 (b) M.R. Evid.
It appears this information crosses the "inherent in the
jury process" boundary to the extent it promotes abdication
of the jury function in favor of policy implementation.
However, there is no evidence, other than the very nature of
the material and the statements, that this information had
any prejudicial effect on the other jurors. We refuse to
overturn the verdict on this ground because the defendant has
failed to show prejudice by the extraneous information.
State v. Maxwell (Mont. 1982), 647 P.2d 348, 352, 39 St.Rep.
1149, 1153; Erickson v. Perrett (1977), 175 Mont. 87, 91, 572

Defendant next argues that juror Warren StiIlings was
partial and prejudiced against drinking and drinking drivers
and that he concealed that fact during voir dire. Defendant
argues the juror's prejudice is evident from his conduct and
statements as reported in, the affidavit of another juror.
The issue has been discussed by this Court before.
"If one of the jurors is incompetent because of
actual bias entertained by him against the accused,
and conceals such incompetency on his - -voir dire,
this vitiates the jury as a whole. The accused
being entitled to a jury of twelve impartial men,
if he has but eleven, while the twelfth is hostile
to him, he has not the impartial jury which the
constitution and laws contemplate that he shall
have." State v. Mott (1903), 29 Mont. 292, 297, 74
P. 228, 730.
Respondent does not argue that this is not the
constitutional requirement. Instead, respondent argues that
the affidavit of juror Crippen is incompetent to impeach the
verdict under rule 606 (b) M.R.Evid. This argument is a non
sequitur. The rule simply does not come into play because
the allegations are submitted for their relevance to matters
prior to the jury's deliberations: the bias and prejudice of
juror Stillings. See C. Mueller, "Jurors' Impeachment of
Verdicts and Indictments in Federal Court Under Rule 606(b),"
57 Neb.L.Rev. 920, 956-57(1978). The inquiry here is not
into the validity of the verdict; rather, the competency of
Warren Stillings to sit as a juror in the case, and
defendant's constitutional right to twelve impartial jurors
are at issue.
Respondent also argues that the allegations of
misconduct are simply insufficient to support a finding of
bias in fact. We find the following instances of speech and
conduct by juror Stillings strongly tend to establish
pre-deliberative bias:
1. The juror advocated a position of disregarding the
law and instructions of the judge in favor of punishing the
defendant for his drinking and drunk driving.
2. The juror passed written materials which advocate
jurors usurp the power of the judge and legislature, and
encourage people to "get on the jury" to effect this policy.
3. The juror did not deny the challenge that he must
have perjured himself to sit on the jury.
We find these allegations to be sufficient to establish
denial of a fair and impartial jury.
Defendant assigns as error the trial court's
interruptions and volunteer objections. A trial judge must
take care to insure that he does not abandon his role as
impartial judge in favor of that of an advocate. People v.
Adler (Colo. 1981), 629 P.2d 569, 573; State v. Brown (Ariz.
1979), 602 P.2d 478, 481.
We have reviewed the entire record, and indeed the trial
court interrupted witnesses, and ma.de objections for the
county attorney.
We must grant the trial courts sufficient latitude that
they can conduct trials in an orderly and expeditious
fashion. In this case we believe the trial court became
involved but not to such an extent as to deny fundamental
fairness and due process of law.
 Since this case must be retried, it is necessary to
address issues regarding jury instructions on criminal mental
state. Defendant contends instruction No. 10 fai1.s to
accurately state Montana law on the effect intoxication may
have on mental state, and was so objected to at trial. We
agree.
The instruction is taken from section 45-2-203, MCA:
"An intoxicated person is criminally responsible
for his conduct unless his intoxicated condition is
involuntarily produced and deprives him of his
capacity to appreciate the criminality of his
conduct or to conform his conduct to the
requirements of law."
However, the instruction omits the following additional
sentence found in the statute:
"An intoxicated or drugged condition may he taken
into consideration in determining the existence of
a mental state which is an element of the offense."
It is clear from the compiler's comments that the
deleted sentence is not limited to cases of involuntary
intoxication. The commentator states:
"Sentence two states the exception to the general
rule to intoxication as a defense, by providing
that where an offense requires a specific mental
state, the intoxicated state of the offender may be
considered as a factor in determining whether that
required mental state has been established."
Montana Code Annotated Annotations, 45-2-203, Title
45, Crimes, pg. 64.
Since defendant's only defense was to the element of
knowledge, and was based on inability to form that menta.1
state because of a combination of intoxication and head
injury, failure to fully instruct the jury on this issue was
prejudicial.
We also find a related error in the following jury
instruction.
"To sustain the charge of LEAVING THE SCENE OF AN
ACCIDENT INVOLVING PERSONAL INJURIES, the State
must prove the following propositions:
 "First: That the Defendant was knowingly the
driver of a vehicle involved in the accident in
question;
"Second: That the accident resulted in personal
injuries to Don and Linda Russell;
"Third: That the Defendant knowingly failed to
remain at the scene to give information and render
aid to the injured."
This instruction sought to set forth the elements of the
crime as defined by section 61-7-103, MCA, which provides as
follows:
"Accidents involving death or personal injuries.
(1) The driver of any vehicle involved in an
accident resulting in injury to or death of any
person shall immediately stop such vehicle at the
scene of such accident or as close thereto as
possible, but shall then forthwith return to and in
every event shall remain at the scene of the
accident until he has fulfilled the requirements of
61-7-105. Every such stop shall be made without
obstructing traffic more than is necessary.
" (2) Any person failing to stop or to comply with
said requirements under such circumstances shall
upon conviction be punished by imprisonment for not
less than 30 days or more than 1 year or by a fine
of not less than $100 or more than $5,000 or both
such fine and imprisonment.

