State v. Stringer

No. 94-155
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

STATE OF MONTANA,
Plaintiff and Respondent,

APPEAL FROM: District Court of the Eighth Judicial District,
1n and for the County of Cascade,
The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
WilliamF. Hooks, Appellate Defender Office, Helena,
Montana; Nathan J. Hoines, Great Falls, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana;
Patrick L. Paul Cascade County Attorney, Great
Falls, Montana

Submitted on Briefs: January 26, 1995
Decided: June 14, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

Appellant Stuart Stringer was charged by Information with one
count of aggravated burglary, a felony in violation of § 45-6-

204(Z) (a), MCA, one count of aggravated kidnapping, a felony in

violation of § 45-5-303(l) cc), MCA, and two counts of assault in

violation of 5 45-5-202(Z) (a) and (b), MCA. A jury trial was held

in the Eighth Judicial District Court, Cascade County on November

B-10, 1993, The court dismissed the aggravated burglary count at

the conclusion of the State's case-in-chief, and the jury acquitted

Stringer on one of the felony assault charges. Stringer was

convicted of the charges of aggravated kidnapping and one count of

assault. After sentencing, the District Court entered judgment

against Stringer, who appeals from this judgment. We reverse and

remand.
Stringer raises four issues on appeal:

1. Whether the District Court erred in permitting
testimony concerning the battered woman syndrome?

2. Whether the prosecutor engaged in misconduct?

3. Whether there was sufficient evidence to sustain
the convictions?

4. Whether the District Court erred in refusing to
examine a juror, or to grant relief after being
informed that a juror may have concealed material
information during voir dire thus raising the
possibility of bias and partiality?
BACKGROUND FACTS

Stuart and Kathy Stringer had recently divorced prior to the

incidents giving rise to the charges against Stuart. At the time

the incidents took place, Kathy was living in a basement apartment

2
with the Stringer's two daughters, A.S. and I.S. The couple's
three sons were living with Stuart. Kathy and Stuart remarried
shortly after the events occurred.

On April 24, 1993, Kathy and a friend, Ray Rogers, went to a

party at a house belonging to Bob and Cheryl Dumas. According to

the testimony of Kathy, Ray and Bob, the partygoers spent the

evening consuming a great quantity of whiskey and beer, talking,

and playing video games. During the course of the night, they all

became extremely intoxicated.

Kathy spent the night at the Dumas' house, and upon awakening
at approximately 5:00 or 6:00 a.m., she drank some more whiskey.

The next thing Kathy remembers is being awakened by her ex-husband

Stuart. At this time Kathy was in bed with Ray who had also spent
the night at the Dumas' house.

In a written statement given to the Great Falls police on

April 26, 1993, Kathy described what transpired next:

At about 9:30 a.m., I was in bed at Robert Dumas['] house
at #17 Fisher Trailer Park and was awakenled] by Stuart
Stringer, my ex[-lhusband with a gun pointed in my face
and Ray Rogersi’l face. Stuart said wake up Ray and
Kathy you . . bitch, I'm going to kill you. I am foggy
about the rest but to the best of my knowledge, Robert
Dumas came in front of the gun and told Stuart no, not in
my house Stuart. Stuart took off. I got dressed and Ray
took me to my house. I went and got something to eat at
Taco Treat and then went home and went to sleep.

However, Kathy's, Ray's and Robert's trial testimony was

considerably different from Kathy's written statement. All three

testified that Stuart had awakened Kathy and Ray who were in bed

together, and that Kathy and Stuart argued and exchanged

profanities. Kathy testified that she did not remember if Stuart

3
had a gun with him, but was certain that he did not point a gun at

her or threaten her. Ray testified that Stuart did not threaten to
kill Kathy or Ray, and that he was certain Stuart did not have a

gun. Robert testified that Stuart had a gun which was in a holster

which was tucked into his pants. According to Robert, the

holstered gun began to slip out of Stuart's pants while he and

Kathy were arguing, and Stuart grabbed it and placed it back into

his pants before it fell. The argument ended when Robert

interceded and asked both Kathy and Stuart to leave.

