No. 13547 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsRANDALL CRAIG BAUGH, Defendant and Appellant.

Appeal from: Districtcourt of the Eleventh Judicial District, Honorable Robert Sykes, Judge presiding. Counsel of Record: For Appellant: Donald L. Shaffer argued, Libby, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena,

Montana Allen B. Chronister argued, Assistant Attorney

General, I-lelena, Montana William A. Douglas argued, County Attorney,

Libby, Montana

Submitted: September 29, 1977 Decided: 

### YO\I 

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Filed: lU\( , S 

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### Mr. JusticeGene B. Daly delivered the Opinion of the Court.

InAugust 

### 1975, thebody of ~avidscca was discovered inan isolated area of Lincoln County, Montana. Sometime after that, warrants of arrestwere issued for Randall Craig Baugh, defendant herein, and William Beechman. William Beechman has

never been found. InNovember 1975, Randall Craig Baugh turned himself in to the authorities. Defendant was arraigned and plead not guiltyto the charge of deliberate homicide in the District Court, Lincoln County. Pretrialmotions were made by the stateand the defense. Among these was a motion by the state toamend the Information

as to the alleged 

### date of the crime and motions for discovery made by defendant. Two prospective witnesses were arrested by the state for the deliberatehomicide of Davidmcca. One, Randy Jacobsen, was arrested before the defense could talk to him and held over night. Itwas a week after this incident that Jacobsen consented to an interviewby the defense. The otherwitness, William Phillip Stuart, was arrested inNew Mexico and then released. The defense requested the court tohelp locate Stuart. The court ordered the Lincoln County sheriff's office to cooperate with the Lincoln County public defender's office in locating Stuartbecause the Lincoln County public defender has

no budget orpersonnel to pursue such matters. The Lincoln County sheriff's office located Stuart inNew Mexico, did not inform the public defender, but instead informed the Lincoln County attorney, who then flew toNew Mexico, interviewed Stuart, arrested him, gave him a polygraph examination, released him,flewback toMontana, and then informed the defense and the court of the whereabouts of Stuart. Trialwas had in Lincoln County, Montana, starting on May 

### 17, 1976. The jury was interviewed prior tovoir direby Hon. Robert C. Sykes, because of a controversy that existed at that existed atthat time between the Lincoln County sheriff and the county attorney, William Douglas. Evidence began on May 18, 1976. On May 21, 1976, the defense made two motions for a mistrial. The firstmotion was made because defendant had been brought to court on the morning of May 21 

### inhandcuffs, and thoehandcuffs

were unlocked in front of thejury before the trial commenced. The reason for the handcuffs, according to the deputy sheriff,

was the defendant's bickering. The other motion was because a juror, Sandy Kolar, had evidence of the matter acquired outside of the trial. In fact, Kolar was present with Douglas when videotape of the exhumation of the body of Davidpcca had been shown. Douglas was fully

aware Kolar was present atthis videotape showing. Both motions formistrialwere denied; Kolar was excused and an alternatejuror was seated. A further motion for

### mistrialwas made and a motion for a directed verdict. Defendant was found guilty and sentenced to 

### 75 years in the Montana stateprison. Defendant appeals from thejudgment, and presents four issues on appeal: 

### 1. Whether a defendant charged with deliberate homicide has a right to a jury instruction on mitigated deliberatehomicide?2. Whether the arrest of potential defense witnesses deprives a defendant of due process and a fair trial? 

### 3. Whether it is reversible error for an accused to appear inhandcuffs before ajury? 4. Whether the replacing of ajuror who 

### is a personal friend of the prosecutor and has personal knowledge of evidence of the.case 

### is error, if replaced by an alternatejuror prior to the time thejury goes into deliberations? Issue 

### 1. Isa defendant charged with deliberate homicide entitled to a jury instruction on mitigated deliberate homicide

even though no evidence ispresented on that issue. Under sectlon 94-5-103, R.C.M. 1947, deliberate homicide is mitigated if committed "under the influence of extreme mental or emotional stress for which there 

### is reasonable explanation or excuse." 

### As ascertained from the record, defendant's theory 

### is that he did not kill the deceased and had no knowledge of who did. Attrial, defendant's attorney, in his opening statement stated: 

### "*

# *

# *'Now,-,Randy

### willtake the stand and I 

### willtell you essentiallywhat he 

### willsay. He has no knowledge or information as tohow ~avidGcca met his death, he could speculate and that 

### is allitwould be 

### ispure speculation, he doesn't know, 

# ** *" This Court reaffirmed theMontana rule on the requirement fbr an instruction on mitigated deliberate homicide in Statev. Buckley

## , Mont, 

## ,557 P.2d 283, 33 St.Rep. 1204, 1207 (1976) and set out this test: 

### "*

# * * the district court's instructions must cover every issue or theory having support in the evidence, and the inquiry of the district court must only be whether ornot

### any evidence exists in the record to warrant an instruction on mitigated deliberate homicide

### .'' 557 P.2d 285.The United States Supreme Court 

### inKeeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L ed 2d 844 (1973), stated that the defendant 

### is'entitled to instruction on a lesser included offense, if evidence would permit thejury rationally to find him guilty of the lesser offense and acquit him of the greater. In the instant case there was no evidence inthe record to show mitigation as required by section 94-5-103. In fact, defendant's theory throughout the trialwas that he did not murder the victim. In Statev. McDonald, 51Mont. 

