No. 13733 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN STOCKTON DAVISON, 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable Jack Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant: 

James A. Tulley argued, Big Timber, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Allen B. Chronister, Assistant Attorney General, 

argued, Helena, Montana 

Kenneth Olson, County Attorney, Big Timber, Montana 

Submitted: May 27, 1977 

Decided:. . ~ d 

Filed: 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Defendant appeals from an order of the district court, 

Sweet Grass County, denying his motion for a new trial on the 

grounds of jury misconduct during deliberations. 

On October 21, 1976, defendant was charged with theft 

in violation of section 94-$-302(1) (a), R.C.M. 1947, and was 

tried on November 29, 1976, in the Sweet Grass County courtroom 

in Big Timber. Because of bad weather and a cold jury room, 

the trial judge suggested, at the conclusion of the case, that 

he would clear the courtroom and permit the jury to deliberate 

there rather than in the colder jury room. Both counsel agreed 

to this arrangement. 

The jury found defendant guilty and sentencing was set 

for December 2, 1976. 

On the day after the jury verdict, defense counsel was 

discussing the case with one of the jurors when the juror mentioned the jury did not understand some material contained in 

the police report. Counsel recalled that neither party had introduced a police report in evidence and immediately went to the 

clerk of court's office and asked to see the exhibits used at 

trial. The clerk of court produced the exhibits including: 

(1) a police report prepared by the undersheriff and 

marked state's exhibit 7, but not introduced in evidence,and 

(2) a police teletype originating from the Big Timber 

sheriff's office dated October 11, 1976, marked as state's 

exhibit 8, but not introduced in evidence. 

On the sentencing date defense counsel moved for a new 

trial on grounds the jury had viewed the police report and police 

teletype. All parties acknowledged the nonadmitted exhibits had 

been inadvertently left in the courtroom when the jury started its 

deliberations in the courtroom. Defense counsel offered to 
obtain juror affidavits stating the documents were circulated 

by the jury during its deliberations, and the county attorney 

admitted that they had been circulated. The trial court then 

postponed sentencing to consider the matter. 

The county attorney later filed a motion allowing him 

to take juror affidavits to establish that the exhibits involved 

did not prejudice defendant. Defense counsel objected to this 

motion, and again renewed his motion for a new trial. The trial 

court granted the county attorney's motion to obtain juror affidavits. he county attorney then filed four affidavits which 

in substance declared the jurors had looked at the nonadmitted 

exhibits but that they did not affect their deliberations. 

At the sentencing hearing the court received the affidavits in evidence over defendant's objection, overruled defendant's motion for a new trial, and sentenced defendant to ten 

years in the state penitentiary. 

On appeal, defendant urges his motion for a new trial 

should have been granted because of jury misconduct. He claims 

(1) that the exhibits in question were prejudicial to the defendant, and (2) that the offered affidavits could not be received to demonstrate the lack of prejudicial effect of the 

jury's misconduct. 

We hold the district court should have granted defendant's motion for a new trial. The existence of the unauthorized 

exhibits in the jury room during deliberations, when considered 

with their tendency to give credibility to the testimony of the 

prosecution witnesses, clearly demonstrated their prejudicial 

nature. While the jurors' affidavits were admissible to show 

the existence of juror misconduct, they were not admissible to 

show the jurors were not actually influenced by the unauthorized 

evidence. 
Section 95-1913(c), R.C.M. 1947, provides that evidence 

which may be taken into the jury room for deliberation may 

include " * * * all papers which have been received as evidence 

in the cause * * *". Where a jury has improperly (though innocently) taken nonadmitted papers or documents and other articles 

into the jury room, it is generally held the mere act of doing 

so does not entitle a defendant to a new trial. Rather, he must 

establish he has been prejudiced. Putro v. Baker & Mannix 

Electric, 147 Mont. 139, 147, 410 P.2d 717; United States v. 