Later that evening, Stuart went to Ray's apartment and asked
Ray to accompany him to Kathy's apartment because he wanted to talk

to her and needed a "witness." Ray agreed to accompany Stuart, and

the two men walked to Kathy's apartment. That evening, at the

request of the police, Kathy wrote the following statement

regarding what transpired upon Stuart's arrival:

About 11:15 p.m. I was being pulled out of bed by my hair
by Stuart. EHle threw me against the wall and started to
stab at me with his pocket knife. Glenda, the lady
upstairs yelled at Stuart and told Stuart to leave. She
called 911 - Stuart made me come out with him and Ray
Rogers and walk to talk - he kept slashing out at me with
the knife. He made Ray and me walk down the alley to
15th St. and he kept on telling Ray and I he was going to
kill all of us including himself. He kept on slaping
[sic] me up in my mouth and pushing Ray and making me
tell him I was going to come back home and how I know I
love him and how I was causing problems with him and Ray
and how I am and will belong to him. Also he had Ray
scared to death. We walked back home and police were
there and arrested him.

At trial, Kathy gave a different version of the events

occurring that night and testified that the statement she wrote was

false. Kathy stated that she wrote a false statement because she

4
was still intoxicated and embarrassed at having been caught in bed
with Ray. Kathy then stated that on the night of April 25, 1993,

she was lying in bed holding a pocket knife and contemplating

suicide by cutting her wrists. Stuart came in to her room and
attempted to take the knife. The two struggled with the knife and
Kathy testified that she, and maybe Stuart, received cuts. Kathy

then stated that she went for a walk voluntarily with Stuart so

that they could talk.

Kathy mentioned at trial that Stuart was always welcome at her

house, and that she voluntarily went on a walk with Stuart and Ray

in an attempt to "work things out." She also stated that Stuart

did not threaten to kill her or Ray during the walk and that

neither she nor Ray were afraid of Stuart at this time.

Great Falls Police Officers Carey Tamborino and John Catlett
were dispatched to the scene that night as a result of a 911 call.

Officer Tamborino testified that upon arriving at Kathy's
apartment, he met Glenda King, Kathy's landlady who lived upstairs

from Kathy. Glenda explained to Officer Tamborino that Stuart had

come to the residence and that she had told Stuart that she did not

want him in the house. According to officer Tamborino, Glenda

stated that Stuart had a knife, and walked down the stairs to

Kathy's apartment and left blood on the railing. She reported that

she heard Stuart shout, "you're going to die with me here if you

don't come with me." Glenda also told Officer Tamborino that she

heard a struggle and then saw Kathy, Stuart, and Ray leave the

apartment.
 Officer Tamborino also spoke with A.S. and I.S., Stuart and

Kathy's daughters, that night at the scene. A.S. told him that her
dad was angry about the recent divorce and that when he arrived

that evening she believed he was drunk. A.S. related that Stuart

went downstairs, struggled with Kathy and took her out of the

apartment at knife point, and stated that he might kill her.

Officer Tamborino stated that I.S. appeared to be hysterical, that

she was crying and saying "he's going to kill her."

Shortly thereafter, Kathy, Stuart and Ray returned to the

apartment. Officer Tamborino observed that Kathy had a cut on her

wrist, and on her lip. Officer Catlett patted Stuart down, but

found no weapons on him. He then placed Stuart under arrest and

transported him to the county jail.
Officer Tamborino questioned Ray about the incident.

According to Tamborino's report which he wrote up at the end of his

shift, Ray told him that Stuart had come to his apartment that

night and asked him to accompany him to Kathy's apartment. When

asked why Stuart had made this request, Ray related that Stuart had

said "I'm afraid I'm going to kill her." Ray also indicated that

he was afraid of Stuart, and that Stuart had been brandishing a

handgun earlier in the day.