### 1, 16, 149 

### P. 279 (1915), it was said: 

# "** * Inmany instances, however, the evidence 

### is such as to show that the defendant 

### is either guilty of the offense charged or 

### is entitled toan acquittal. In such cases the court may not be put inerror for refusing or failing to instruct as to the lower degree or the included offense

# ." This rationale applies to the instant case, and the trialcourt acted properly innot giving the alternate instruction on 

### mitigated homicide. Issue 2, concerns the county attorney's arresting and holding *itnesses Jacobsen and Stuart and after questioning releasing them. Defendant alleges this prejudicially impaired the effectiveness of defense counselfsefforts to interview these same witnesses. This Court in Statev. Gangner, 73 Mont. 187, 194, 235 P. 703 (1925) stated: "Whatever the popular notion may be, it is neither the duty nor the right of the state, acting through itspublic officers, to secure the conviction of one of 

### its citizensby any availablemeans, fairor foul. The Constitution guarantees to everyone accused of crime a fairand impartial trial

# *** and the statehad no more right to deny defendant's counsel access to a witness material to the defense then it would have had to secrete the witness to prevent the defendant using him

# ** *.I'In the instant case while defense counsel was able to talk to these witnesses, defendant contends the prosecution

so intimidated them that the effectiveness of the interviews

was substantiallydiminished. Yet, there 

### isno showing how the prosecution intimidated these witnesses or that it instructed them not to cooperatewith the defense attorney, or that it otherwise attempted to directly impede the effectiveness of defense counsel. The record shows that atthe time these witnesses were interviewed and arrested, they were potential defendants in this case. There 

### is extensive discussion in1the record concerning these witnesses. It 

### isclear from that discussion the court took every action possible toprovide the defense access to them. While defense counsel may have had difficulty in locating and interviewing witnesses Jacobsen and Stuart, there 

### isnothing in the record to show lack of due process, which could be attributed to the state

## 's investigatory procedure. Issue 

### 3. On the morning of May 21, 1975, defendant was escorted into the courtroom inhandcuffs by a deputy sheriff. Apparently thehandcuffs were removed once defendant was inthe courtroom. Counsel for defendant contends defendant having been

seen by thejury inhandcuffs isreversible error. When the handcuff incident occurred, defense counsel moved in chambers for 

### a mistrial and was denied. Ruling, however, on the mistrial

was reserved in order togive the court opportunity toquestion the jurors after the verdict was in to determine whether the jurors were influenced by the handcuff incident. This was done after thejury reached 

### itsverdict, but before itwas announced. This exchange took place between the court and jurors:"THE COURT: Now before presenting this verdict to .me, I would like to ask the jurors some questions. Did any of thejury observe the defendant during the course of the trialbeing brought into the courtroom 

### inhandcuffs? "THE JURY: Yes 

### sir. "THE COURT: Now, did that inany way affect any of you inyour deliberations as tohis guilt or innocence? ''THE JURY: No. "THE COURT: It did not, any of you?

The basic principles of the criminaljustice system 

### is that an accused, whatever his past record, 

### is presumed innocent until proven guiltybeyond a reasonable doubt. Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L ed 481 (1895). It follows that the accused 

### is also entitled to the indicia of innocence. In the presence of thejury, he 

### is ordinarily entitled tobe relieved of handcuffs, or other restraints, so he 

### willnot be 

### mdedas an obviouslybad person or to suggest that the fact of his guilt 

### isa foregone conclusion. United Statesv. Samuel, 431F.2d 610, 614 (4th Cir. 1970). The Montana case closest in point is Statev. Bentley, 155 Mont. 383, 472 P.2d 864 (1970). There this Court held the defendant was not prejudiced by having towear jail clothing during the trial. However, the Ninth Circuit Court inBentley

v. Crist, 469 F.2d 854 (1972), reversed the Montana holding and held that compelling the accused towear prison clothing mag deny him the presumption of innocence. In Statev. Sawyer, 60 Wash.2d 83, 371P.2d 932 (1962), - the defendant was handcuffed inthe courtroom upon adjournment, much like the instant case wherein the defendant was brought into court handcuffed and then unlocked. The court found noprejudicial error. Sawyer relied upon Way v. United States, 285 F.2d 253, 254, (10th Cir. 1960) where, ashere, the defendant was brought into trialhandcuffed, without order of the court, and the handcuffs were then removed. In

### Way the court held that "in the absence of an indication of prejudicial consequences, such an occurrence doesInot warrant the granting of a new trial." 

