No. 13733 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

STATE OF MONTANA, Plaintiff and Respondent,

-vsJOHN STOCKTONDAVISON, Defendant and Appellant.

Appeal from: District Court of the Sixth Judicial District, Honorable Jack Shanstrom, Judge presiding. Counsel of Record: For Appellant: JamesA. 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, CountyAttorney, Big Timber,Montana

Submitted: May 27, 1977 Decided:. 

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~ 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 jurymisconduct during deliberations. On October 21, 1976,defendantwas 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 sentencingwas set for December 2, 1976. On the day after the jury verdict, defense counsel was discussing the case with one of the jurorswhen 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 immediatelywent to the clerk of court's office and asked to see the exhibits used at trial. The clerk of courtproduced 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 exhibitshad been inadvertently left in the courtroom when the jury started its deliberations in the courtroom. Defense counsel offered toobtain 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 thematter. 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 hismotion 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 exhibitsbut 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 fora new trial, and sentenced defendant to ten years in the statepenitentiary. On appeal, defendanturges hismotion for a new trial should have been granted because of jury misconduct. He claims (1) that the exhibits in questionwere prejudicial to the defendant,and (2) that the offered affidavits could not be received to demonstrate the lack of prejudicial effect of the jury'smisconduct. 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 prosecutionwitnesses, clearly demonstrated their prejudicial nature. While the jurors' affidavitswere admissible to show the existence of juror misconduct, theywere not admissible to show the jurorswere not actually influenced by the unauthorized evidence.Section 95-1913(c), R.C.M. 1947,provides that evidence whichmay be taken into the jury room for deliberationmay include 

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## * * * all papers which have been received as evidence in the cause

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## *". 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, 147Mont. 139, 147, 410 P.2d 717; United Statesv. Downen, 496 F.2d 314, cert.den. 419U.S. 897, 95 S.Ct. 177, 42 

### L ed 2d 142. If one can demonstratematerial prejudice it is axiomatic,of course, that onewho would be so affected would be entitled to a new trial. Otherwise the defendantwould be deprived of an impartial jury, the right to confront witnesses, and the assistanceof 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 Islandsv. Gereau, 523 F.2d 140, and of course, imcompatible with Article 11, Section 24 and the due process guarantee ofArticle 11, Section 17 of the 1972Montana Constitution. Since both sides agree that the jury improperly considered evidence which was not part of the trial record, the question to consider iswhether itwas prejudicial. We confine our discussion to the police reportbecause we conclude the jury's use of the police report constituted prejudice thatwas 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 Statehowever, did not call Officer Brannin, and the defendantwas deprived of an opportunityto cross-examine him. Nevertheless, through the police report, the jury had evidence that helped support the credibility and statementsof the prosecution witnesses who testified to the facts contained in the report. Under these circumstances the trial court could not presume the police reportwas not prejudicial. The jury deliberationshad been tainted by their reading of the nonadmitted police report. Admittedly, the only alternative left to the county attorneywas 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 evidencewas considered by the jury,but they were not proper to show whether they in fact influenced the jury. This Court stated in Putro: 

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## * * *'This court

## * * * has never held, and does not now hold, that, if the contact of the juror with outside,prejudicial influencesbe clearly demonstrated and uncontroverted,the juror may purge himself by testifying that such influences did not affect his judgment in forming his verdict.' 

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## * * *'There isno practicable method to so analyze themental operation of the jurors as to determine whether, inpoint 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.' 

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## *" 147 Mont. 147, 148. As stated in United Statesv. Wilson, 534 F.2d 375, 378, the juror's testimony regardingmisconduct in that case could go to "

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## * * * 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 Statepresented only the affidavits of four jurorswho admitted to having considered the two exhibitsbefore the final vote. All admitted that at least one juror had notmade up his mind before this last vote, and there isno way of knowing which of the jurors held out until the finalvote. Similarly, there isno way of knowingwhether one of the jurorswho had considered the exhibitswas onewhose decision

was influencedby the exhibit. Moreover, improper conduct of

one juror is chargeable to thewhole panel. Goff

### v. Rfixzeb 148Mont. 61, 417 P.2d 105. Even assuming proper use of the affidavits, it is clear the Statedid not demonstrate the lack of prejudice when it offered only the affidavitsof four jurors that their consideration of extraneous evidence did not affect their verdict. In Putro, 147Mont. 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 sidesof a lawsuit be guaranteed a fair trial. 

## * * * We cannotbe too strict in guarding trialsby juries from improper influences. The strictness isnecessary to give due confidence to parties in the resultsof their causes,and to enlighten the public who have recourse to our courts that any improper influencewhich 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