At trial, A.S., Ray, and Glenda King gave testimony which was

contradictory to the statements they had given to Officers

Tamborino and Catlett. Their testimony at trial tended to

demonstrate that Stuart did not commit the crimes charged.
Prior to trial, the State gave notice of its intention to call

6
Shirley LaRocque, a client advocate for a Great Falls' battered
woman 1 s shelter, as an expert witness. The purpose of Ms.
LaRocque's testimony was to explain the battered woman syndrome and

its effect on spouses and children.

On the first day of trial, the defense moved to exclude any

prior acts evidence regarding Stuart's prior criminal history and

domestic abuse charges, including testimony from Ms. LaRocque
concerning prior abuse between Stuart and Kathy on the basis that

no Just notice had been given. The court acknowledged that because

the testimony would involve explaining a cycle of abuse, it raised

Just notice requirements. However, the court allowed Ms. LaRocque

to testify, on the condition that she not testify to any prior acts

of abuse. Ms. LaRocque testified concerning the cycle of domestic

abuse, and explained that it is not uncommon for a battered woman
to recant or change her story at the time of trial.

The court dismissed the aggravated burglary charge at the end

of the State's case, on the grounds that there was insufficient

evidence. The jury convicted Stuart of two of the charges: (1)

aggravated kidnapping; and (2) assault. The jury found Stuart not

guilty of the second assault charge. Additional facts will be

presented as are necessary for discussion of the issues.

1. EXPERT TESTIMONY

The first issue Stuart raises on appeal is that evidence of

the battered woman syndrome is not admissible because it was

offered to bolster Kathy's credibility. Stuart also attacks the

admissibility of battered woman syndrome evidence on several other
grounds. However, we shall limit our discussion to the above
mentioned argument as it is dispositive.
Standard of Review
Rulings on the admissibility of evidence are left to the sound
discretion of the trial court. Mason v. Ditzel (1992), 255 Mont.
364, 370-71, 842 P.2d 707, 712. We review a district court's
evidentiary rulings to determine whether the court abused its
discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d
1257, 1263.
Use of Battered Woman Svndrome Evidence.
Parties have generally sought to introduce evidence concerning
the battered woman syndrome for two purposes: (1) as an affirmative
defense of justifiable use of force in a criminal trial, See State
v. Kelly (N.J. 1984), 478 A.2d 364; or (2) to provide a possible
explanation for the abuse victim's recantation and to impeach her
subsequent testimony that she had lied in her original statement.
See State v. Borrelli (Corm. 1993), 629 A.2d 1105. This Court has
never directly ruled on whether evidence of the syndrome can be
used as an affirmative defense, but we have recognized that this
evidence has been used in other jurisdictions. State v. Hess
(1992), 252 Mont. 205, 828 P.2d 382. In addition, while we have
never directly ruled on whether it is permissible to allow expert
testimony to explain why an abused woman might recant earlier
statements at a criminal trial against her abuser, we have held
that it was impermissible to offer testimony concerning the
battered woman syndrome to bolster a female defendant's

8
credibility. State v. Dannels (1987), 226 Mont. 80, 734 P.2d 188.
In Dannels, we also acknowledged that battered woman syndrome
evidence can be used to prove that a criminal defendant did not
have the requisite state of mind to commit the crime. Dannels, 734
P.2d at 192. Therefore, this case presents the first opportunity
for us to decide whether battered woman syndrome evidence can be
used by the prosecution in a criminal trial to impeach the
complaining witness' trial testimony, and to explain why a witness
recants earlier statements at trial.
Testimonv used to bolster victim's credibilitv.
Relying on Dannels, Stuart argues that a person may not
bolster his or her credibility and explain inconsistent statements
were made because he or she suffered from the battered woman
syndrome. In Dannels, the defendant was charged with deliberate
homicide in connection with the death of her husband. When the
police questioned her about the incident, Dannels told the police
that she received the bruises during the course of an attack by
robbers who broke into their motel room, assaulted her, and killed
her husband. However, later examination by a physician revealed
that the bruises were old injuries and could not have been
sustained on the night in question. Dannels, 734 P.2d at 191. At

trial, Dannels sought to introduce evidence concerning the battered
woman syndrome to explain why she lied to the police about the
origin of her bruises. This Court acknowledged that such evidence
could be used to prove that the defendant did not have the
requisite state of mind to commit the offense in accordance with §

9
46-14-102, MCA. However, we held that the evidence was
inadmissible because it was being offered for the purpose of
bolstering the defendant's credibility. Dannels, 734 P.2d at 192-

93.