" (3) The division shall revoke the license or
permit to drive of any resident and any nonresident
operating privilege of any person so convicted for
the period prescribed in 61-5-208."
The instruction quoted above sought to delineate the
elements of the offense and divided those into three
categories. The trial court then sought to require knowledge
of two elements but not a third. This cannot be done.
Defendant argues that knowledge of personal injuries is
required. Respondent takes the position that to hold that
such knowledge is an element of the offense would, in the
words of the trial court, "make a mockery out of the
statute." The driver who leaves the scene of an accident may
be foreclosing any opportunity to acquire such knowledge.
Although Respondent's argument makes good policy,
Montana law leaves little room for interpretation.
 Section 45-2-103, MCA provides in part:
" (1) A person is not guilty of an offense, other
than an offense which involves absolute liability,
unless, with respect - -
to each element described by
the statute defining the offense, he acts while
having one of the mental states [purposely,
knowingly, negligently]. . ..
"(2) If the statute defining an offense prescribes
a particular mental state with respect to the
offense as a whole without distinguishing among the
elements thereof, the prescribed mental state
applies to each such element. " (emphasis added. )
Section 45-2-104 provides:
"Absolute liability. A person may be guilty of an
offense without having, as to each element thereof,
one of the mental states [purposely, knowingly, or
negligently] only if the offense is punishable by a
fine not exceeding $500 and the statute defining
the offense clearly indicates a legislative purpose
to impose absolute liability for the conduct
described."
Section 61-7-103, MCA under which defendant was charged,
is clearly not an offense of absolute liability. An element
of the offense is "an accident resulting in injury to or
death of any person." Thus Montana. law clearly requires some
mental state with respect to this element of the offense.
In State v. Parish (Idaho 1957), 310 P.2d 1082, the
Idaho court interpreted an identical "hit and run" statute,
and held that knowledge of the accident and knowledge of the
resulting injury to another were essential elements of the
offense.
"Knowledge on the part of the accused of the
accident resulting in injury to another person does
not require a showing by the state, by direct
testimony, that the accused actually knew that the
motor vehicle he was driving had struck some one.
All of the facts and circumstances indicative of
knowledge of such an accident may be considered by
the jury in its determination of the fact of
knowledge." - at 1084.
Id.
We agree with the rationale expressed by the Idaho
court. Knowledge of personal injury or death can simply be
inferred from the seriousness of the accident. Failure to
r e q u i r e a showing o f knowledge w i t h r e s p e c t t o e a c h e l e m e n t

was p r e j u d i c i a l e r r o r .

Defendant objects to the trial court's failure to

i n s t r u c t on t r a u m a t i c a m n e s i a . It is sufficient t o instruct

t h a t d e f e n d a m t must h a v e a c t e d k n o w i n g l y , and t o d e f i n e t h i s

mental s t a t e f o r t h e jury. W e f i n d no e r r o r on t h i s i s s u e .

Defendant assigns e r r o r t o an instruction allowing an

inference of unfavorable testimony to be drawn from the

failure of either party to produce a material witness.

Although we do not approve of an instruction that might

confuse a jury about t h e d e f e n d a n t ' s burden in a criminal

p r o c e e d i n g , w e f i n d no e r r o r g i v e n t h i s f i n a l s e n t e n c e o f t h e

instruction:

"The j u r y w i l l alwa-ys b e a r i n mind t h a t t h e law
n e v e r imposes on a d e f e n d a n t i n a c r i m i n a l c a s e t h e
burden or duty of c a l l i n g any w i t n e s s e s or
producing any evidence."

The t r i a l c o u r t i n v o l v e d i t s e l f i n t h e plea bargaining

p r o c e s s by r e p r e s e n t i n g t o d e f e n d a n t ' s c o u n s e l t h a t t h e b e s t

o f f e r o f s e n t e n c i n g was 10 d a y s i n j a i l a n d a f i n e o f $500.

A f t e r r e j e c t i o n o f t h e p l e a b a r g a i n and t r i a l , d e f e n d a n t was

s e n t e n c e d t o 30 d a y s and a f i n e o f $1,000. The c o u r t c l e a r l y

i s n o t bound by t h e f i r s t o f f e r .

Under the rule propounded by this Court in S t a t e v.

Baldwin (Mont. 1 9 8 1 ) , 629 P.2d 222, 38 St.Rep. 882, and S t a t e

v. Tate ( 1 9 8 2 ) , 196 Mont. 248, 639 P.2d 1149, a t r i a l j u d g e

must "specifically point out the factors that justify the

increased sentence." This r u l e w i l l apply t o t h e sentencing

o f d e f e n d a n t on r e t r i a l s h o u l d d e f e n d a n t b e c o n v i c t e d .

The c a s e i s remanded t o t h e D i s t r i c t Court f o r a new

t r i a l i n accordance with t h i s opinion.
We concur:

a,m=JL-9 $ &
.4&
Chief Justice