NO. 94-196
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
GARY DENNIS McMAHON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Meagher,
The Honorable Roy D. Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bruce E. Becker, Attorney at Law, Livingston,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Micheal
Wellenstein Ass't Attorney General, Helena, Montana
John V. Potter, Meagher County Attorney, White
Sulphur Springs, Montana
Submitted on Briefs: March 16, 1995
Decided: May 4, 1995
Filed:
Justice W. William Leaphart delivered the Opinion of the Court
Gary Dennis McMahon (McMahon) appeals his conviction in the
Fourteenth Judicial District, Meagher County, of misdemeanor
assault and two counts of felony intimidation. We reverse.
Since this matter is being remanded for retrial, we set forth
only enough facts to put the issue into proper context.
On September 16, 1993, McMahon took a high dosage of Valium
and codeine, brandished a rifle, and the sheriff was summoned. The
sheriff called to the scene found McMahon laying face down on the
floor of his trailer. The sheriff also found two pill bottles and
took them from the trailer to ascertain the threat the pills posed
to McMahon. McMahon allegedly came from the trailer with a knife
and threatened the sheriff physically and verbally until the
bottles were given back to McMahon. McMahon was handcuffed and
bound at the knees and ankles, and strapped to a gurney. It is
alleged that McMahon threatened to kill the sheriff and sheriff's
wife and threatened ambulance and hospital personnel. He was
charged with misdemeanor assault and two counts of felony
intimidation.
Six issues are presented:
1. Was there sufficient evidence to support McMahon's
conviction for misdemeanor assault.
2. Was the information charging McMahon with intimidation
defective?
3. Was McMahon properly charged with intimidation?
4. Did the District Court err in denying McMahon's motion
for a directed verdict?
5. Did the District Court err in denying McMahon's motion
for mistrial when, during voir dire and in front of other
prospective jurors, several prospective jurors commented on
McMahon's reputation and one prospective juror commented on her
fear of McMahon arising out of the incident in question?
6. Whether McMahon's intoxication rendered him incapable of
forming the requisite criminal intent.
Since we reverse on the basis of improper juror comments
during voir dire (Issue 5) we need not discuss Issues 1, 2, 3, 4,
and 6.
Did the District Court err in denying McMahon's motion for
mistrial when, during voir dire and in front of other prospective
jurors , several prospective jurors commented on McMahon's
reputation and one prospective juror commented on her fear of
McMahon arising out of the incident in question?
When asked about the difficulty of following the judge's
instructions regarding the presumption of innocence, prospective
juror P.H. stated that "I was kind of involved, you know what I
mean. When someone calls and says, 'You better come get your
children, because there's a guy with a gun,' then you know, I ran.
I was scared and they were scared. So, I don't know." Prospective
juror K.M. stated he should not be a juror because of extensive
time spent with McMahon in the classroom and his knowledge of
McMahon. He stated that "I've had different situations arise with
him." When being questioned about potential bias, prospective
juror C.C. stated "I could try to listen to all of the evidence.
It's kind of hard, because I've seen him downtown in action. I
know he's capable of doing things." The judge admonished that he
did not want the prospective jurors to address the specifics of any
prior knowledge they had about the defendant, but merely to answer
3
whether they had prior knowledge. McMahon's counsel moved for, and
the judge denied, a motion for a mistrial.
The standard of review applied to a district court's denial of
a motion for mistrial is "clear and convincing evidence that the
trial court's ruling was erroneous." State v. Gollehon (1993), 262
Mont. 293, 302, 864 P.2d 1257, 1263 (citation omitted). "The
decision of a district court judge as to the impartiality of a jury
should not be set aside unless there is clear abuse of discretion."
State v. Sullivan (1994), 266 Mont. 313, 320, 880 P.2d 829, 834.
Regarding juror prejudice, this Court further stated that:
It is only where [jurors] form fixed opinions of the
guilt or innocence of the defendant which they would not
be able to lay aside and render a verdict solely on the
evidence presented in court that they become disqualified
as jurors.