However, the purpose for which evidence of the syndrome was

sought to be introduced in Dannels is distinguishable. In Dannels,

the criminal defendant sought to introduce evidence of the battered

woman's syndrome to bolster her credibility. She did not offer the

evidence in support of her own self defense theory. In the instant

case, the evidence was offered by the prosecution, to provide an

understanding as to why the complaining witness might recant her
earlier statement that she suffered abuse at the hands of her

spouse. The overwhelming trend of other jurisdictions is to allow
evidence regarding the battered woman syndrome. Expert testimony

concerning battered woman syndrome is accepted in at least thirty-

one states. Bechtel v. State (Okl.Cr. 1992), 840 P.2d 1, 7.

The "battered woman syndrome" is the term used to define the

"common characteristics that appear in women who are abused

physically and psychologically over an extended period of time by
the dominant male figure in their lives." Kelly, 478 A.2d at 371.

Because the average juror might not have experience or knowledge

about the battered woman syndrome, expert testimony is used to

explain recantation by the complaining witness.

The relevance of battered woman syndrome evidence has been

aptly described as follows:
A battered woman may act in ways that are
incomprehensible to the average person. She may tolerate

10
 physical abuse for years, hide her abuse, delay reporting
even severe abuse to authorities or friends, or recant
and attempt to have charges against her abuser dropped.
Consequently, when the state's key witness, the battered
woman, testifies against her batterer, she may appear to
be fabricating her story. If the jury does not
understand why the woman behaved in this manner, it will
be unable to assess the evidence correctly. Thus, when
a batterer is prosecuted, the state needs expert
testimony to educate the jury about battered women in
order to enable the jury to determine the facts in issue.
(Footnotes omitted.)

Schroeder, Usinq Battered Woman Svndrome Evidence in the

Prosecution of a Batterer, 76 Iowa L. Rev. 553 (1991).

Jurisdictions which have approved battered woman syndrome
evidence to explain a victim's recantations do so on the basis that

the expert's testimony would provide a reasonable explanation for
the victim's recantation. State v. Bednarz (Wis.Ct.App. 1993), 507

N.W.Zd 168; State v. Borrelli (Corm. 19931, 629 A.2d 1105; Arcoren

v. U.S. (8th Cir. 1991), 929 F.2d 1235. In Bednarz, the Wisconsin

Court of Appeals explained:

The battered woman's syndrome is recognized as a
subcategory of posttraumatic stress disorder. While
there are various possible explanations for [the
victim's] recantation, one explanation could be that the
recantation is consistent with this form of posttraumatic
stress disorder. An untrained lay person does not know
that recantation can be suggestive of posttraumatic
stress in the form of the battered woman's syndrome. The
expert opinion was thus permissible to enlighten the jury
and allow it to intelligently consider the syndrome as
one possible explanation for [the victim's1 behavior.

Bednarz, 507 N.W.Zd at 172; see also, State v. Riker (Wash. 1994),

869 P.2d 43, 47 "[the battered woman syndrome] is considered a

subset of post-traumatic stress disorder. . . . 'I

Expert testimony in Montana is governed by Rule 702,

M.R.Evid., which provides:
11
 If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion
or otherwise.

Here, Stuart is not contesting the general admissibility of

evidence regarding the battered woman syndrome, rather, he asserts
that it cannot be used to bolster a witness' credibility. It is
well established that an expert cannot be allowed to comment on the

credibility of an alleged victim. State v. Harris (19911, 247

Mont. 405, 409-10, 808 P.2d 453, 455; State v. Brodniak (1986), 221
Mont. 212, 222, 718 P.2d 322, 329. The reason for this rule is

that the question of credibility lies within the province of the

jury, and expert testimony regarding credibility invades the jury's
function by placing a "stamp of scientific legitimacy" on the

victim's allegations. Harris, 808 P.2d at 455.