Downen, 496 F.2d 314, cert.den. 419 U.S. 897, 95 S.Ct. 177, 42 

L ed 2d 142. If one can demonstrate material prejudice it is 

axiomatic, of course, that one who would be so affected would be 

entitled to a new trial. Otherwise the defendant would be deprived of an impartial jury, the right to confront witnesses, and 

the assistance of counsel at every critical stage of the trial. 

This kind of situation is prima facie incompatible with the 

Sixth Amendment to the United States Constitution, Government of 

the Virgin Islands v. Gereau, 523 F.2d 140, and of course, imcompatible with Article 11, Section 24 and the due process guarantee 

of Article 11, Section 17 of the 1972 Montana Constitution. 

Since both sides agree that the jury improperly considered 

evidence which was not part of the trial record, the question to 

consider is whether it was prejudicial. We confine our discussion 

to the police report because we conclude the jury's use of the 

police report constituted prejudice that was not overcome by the 

prosecution. The State contends that Officer Brannin could have 

testified to the information contained in the police report anyway and therefore that State v. Nelson, Mont. , 560 P.2d 

897, 34 St-Rep. 80 (1977) (inadmissible hearsay upon hearsay in 

a police report) does not apply. The State however, did not call 

Officer Brannin, and the defendant was deprived of an opportunity 
to cross-examine him. Nevertheless, through the police report, 

the jury had evidence that helped support the credibility and 

statements of the prosecution witnesses who testified to the 

facts contained in the report. Under these circumstances the 

trial court could not presume the police report was not prejudicial. The jury deliberations had been tainted by their reading of the nonadmitted police report. 

Admittedly, the only alternative left to the county 

attorney was to obtain jury affidavits to the effect that their 

deliberations were not influenced by the nonadmitted police report. Surely the affidavits were proper to show that the nonadmitted evidence was considered by the jury, but they were not 

proper to show whether they in fact influenced the jury. This 

Court stated in Putro: 

" * * *'This court * * * has never held, and does 

not now hold, that, if the contact of the juror 

with outside, prejudicial influences be clearly 

demonstrated and uncontroverted, the juror may 

purge himself by testifying that such influences 

did not affect his judgment in forming his verdict.' * * * 

" * * *'There is no practicable method to so analyze 

the mental operation of the jurors as to determine 

whether, in point of fact, the verdict would have 

been the same if the trial had been conducted, as 

both parties had a right to expect, according to 

law and upon the evidence in court.' * * *" 147 

Mont. 147, 148. 

As stated in United States v. Wilson, 534 F.2d 375, 378, the 

juror's testimony regarding misconduct in that case could go 

to " "' * * * facts bearing upon the question of the existence 

of any extraneous influence, although not as to how far that 

influence operated upon his nind."'" 

In the present case the State presented only the affidavits of four jurors who admitted to having considered the two 

exhibits before the final vote. All admitted that at least one 

juror had not made up his mind before this last vote, and there 

is no way of knowing which of the jurors held out until the final 
vote. Similarly, there is no way of knowing whether one of the 

jurors who had considered the exhibits was one whose decision 

was influenced by the exhibit. Moreover, improper conduct of 

one juror is chargeable to the whole panel. Goff v. Rfixzeb 

148 Mont. 61, 417 P.2d 105. 

Even assuming proper use of the affidavits, it is clear 

the State did not demonstrate the lack of prejudice when it 

offered only the affidavits of four jurors that their consideration of extraneous evidence did not affect their verdict. 

In Putro, 147 Mont. 147, 148, this Court commented on 

improper influences affecting one's right to a fair trial: 

"The guiding principle of our legal system is 

fairness. We must tenaciously adhere to the ideal 

that both sides of a lawsuit be guaranteed a fair 

trial. * * * We cannot be too strict in guarding 

trials by juries from improper influences. The 

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." 

Defendant's right to fairness can only be guaranteed by 

a new trial. We reverse the order of the district court and 

remand the case for a new trial. 

ustice