No. 85-374 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiff and Respondent,

-vsGERALD ALAN GEORGE, Defendant and Appellant.

APPEAL FROM: District Court of theFirstJudicial District, In and for theCounty of Lewis & Clark, The Honorable Henry Loble, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, Helena, Montana

For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Dorothy McCarter, Asst. Atty. General, Helena Mike McGrath, County Attorney, Helena, Montana Joe Seifert, Deputy County Attorney, Helena

Filed: Submitted on Briefs: Oct. 10, 1985 Decided: January 7, 1986

ClerkMr. JusticeFred J. Weber delivered the Opinion of theCourt. Defendant was tried by the Lewis and Clark County DistrictCourt on a charge of operating amotor vehicleafter havingbeen adjudged an habitual trafficoffender. Defendant appealshisconviction. We affirmtheDistrictCourt. The issues on appeal are: 1. Did the District Court err in denying defendant's motion foramistrial? 2. Did the District Court err in placing upon the defendant theburden of proving an extreme emergency inorder tobe found not guiltyunder § 61-11-213, MCA? 3. Was defendant's conviction supported by sufficient evidence? On November 10, 1982, defendantwas adjudged anhabitual trafficoffender and hisdrivingprivileges were revoked. On December 9, 1984, defendant and his girl friend went to a party at the home of a relative in Lewis and Clark County. Defendant's parents were una.ble to go and allowed defendant and hiscompanion touse the car, with theunderstandingthat she was to drive the car. Defendant's father testified he did not allowthe defendant todrivebecause he had losthis drivingprivileges. Defendant testified that when he and his girl friend left the party, his girl friend drove. However, defendant testified that when he observed that she was so intoxicated

as tobe unable tokeep from weaving from side to side, he orderedher topullover and gotbehind thewheel. Defendant further testified that he would not have gotten behind the wheel if his girl friend had not been too intoxicated to drive. He also testified that he felt that life, limb and property were indangerwithherbehind thewheel.Defendant drove the car into Helena and was stopped by police a short distance from his home. The police officer testified that she observed the defendant's car cross the center line and watched itweave in its own lane of traffic. When the officer stopped the car, she gave defendant the field sobriety testwhich he passed. Thepolice officer then checked with the dispatcher and determined that defendant's licensehad been suspended. She arrested him for operating a motor vehicle while being an habitual traffic offender. The police officer also gave the defendant's companion a field sobriety test to determine if defendant's girl friend could drive the vehicle home, but she did not pass the test. Another police officer drove her home and left the vehicle there. The State emphasizes that the evidence demonstrates that defendant had several opportunities to call a cab or his father for a ride home, but did not do so. In addition, defendant passed at least two establishments where he could have used a telephone to call for a ride. The State points out that defendant told the police officer that his girl friend could drive the car to his father's house,but failed to mention that he was driving because his companionwas too drunk to drive. Followi.ng a jury trial and conviction, the defendant appeals. I Did the District Court err in denying defendant's motion for a mistrial? Following the trial,the giving of instructionsand oral argument,the casewas submitted to the jury at approximately 3:10 p.m. At 9:15 p.m., the jury returned to the courtroom with a writtenverdict. Theverdict, which was signedby theforeperson,showed that ten jurors found the defendant guilty of operating a motor vehicle after having been adjudged an habitual traffic offender. The verdict also showed that two jurors found him not guilty. The judge examined the verdict and read the verdict into the record. The State requested that the jurybe polled. Counsel for the defendant objected to the jury being polled and moved for a mistrial on the basis that there was a hung jury, as a result of the 10-2 vote. The District Court then pointed out to the jury that theywere required to reach a unanimous verdict in a criminal

case if that was possible. He inquired whether they might return to the jury room,deliberate further and cone up with

a unanimous verdict. The foreperson indicated that he did not think it was possible, but two other jurors thought that it was possible and that they should try again. At that point, defense counsel pointed out his concern thatpressure to reach a unanimous verdict put on the two individuals who voted not guilty. Defense counsel argued that it was improper to put any pressure upon those two individualsand thathe thought there had been a mistrial. He also pointed out that typically no

one should knowwhat the vote of the jury had been and that it was improper for the jurynow to go back to try to reach a unanimous verdict. In response, the district judge said to the jury: THE COURT: I don't think we should have any more discussion on this before the jury. Ladies and gentlemen, I am going to ask you to return to your juryroom and spend a reasonable amount of time trying to reach a verdict which is unanimous one way or the other, guilty or not guilty. So you will be remanded to the custody of the bailiff to return to your juryroom and see whether you can, within a reasonable time, achieve a unanimous verdict. 