However, in this case, the evidence was not offered to bolster
Kathy's testimony, but to provide the jury with an explanation for

the inconsistencies in her testimony. Furthermore, the expert did

not comment as to which of Kathy's statements were more credible or

offer an opinion on whether Kathy is a battered spouse. Rather,

she merely provided the jury with information to aid the jury in

evaluating the evidence. This type of limited testimony does not

invade the jury's role in determining the credibility of witnesses.

Arcoren, 929 F.2d at 1241.

While we hold that expert testimony on battered woman syndrome

should generally be admissible, in this case, the State failed to

lay an appropriate foundation establishing that Kathy was a
12
battered spouse. Therefore, testimony about how battered women act
was irrelevant and should not have been admitted.

Dr. Lenore Walker, a psychologist who was preeminent in

developing the battered woman syndrome, explains in her book, The

Battered Woman (1979)l, that the violence inherent in a battering

relationship is not random, but follows an identifiable cycle.

The battering cycle has "three distinct phases": the tension

building phase; the explosion or acute battering phase; and the

calm, loving respite (often called the honeymoon phase). During

the first phase, minor battering incidents may occur. The woman

attempts to minimize the incidents and calm the batterer to prevent

the violence from escalating. As tension increases, it becomes

more difficult for the coping techniques to work, which escalates

into the second stage, the battering incident. This stage is

characterized by the uncontrollable nature of the abuse (injury,
brutality and sometimes death). The battering incident is followed

by the third phase where the couple makes up. During this phase,

the batterer exhibits loving and caring behavior and typically begs
for forgiveness and promises the battering will never happen again.

Lenore E. Walker, The Battered Woman 56-70 (1979). Dr. Walker

also explains that "in order to be classified as a battered woman,

the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once."

Lenore E. Walker, The Battered Woman xv (1979).

Many jurisdictions considering the admissibility of expert

1 . Harper & Row Publishers.

13
testimony on the battered woman syndrome require proof that the

witness was the victim of two cycles of abuse. See for example
State v. Koss (Ohio 199(J), 551N.E.Zd 970; State v. Borrelli (Corm.
1993), 629 A.Zd 1105; Bechtel v. State (1992), (Okl.Cr. 1992), 840
P.2d 1. It follows then that there first must be evidence of a
battered victim before expert testimony on the syndrome may be

admitted. Koss
-J 551 N.E.Zd at 974, "a defendant attempting to

admit expert testimony regarding the battered woman syndrome must

offer evidence which establishes herself as a 'battered woman."'

See also Borrelli, 629 A.Zd at 1115 n.15.

While we decline to set hard and fast foundational
requirements, preferring instead, to leave those to the sound

discretion of the trial court on a case by case basis, the party

seeking to introduce battered woman syndrome evidence must lay an
appropriate foundation substantiating that the conduct and behavior

of the witness is consistent with the generally recognized symptoms

of the battered woman syndrome, and that the witness has behaved in

such a manner that the jury would be aided by expert testimony

which provides a possible explanation for the behavior. It also is

important to re-emphasize that the expert may not testify to or

comment upon the credibility of the witness.

