No. 85-374 

IN THE 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 the First Judicial District, 

In and for the County 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 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant was tried by the Lewis and Clark County 

District Court on a charge of operating a motor vehicle after 

having been adjudged an habitual traffic offender. Defendant 

appeals his conviction. We affirm the District Court. 

The issues on appeal are: 

1. Did the District Court err in denying defendant's 

motion for a mistrial? 

2. Did the District Court err in placing upon the 

defendant the burden of proving an extreme emergency in order 

to be found not guilty under § 61-11-213, MCA? 

3. Was defendant's conviction supported by sufficient 

evidence? 

On November 10, 1982, defendant was adjudged an habitual 

traffic offender and his driving privileges 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 his companion to use the car, with the understanding that 

she was to drive the car. Defendant's father testified he 

did not allow the defendant to drive because he had lost his 

driving privileges. 

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 to be unable to keep from weaving from side to side, he 

ordered her to pull over and got behind the wheel. 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 in danger with her behind the wheel. 
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 it weave in its own lane of traffic. 

When the officer stopped the car, she gave defendant the 

field sobriety test which he passed. The police officer then 

checked with the dispatcher and determined that defendant's 

license had 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 companion was 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 instructions and oral 

argument, the case was submitted to the jury at approximately 

3 : 10 p.m. At 9 : 15 p.m., the jury returned to the courtroom 

with a written verdict. The verdict, which was signed by the 
foreperson, 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 jury be 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 

they were 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 that pressure 

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 individuals and that he thought there 

had been a mistrial. He also pointed out that typically no 

one should know what the vote of the jury had been and that 

it was improper for the jury now 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 of 
the other jurors. I think it is quite clear as to 

what a juror is to do. 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 to point out to you that a lot of time and 

effort has been put in on this and we have no 

conclusion. If it is possible to get one, I would 

like to see one. Doesn't mean you have to come up 

with one. All right. Will you please return to 

your juryroom and deliberate for a while and see if 

you can come up with a verdict which is unanimous 

in nature, and we will get you another verdict form 

to use. All right. Court is in recess. 

After the jury had departed to the jury room, counsel for the 

defendant again objected to the jury being sent ba.ck and 

requested that his motion for a mistrial be granted. 

The record shows that shortly after 10:OO p.m., the jury 

returned to the courtroom with a unanimous verdict finding 

the defendant guilty as charged. The jury was dismissed at 

Defendant relies upon Brasfield v. 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 in which a jury had failed to agree 

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 adverse result. 

Defendant also refers to People v. Curry (Mich. App. 

1977), 257 N.W.2d 751 and State v. Randall (1960), 137 Mont. 
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 in both 

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 convictions and follow the majority. 

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 of your number must 

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 that you may fully 

and fairly discuss among yourselves all of the 

evidence you have seen and heard in this courtroom 

about this case together with the law which relates 

to this case as contained in the Judge's 

instructions. 

In the course of deliberations, a juror has 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 to prevent a mistrial. 

The court here did not make 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 10-2 vote notwithstanding the instruction 

requiring a unanimous verdict. 

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 a mistrial. 

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 them him. 

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 

comments of the District Court. While the District Court did 

encourage their attempt to secure a unanimous verdict, based 

upon their initial failure to do so, he did indicate clearly 
that none of them should feel any pressure was being put upon 

them. He merely asked that they return to the jury room and 

deliberate "for awhile" and see if they could come up with a 

unanimous verdict. 

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.nimous decision. 

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 it was made, 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 

initial vote, we conclude that the District Court was correct 

in refusing to grant a mistrial because of the initial 

verdict of 10 guilty, 2 not guilty. 

Did the District Court err in placing 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 ~rohibitins such 

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 situation of extreme emergency in 
order to save life, limb, or property, he shall not 

be deemed guilty of a violation under this part. 

The defendant was unable to cite any case authority on 

the question here. Defendant points out that in most 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 at the time of 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 

failed to prove that defendant was not facing such an extreme 

emergency. The District Court denied that motion. 

The defendant argues that if a person is driving a 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 

shall not be deemed guilty of a violation in cases where the 

prohibited operation of the motor vehicle "is necessitated in 

a situation of extreme emergency in order to save life, limb, 

or property." 

We have carefully reviewed the testimony on the part 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 in order 

to save life, limb, or property. Neither the defendant nor 

his allegedly inebriated companion were required to drive at 
all. They could have chosen to walk. As pointed out by the 

State, the defendant could have called for a cab or called 

for his father to come pick them up. He chose to do 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 

the requirements 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), 183 Mont. 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 

nonexistence of every fact that may constitute an exculpatory 

circumstance affecting the guilt of the defendant. 

The State points out that the emergency provision of 

5 61-11-213, MCA, is not an element of the offense. It is a 

defense to the charge. It is of course appropriate that the 

burden of proof of that extreme emergency be placed upon the 

defendant. 

Defenda.nt presents two additional legal theories on this 

issue, neither of which was presented at the district court 

level. We will not consider such arguments raised for the 

first time on appeal. Vogel v. Gibson's Discount Centers 

(Mont. 1984), 681 P.2d 40, 42, 41 St.Rep. 874, 876-77. 

We hold that the District Court properly placed the 

burden upon the defendant of proving extreme emergency as 

defined under S 61-11-213, MCA. 
III 

Was defendant's conviction supported by sufficient 

evidence ? 

On this issue, defendant presents an argument sirnil-ar to 

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. 

/* 

We concur: /