### As 

### far as anyone having any pressure put on them, if you will read the instructions, you will see very clearly the duties of a juror in that regard as to how he is to react to the opinions ofthe otherjurors. I think it isquite clear asto what a juror is todo. I don't think any of you should think any pressure is being put on you. That is not the purpose of the Court. However, I do want topoint out toyou that a lotof timeand effort has been put in on this and we have no conclusion. If it ispossible togetone, I would liketosee one. Doesn't mean you have tocome up with one. All right. Willyou please return to your juryroom and deliberate fora while and see if you can come up with a verdict which isunanimous innature, andwewillgetyou anotherverdict form touse. Allright. Court isinrecess. After thejury had departed tothejury room, counsel forthe defendant again objected to the jury being sent ba.ck and requested thathismotion fora mistrialbe granted. The record shows that shortlyafter 10:OO p.m., thejury returned to the courtroom with a unanimous verdict finding the defendant guilty as charged. The jury was dismissed at

Defendant relies upon Brasfieldv. United States (1926), 272 U.S. 448, as authority for reversible error in the present case. In Brasfield, the United State Supreme Court considered the situation inwhich a jury had failedtoagree upon a verdict a.fter some hours of deliberation. The trial court had inquired as to how the jury was divided numerically. The United States Supreme Court held that "the inquiry itself should be regarded as ground for reversal." Brasfield, 272 U.S. at 450. The Court reasoned that the inquiry serves no useful purpose that cannot be obtained by questions not requiring the jury to reveal the nature and extent of the division, and that such an inquiry brings to bear an improper and coercive influence upon the jury. Defendant argues that in the present case the court was advised by the jury how it was numerically divided with the

same adverseresult. Defendant also refers to People v. Curry (Mich. App. 1977), 257 N.W.2d 751 and Statev. Randall (1960), 137Mont.534, 353 P.2d 1-054. Both of these cases addressed the so-called Allen instruction, which instructed the jury that each juror ought to pa-y proper respect to the other's opinions; if a much larger number of the panel is for conviction, dissenting jurors should consider whether the doubt in their minds was a reasonable one; and, on the other hand, if the majority is for acquittal, the minority ought seriously to ask themselves whether they may not consider the correctness of and alter their judgments. The courts inboth

cases condemned the use of the instruction. The courts held that the inevitable effect of Allen-type instructions is to suggest to minority jurors that they should surrender their own convictionsand followthemajority. In the present case, no Allen-type instruction was given. To the contrary, jury instruction 5 included the following pertinent paragraphs: The law requires the jury verdict in this case to be unanimous. Thus,all twelve ofyour numbermust agree in order to reach a verdict upon the charge contained in the Information whether the verdict be guilty or not guilty.

The jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment. This means thatyoumay fully and fairly discuss among yourselves all of the evidence you have seen and heard in this courtroom about this case together with the lawwhich relates to this case as contained in the Judge's instructions. In the course of deliberations,a jurorhas a right to re-examine his own views and change his opinion if he is convinced to do so by fair and honest discussion by any member or members of the jury, based upon the evidence the jury saw and heard in the trial and the law as given you in these instruction. However, no juror should surrender his honest opinion as to the weight or effect of evidence or as to the innocence or' guilt of the defendant because the majority of the jury feels otherwise,or for the purpose of returning an unanimous verdict or toprevent amistrial. The court here did notmake a prohibited inquiry of the jury as to how it was divided numerically. The information

was furnished by the jury to the court by a written verdict, which disclosed the 10-2vote notwithstandingthe instruction requiring a unanimousverdict. None the instructions this case had the characteristics of an Allen instruction which could be construed as coercing a minority juror into following the majority. The instructions as given, clearly set forth the correct rule that no juror should surrender his honest opinion because the majority of the jury feels otherwise,or for the purpose of returning a unanimous verdict or to prevent amistrial. At the time he returned the jury to the jury room, the district judge emphasized that as far as pressure is concerned, the jury should read the instructions,which will clearly describe the duties of the jury and instruct them as to how a juror is to react to the opinions of other jurors. The District Court further emphasized that no juror should think any pressure was being put upon themhim. The defendant argues that by sending the jury back, the court committed reversible error by discouraging the dissenters from taking a view contrary to the majority. Had that been done, we would reverse the conviction without hesitation. However, the instructions clearly set forth the standards to be applied by each of the jurors in deliberating. Those instructions were strengthened by the commentsof the DistrictCourt. While the DistrictCourtdid encourage their attempt to secure 

### a unanimousverdict,based upon their initial failure to do so,he did indicate clearlythatnone of them should feelanypressure was being put upon them. He merely asked that they return to the jury room and deliberate "forawhile" and see if they could come up with a unanimousverdict. In construing Brasfield, the Ninth Circuit Court of Appeals recently stated in Locks v. Sumner (9th Cir. 1983)

## , 703 F.2d 403, that a defendant's right to an impartial jury and fair trial may be infringed if a trial judge's inquiry into the jury's balloting would be likely to coerce certain jurors into relinquishing their views in favor of reaching a una.nimousdecision. To determine whether such coercion of the jury's deliberative process occurred, the inquiry by the judge must be viewed in light of the context in which itwasmade, not in isolation. Locks, 703 F.2d at 406-07. After a careful review of the record and the manner in which the jury disclosed their initialvote,we conclude that the DistrictCourtwas correct in refusing to grant a mistrial because of the initial verdict of 10 guilty, 2 not guilty.