Since the evidentiary foundation will likely involve offering

other acts evidence showing prior completed cycles of abuse,

counsel seeking to introduce battered spouse syndrome evidence must

file the appropriate notice according to State v. Just (1979), 184

Mont. 262, 602 P.2d 957, as modified in State v. Matt (1991), 249

14
Mont. 136, 814 P.2d 52. If the court determines that the proffered
other acts evidence is not admissible under the tests established
in Just and -I the court may nevertheless, hear the foundation
Matt
testimony outside the presence of the jury and appropriately limit
the testimony presented to the jury.
In the instant case, the State did not file a modified Just
notice, and was therefore precluded from offering other acts
testimony. Moreover, at trial, the State failed to demonstrate
that Kathy was the victim of prior cycles of abuse. Accordingly,
we hold that the expert's testimony should have been excluded
because the State failed to lay an appropriate foundation for the
expert's testimony by establishing or offering any evidence that
Kathy was a battered spouse.
2. PROSECUTORIAL MISCONDUCT
Stuart contends that the prosecutor engaged in misconduct
when, during closing argument, the prosecutor characterized the
witnesses favorable to the accused as liars, asserted his personal
opinion on Stuart's guilt, referred to matters not in evidence, and
insinuated that defense counsel was keeping vital information
probative of guilt from the jury. Stuart asserts that the
prosecutor's misconduct denied him his right to a fair trial as
guaranteed by the Sixth Amendment of the United States Constitution
and Article II, Section 24, of the Montana Constitution. We agree.
We initially note that in each instance of alleged misconduct,
defense counsel objected to the prosecutor's statements, and
therefore, Stuart meets the contemporaneous objection rule at § 46-

15
20-104(2), MCA.
Stuart asserts that the first instance of prosecutorial
misconduct occurred when the prosecution characterized Kathy and

the Stringer children as liars during his initial closing argument.

The prosecutor stated:

A domestic situation should be an environment where
there's nurturing between the spouses and children, where
there's love, where there's trust, where there's things
being done in caring for each other.

But what do we see in this particular case? We see
a family that's ripped apart. We see a wife that's
willing to lie, be embarrassed, blame herself for the
defendant's acts.

We see children that are taught to lie and despise
authority. We see friends who are asked to lie. .

We see children that live in a constant state of
hysteria. 1t's no wonder that two of them are in the
psych ward at the hospital as we talked today. It's no
wonder that another is in a special program at --

According to Stuart, the second incident of misconduct

occurred when the prosecutor expressed his personal opinion and

belief that Stuart was guilty of the crimes charged when he stated

in rebuttal closing argument:

Mr. Stringer is the defendant. He's is one [sic] that's
charged. He's the one that committed the crimes.
I have a strong belief in this case that these
crimes were committed.

Finally Stuart argues that the prosecution insinuated that the

defense had suppressed information relative to guilt when the

prosecution stated:
What the defense hasn't disclosed to you is that --
he talked about probable cause. They talked about
reasonable doubt. They talked about burden of proof.
They don't disclose to you what's necessary for us to
bring these charges: The affidavit of probable cause,

16
 approval of the Court, motions to dismiss by them,
rulings by the Court.

This Court has stated repeatedly that it is highly improper to
characterize either the accused or the witnesses as liars or offer

personal opinions as to credibility. State v. Arlington (1994),

265 Mont. 127, 157, 875 P.2d 307, 325; State v. Rodgers (1993), 257

Mont. 413, 417, 849 P.2d 1028, 1031; State v. Musgrove (19781, 178

Mont. 162, 172, 582 P.2d 1246, 1252-53. In addition, we have

recognized that the Rules of Professional Ethics prohibit a lawyer

from asserting personal opinions as to the credibility of a

witness, or the guilt or innocence of the accused. State v.

Stewart (1992), 253 Mont. 475, 482-83, 833 P.2d 1085, 1089-90;

Mussrove, 582 P.2d at 1252-53.
The State contends that the prosecutor did not give a personal

opinion regarding the witnesses' credibility, but was merely

commenting on evidence that Kathy and other witnesses had changed

their stories from the time they had originally talked to the

police. While a prosecutor may point out and comment on

contradictions and conflicts in testimony, ~'[ilt was the task of

the jury to determine which testimony and evidence was more

believable." Stewart, 833 P.2d at 1090. We are not suggesting

that it is reversible error every time counsel mentions the word

"lie" in closing argument. However, in this case, the prosecutor

commented so directly on the credibility of the witnesses, and

called them liars in so blunt a manner that we cannot conclude that

he was merely commenting on or pointing up inconsistencies in the

testimony.
17
 It was also improper for the prosecutor to suggest that the
trial court had already made findings indicative of guilt and that

defense counsel had kept these findings from the jury. By

referring to the "affidavit of probable cause" and rulings by the

court concerning motions to dismiss, the prosecution not only
commented on evidence which was not in the record, but implied that

the court had approved the charges and passed judgment on Stuart's

guilt.
The reasons why prosecutorial comments about the guilt of an

accused are improper have been set forth at length in State v.
Campbell (1990), 241 Mont. 323, 328-29, 787 P.2d 329, 332-33.