Sullivan, 880 P.2d at 834; Great Falls Tribune v. District Court
(1980), 186 Mont. 433, 439-40, 608 P.2d 116, 120. Although the
Court in Sullivan was considering whether the district court erred
in its failure to strike individual jurors for cause, its analysis
is applicable to the instant case.
In State v. Dixon (1994), 264 Mont. 38, 869 P.2d 779, we
upheld the conviction where the prosecutor's improper comments were
considered insignificant when viewed in the context of the entire
record. We noted that the judge instructed the jury not to use
comments such as counsel's as evidence, and to consider only
evidence when debating the verdict. Dixon, 869 P.2d at 781. In
State v. Walton (1986), 222 Mont. 340, 342, 722 P.2d 1145, 1146,
the prosecutor made potentially erroneous and prejudicial comments
4
regarding presentation of evidence to the judge but the judge
admonished the prosecutor, issued precautionary statements to the
jury, and the jury ultimately rejected several of the State's
charges. In State v. Gafford (1977), 172 Mont. 380, 563 P.Zd 1129,
we held that non-responsive and prejudicial answers by a
prospective juror were not cause for reversal when the defendant's
motion was not made at the first recess following the answers and
the answers had been invited by further questions of defense
counsel which were common and expectable. In State v. Rhodes
(1974), 164 Mont. 455, 524 P.2d 1095, we held that a mistrial for
prejudice against the defendants, caused by a juror's comments, was
not warranted because defense counsel did not make a sufficient
showing of prejudice.
These cases demonstrate a trend that improper comments by
prosecutors or prospective jurors about the defendant or about the
evidence, are not grounds for mistrial if the judge instructs the
jury to disregard the questionable comment and if the court is
satisfied that the juror can lay aside a fixed opinion and render
a verdict solely on the evidence presented. Sullivan, 880 P.2d at
834. In the instant case, the judge admonished the prospective
jurors to avoid bias and to confine their discussion to the fact
that they may have a bias rather than the substance or source of
that bias.
We conclude, however, that the prospective juror comments in
this case were so prejudicial that reversal is warranted. Comments
by prospective jurors C.C. and K.M. damaged McMahon's reputation
5
from the start. Prospective juror P.H.'s at the start of a two-day
trial--in which one of the primary issues was whether McMahon had
the ability to carry out his threats--clearly prejudiced McMahon's
right to a fair and impartial jury. McMahon contends that his
threats were conditional only and he had no ability to carry them
out. Certain prospective jurors commented, in the presence of the
entire panel of venireman, that they had "seen him downtown in
action," that "situations" had arisen with him, and that the
incident in question caused one of the prospective jurors to be
fearful. These comments served to directly contradict McMahon's
contention that his threats were mere words. They attested to the
jurors' beliefs that McMahon's threats were not idle, that he was
a man of action; and that he was a man who engendered fear in
others. It would be extremely difficult, if not impossible for any
juror, having heard these assessments of McMahon, to sit in
impartial judgment of his claim that he posed no threat to anyone.
Although the instant facts are different from those in Putro
v. Baker (19661, 147 Mont. 139, 410 P.2d 717, the decision in that
case is instructive. Putro was a passenger in an automobile which
was involved in an accident with a truck driven by Baker. Two
other occupants of the Putro vehicle were killed in the accident.
Baker pled guilty to manslaughter with regard to those two deaths.
Putro, the survivor, then filed a civil suit for personal injury.
By pre-trial order, it was ordered that there would be no reference
to the criminal proceeding in the civil suit. The Great Falls
Tribune published an article about the civil trial and made
6
reference to the fact that Baker had pled guilty to manslaughter as
a result of the two deaths. One of the jurors brought this article
to the jury room with her the following day. Three of the jurors
admitted to having read the article. Noting that the three jurors
denied having been influenced by the article and that two of the
three voted for the defense, the district court denied the motions
for mistrial and new trial. This Court reversed.