Did the District Court err inplacing upon the defendant the burden of proving an extreme emergency in order to be found not guilty under S 61-11-213, MCA? Section 61-11-213, MCA, the habitual traffic offender statute under wh.ich defendant was convicted, reads as follows: Habitual traffic offender operating motor vehicle guilty

## of misdemeanor. Any person found to be an habitual traffic offender under this part, and who thereafter operates a motor vehicle in this state while the order of the court ~rohibitinssuch operation remains in effect, shali be guilt$ of a misdemeanor, and upon conviction thereof shall be imprisoned for a period of not more than 1 year or fined.not more than $1,000, or both. However, in cases wherein the prohibited operation of a motor vehicle by an habitual traffic offender is necessitated in a situationof extreme emergency inordertosave life, limb, orproperty, he shallnot be deemed guilty of a violation under this part. The defendant was unable to cite any case authority on thequestionhere. Defendant points outthatinmost states, the question of operation of a motor vehicle by an habitual offender in an extreme emergency is a question to be considered at sentencing, rather than to determine guilt or innocence atthetimeof trial. Defendant argues that, under this peculiar statutory provision, the State had the burden of proving beyond a reasonable doubt that the defendant was not facing an extreme emergency which justified his driving 

### - the vehicle. At the close of the prosecution's case, defendant moved to dismiss on the ground that the State failedtoprove thatdefendantwas not facing such an extreme emergency. The DistrictCourt denied thatmotion. The defendant argues thatifa person isdrivinga motor vehicle in an extreme emergency, there is no offense. He therefore argues that the question of an extreme emergency should not be considered as an affirmative defense to be proved by the defendant by a preponderance of the evidence. In making his argument, defendant tends to ignore that portion of $ 61-11-213, MCA, which provides that a person shallnot be deemed guiltyof a violation incaseswhere the prohibited operation of themotor vehicle "isnecessitated in

a situationof extreme emergency inorder tosave life, limb,

orproperty." Wehave carefully reviewed the testimony on thepart of defendant and his father, the only witnesses to testify in the defendant's behalf. The evidence fails to show an extreme emergency requiring the defendant to drive inorder to save life, limb, orproperty. Neither the defendant nor his allegedly inebriated companion were required todrive atall. They could have chosen towalk. As pointed outby the State, the defendant could have called for a cab or called forhis fathertocome pick them up. Hechose todo neither. Defendant's testimony showed that his basic reason for driving was that it was not safe to have his girl friend drive the car because she was inebriated. While it was commendable that he stopped her from driving in that condition, there was no requirement at that point that he drive. Defendant has failed to prove that he comes within therequirements of S 61-11-213, MCA. It is true that the State is required to prove every element of an offense beyond a reasonable doubt. See State

v. Patten (1979), 183Mont. 417, 600 P.2d 194. However, as pointed. out in State v. Gratzer (1984), 682 P.2d 141, 41 St.Rep. 727, the State is not required to prove the nonexistenceof every fact thatmay constitute an exculpatory circumstance affecting the guiltof the defendant. The State points out that the emergency provision of 

### 5 61-11-213, MCA, isnot an element of the offense. It is a defense tothe charge. It isof course appropriate that the burden of proof of that extreme emergency be placed upon the defendant. Defenda.ntpresents two additional legaltheories on this issue, neither of which was presented atthe district court level. We will not consider such arguments raised for the first time on appeal. Vogel v. Gibson's Discount Centers (Mont. 1984), 681P.2d 40, 42, 41St.Rep. 874, 876-77. We hold that the District Court properly placed the burden upon the defendant of proving extreme emergency as definedunder S 61-11-213, MCA.III Was defendant's conviction supported by sufficient evidence? On this issue,defendant presents an argument sirnil-arto that on the preceding issue. He contends that there was a sudden emergency which required him to drive. Defendant argues that he did not realize his girl friend was too intoxicated to drive until after they had driven some distance, and it therefore became appropriate for him to drive. As previously stated, defendant has failed to prove that it was necessary that he drive to save life, limb or property in an extreme emergency. The State clearly met the proof requirements of the statute. The defendant failed to prove by a preponderance of the evidence the existence 

### of an extreme emergency,defined by the statute. We hold that the verdict was supported by sufficient evidence. The judgment of the District Court is affirmed.

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We concur: 

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