Among the reasons are that: (1) a prosector's expression of guilt

invades the province of the jury and is an usurpation of its

function to declare the guilt or innocence of an accused; (2) the

jury may simply adopt the prosecutor's views instead of exercising

their own independent judgment as to the conclusions to be drawn
from the testimony; and (3) the prosecutor's personal views inject

into the case irrelevant and inadmissible matters or a fact not

legally proved by the evidence, and add to the probative force of

the testimony adduced at the trial the weight of the prosecutors'

personal, professional, or official influence.

This Court has been unequivocal in its admonitions to

prosecutors to stop improper comment and we have made it clear that

we will reverse a case where counsel invades the province of the

jury by characterizing a party or witness as a liar, or his

testimony as lies. Arlinqton, 875 P.2d at 325. After considering

18
the prosector's closing and rebuttal arguments in full, we hold
that Stuart was prejudiced by the prosecutor's improper comments.

3. INSUFFICIENT EVIDENCE

At the close of the State's case-in-chief, Stuart moved for a

directed verdict on the basis that there was insufficient evidence

to support a finding or verdict of guilty. The trial court agreed
that there was insufficient evidence to support the aggravated

burglary charge and dismissed that charge, and the remaining three

charges went to the jury. The jury found Stuart guilty of two of

the remaining three charges, felony assault and aggravated

kidnapping. Stuart contends that the District Court erred in
denying his motion for a directed verdict because the only proof of

these crimes was Kathy's prior written inconsistent statement.

Section 46-16-403, MCA, allows a trial court to dismiss a
criminal action at the close of the prosecution's case-in-chief,

when the evidence is insufficient to support a finding or verdict

of guilty. An accused is entitled to an acquittal "if reasonable

persons could not conclude from the evidence taken in a light most

favorable to the prosecution that guilt has been proven beyond a

reasonable doubt." State v. Mummy (1994), 264 Mont. 272, 276, 871

P.2d 868, 870. The decision to direct a verdict lies within the

sound discretion of the trial court and will not be reversed absent

an abuse of discretion. Mummy, 871 P.2d at 870.

According to Rule 801(d) (1) (A), M.R.Evid., prior inconsistent

statements are not hearsay, and thus are admissible as substantive

evidence if:

19
 The declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement,
and the statement is (A) inconsistent with the
declarant's testimony .

See also, State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d

1343, cert. denied, 499 U.S. 891, 101 S.Ct. 252, 66 L.Ed.Zd 118.

However, in State v. White Water (1981), 194 Mont. 85, 88, 634

P.2d 636, 638, we held that an "unreliable prior inconsistent

statement should not be the sole, substantive evidence" in a

criminal conviction. While a prior inconsistent statement standing

alone is insufficient to sustain a conviction, a prior inconsistent

statement which is corroborated by other circumstantial evidence

may suffice. State v. Pinkerton (1995), 891 P.Zd 532, 535, 52

St.Rep. 186, 188.