The trial court should have declared a mistrial in
justice to itself as well as to parties, so that a fair
trial may result and the verdict when rendered may be
entitled to the respect of both parties and the
confidence of the court. We cannot be too strict in
guarding trials by juries from improper influences. This
strictness is necessary to give due confidence to parties
in the results of their causes, and to enlighten the
public who have recourse to our courts that any improper
influence which has the natural tendency to prejudice the
verdict is grounds for a mistrial. See Wright v.
Eastlick, 125 Cal. 517, 58 P. 87; Hayward v. Richardson
Construction Co., 136 Mont. 241, 347 P.2d 475, 77
A.L.R.2d 1144.
Putro, 410 P.2d at 722.
This Court then went on to hold that the trial court must
assess the "natural tendency" that the outside influence may have
upon the jurors' deliberations.
It is the duty of the trial judge to critically
assess the "natural tendency" of the references made in
a newspaper article. If, on its face, it has an apparent
prejudicial effect, and if possible and indeed probable
prejudice and bias would be created in the minds of the
jurors by reason of the damaging statement it contained,
the admissions by the jurors that they had read the
article, that it was in their presence in the jury room,
and that comments were made about it during their
deliberations upon a verdict, creates a situation of such
inherent unfairness that a mistrial should be ordered to
prevent a possible miscarriage of justice. In such a
case, contact of the jurors with outside, prejudicial
influences is clearly demonstrated.
Putro, 410 P.2d at 722.
The Court reversed the district court concluding,
that unexplained prejudicial references to important
matters in litigation may have a "natural tendency" to
infect the proceedings with an unfairness that can be
corrected only by starting anew the legal contest.
Restricting the source of the facts to be considered by
the jury to the witness stand is important in all cases.
Putro, 410 P.2d at 722.
Although the improper influence (newspaper article) in Putro
is factually distinguishable from the improper influence
(volunteered comments during voir dire) in the present case, the
principles established in Putro are equally applicable in this
matter. In particular, the principle that "any improper influence
which has the natural tendency to prejudice the verdict is grounds
for a mistrial." Pub-o, 410 P.2d at 722. Under the present facts,
we hold that comments made in the presence of the entire panel
indicating that certain jurors not only knew the defendant but were
aware of his propensity for violence were highly prejudicial. Such
prejudicial comments have a "natural tendency" to infect the
proceedings with an unfairness that can be corrected only by
declaring a mistrial and "starting anew the legal contest."
Our holding in this case should be interpreted narrowly,
reserved only for the most egregious and prejudicial prospective
juror comments; our holding does not encompass all statements
volunteered by prospective jurors during voir dire. It pertains
only to those comments which indicate the prospective juror is
harboring a bias which he or she cannot lay aside or those comments
which, when made in the presence of other prospective jurors,
8
amount to inadmissible opinions or comments about the defendant's
character or propensities, thereby poisoning the perspective of the
entire jury panel in such a way that the court cannot rectify the
problem through admonishment or curative jury instructions.
In future cases, it would be advisable for district courts,
before voir dire commences, to advise prospective jurors not to
volunteer the substance of any comments or opinions that they may
have about the parties. Rather, that they should merely advise the
court that they have information (or an opinion) about a party.
The trial Judge can then explore the substance of that information
in camera thereby avoiding any taint to the entire jury panel
Reversed.
Justices
May 4, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
folio wing named:
BRI.ICE E. BECKER
Atton~y _L T _...
-__. ar maw
P.O. Box 1113
Livingston, MT 59047
HON. JOSEPH P. MAZ-..-._, _ ____ -..-, - _______
Micheal Wellenstein, Assistant
Justice Bldg.
Helena, MT 59620
JOHN V. POTTER
Meagher County Attorney
P.O. Box 629
White Sulpher Springs, MT 59645
ED ! SMITH
CLE RK OF THE SUPREME COURT
STA TE OF MONTANA
B Y : %A -
Deputy -