In the instant case, we conclude that the circumstances under

which Kathy's prior inconsistent statements were given were not

unreliable. The statements were written out and signed by her on

April 25, 1993, shortly after incidents occurred. Although Kathy

had been drinking heavily on April 24, 1993, both officers

Tamborino and Catlett testified that Kathy did not appear to be

intoxicated. In addition, Kathy's statements were supported by

other circumstantial evidence: (1) Kathy had cuts, scrapes and

bruises on her body which were photographed by officer Catlett and

introduced at trial; (2) the officer's testimony regarding I.S's

hysterical appearance and statement, "he's going to kill her" which

they observed shortly after arriving at the scene; (3) the fact

that Kathy had left for a walk at 11:OO at night without wearing a

coat or socks; and (4) the officer's testimony that the statements

20
of A.S., Glenda King, and Ray Rogers, taken that night at the
scene, were consistent with one another.
Construing the evidence in a light most favorable to the
prosecution, we conclude that the evidence was sufficient to
withstand a motion for a directed verdict and hold that the
District Court properly denied Stuart's motion.
4. JUROR MISCONDUCT
After voir dire had been completed and the jury had been
sworn, but before any witnesses were called, defense counsel
advised the trial court that Kathy had told him that she knew one
of the jurors, D.M.. In chambers, counsel related that there had
been problems between Kathy, D.M., and D.M.'s daughter. Defense
counsel asked the court to talk to the juror, to determine if the
juror did in fact know Kathy, and if so, whether she would be
prejudiced against Stuart because of this fact. The court declined
to interview D.M., concluding that since she did not mention that
she knew Kathy when asked this during voir dire, "we must assume
that . although Mrs. Stringer or some witness may know this
lady, this lady doesn't really know them to that degree." Defense
counsel then asked if he could make an offer of proof, which the
court denied.
Article II, Section 24 of the Montana Constitution and the
Sixth Amendment to the United States Constitution, each guarantee
a criminal defendant the right to a fair and impartial jury. A
juror's nondisclosure of information requested, may constitute
misconduct and a denial of the accused's right to a fair and

21
 impartial jury if juror's nondisclosure amounts to "intentional
concealment." State v. Bauer (19841, 210 Mont. 298, 310, 683 P.2d
946, 953.

The State claims that the defense failed to demonstrate

intentional concealment even though it had the opportunity to do so

at the post-trial hearing on the defense's motion for a new trial.

However, we indicated in State v. Eagan (19781, 178 Mont. 67, 78,

582 P.2d 1195, 1201, and in State v. Baugh (1977), 174 Mont. 456,

571 P.2d 779, when during trial, the court is informed of

misconduct, the juror should be interviewed by the court, and the

court should inquire of the panel before the verdict is announced

if the misconduct tainted the panel. Here, the District Court had

the opportunity to question the juror, at the time the issue was

brought before it, but chose not to do so.
1n making its decision, the court relied on an assumption that

although Kathy Stringer may know the juror, "this lady [the juror1

doesn't really know them to that degree." The court's assumption

was without factual basis, and the court should have interviewed

the juror to determine if there was prejudice.

It is the rule in this state that if jury misconduct is
shown tending to injure the defendant, prejudice to the
defendant is presumed; however, the presumption is not
absolute and may be rebutted by the use of testimony of
the jurors to show facts which prove that prejudice or
injury did not or could not occur.

State v. Eagan (1978), 178 Mont. 67, 79, 582 P.2d 1195, 1202

citing State v. Jackson (18901, 9 Mont. 508, 522, 24 P. 213, 216

Putro v. Baker and Mannix Electric, Inc. (1966), 147 Mont. 139

147, 410 P.2d 717, 722. The court's assumption as to the juror's

22
state of mind or knowledge was not a valid basis to reject the

prejudice inherent in the circumstances. We hold that the court's

failure to investigate the matter at the time it was brought to its

attention by defense counsel was error.

Reversed and remanded for further proceedings consistent with

this opinion

23
 June 14, 1995
CERTIF?I(-Arr; nl? CERVTP’
*z IIY VI YYI., I-u

I hereby certify that the following certif ied order was sent by United States prepaid,
to the following named:

WILLIAM F. HOOKS
Appellate Defender Office
P.O. Box 200145
Helena, MT 59620-0145

NATHAN J. HOINES
Attorney at Law
600 Central Plaza, Suite 316
Great Falls, MT 59401

HON. JOSEPH P. MAZUREK, Attorney General
Jennifer Anders, Assistant
Justice Bldg.
Helena, MT 59620

Sue Weber
County Attorney
Cascade County Courthouse
Great Falls, MT ‘59401

ED SMITH
CLERK OF THE SUPBEME COURT
STATE OF MONTANA