### It 

### is incumbent upon defendant to demonstrate actualprejudice, which he has not done here. The Ninth Circuit inUnited States v. Kress, 451 F.2d 576 (1971), held that an appearance before thejury during trialby a defendant in shackles 

### is not inherently prejudicial. The majority rule 

### is that, absent unusual circumstances,

a prisoner brought into court for trial

### is entitled to appear free from allbonds or shackles, this right being an important component of a fairand impartial trial. However, in State v. Jones, 130N.J.Super. 596, 328 A.2d 41 (1974), the court held defendant's right tobe free of shackles during trialneed not be extended to the right to be free of shackles while being taken back and -forthbetween the courthouse and thejail. Most courts now agree with Sawyer that a defendant 

### isnot denied a fairtrialand 

### isnot entitled toa mistrial solelybecause he

was momentarily and inadvertently seen.:inhandcuffs by jury members. In the instant case counsel for defendant admits thejury

was well aware of the fact defendant was incustody and not free on bail. There 

### isno indication this occurrencewas prejudicial. In the absence of an indication of prejudicial consequences, such an occurrence does not warrant the granting of a

new trial. 

### -8-Issue

### 4. On May 21, 

### 1976, five days afterthe trial commenced it came tothe court's attention thatjuror Kolar, alongwith the county attorney and hiswife had, severalmonths prior to trial, viewed a videotape of the exhumation of the deceased. This factwas unknown to the court and counsel for the defendant prior to that time. 

### Ztwas immediately apparent to the court that: 

# "** * under these circumstances, MissKolar was not qualified nor should have been made part of thisjury unless this was known todefendant's attorney prior to this time. 11 Prior to determining a course of action, the court calledjuror Kolar into chambers and in the presence of counsel and defendant, the following transpired: "THE COURT: So would you have the bailif

### f,:aBkiher to come inhere. The last time I asked, 

### I think 

### I asked 

### Mrs. Hunt to come inhere and I scared the tar out of her. Well,-I don't want to scare the tar out of you. Ithas just come tomy attention and confirmed by 

### Mr. Douglas that prior to the time of this trial, in his.presence, you did observe and see the videotaping that had been conducted of the exhumation of the body. "MISS KOLAR: Yes. 

### "THE COURT: Well, now it 

### is my opinion that that should have in itself disqualified you from participating inthis trial, because you have observed part of the process of the interrogation and investigation of this case and that could affect your deliberations fiossiblyand this information, not being known toMr. Shaffer prevented him from possibly exercising the right of a peremptory challenge that he might have exercised ormight not have. Now, what 

### I am concerned with iswhether ornot during the course of this trial have you atany time discussed this factwith any other member of thejury? "MISS KOLAR: No, I have not. "THE COURT: And there hasn't been any juror that knows fromyou that you saw any of thisvideotaping or anything? "MISS KOLAR: No

# ." It was further developed upon questioning by defense counsel thatjuror Kolar was a friend of the county attorney, and "moreso" of hiswife and the videotape was viewed prior to going to see a movie. The court then further questioned juror Kolar: "THE COURT: Well, just one thing. As it pertained toyour participating on thejury and inthe voir dire, you felt that viewing that had not in any way affectedyour opinion as to the guilt or innocence of Mr. Baugh? "MISS KOLAR: No. 

### sir. "THE COURT: And you felt that since thiswas just a viewing of the exhumation that that inno way would affect your deliberations? "MISS KOLAR: No, it would not. "THE COURT: Now, did you feel that your friendship with 

### Mrs. Douglas and your knowledge of 

### Mr. Douglas would

, 

### .. !.in- any way affect your deliberations? MISS KOLAR: No, 

### sir." 

### The court then excused juror Kolar from further service and even though thisvinformation"should have been disclosed by 

### Mr. Douglas during the voir dire" the court felt the trial could proceed by seating one of the alternatejurors. The court's finding that no prejudice had resulted 

### is clear from the denial of defendant's motion for a mistrial.

I In open court, thejury, with the alternate sitting for

Kolar, was admonished: ':'THE COURT: JC

# *

# * Mr. Smith, atthis time, you should take thejury box and in so doing, although the Court knows ormakes this assumption, the reasons for

### Miss Kolar's not participating in any further proceedings should not and willhot affect the rest of you jurors participating in this case and that we are proceeding with the trial. That was one of the reasons we have alternatejurors if certain circumstances do arise. Now, atthis time, having reconvened, Mr. Douglas, call your next witness

# ." Atthe conclusion of the trial, after the jury had reached 

### itsverdict, but before that,verdictwas announced, the court questioned thejury:"THE COURT: During the time that Miss Kolar was a member of thejury, did she discuss with any of you any of the evidence on the trial? "THE JURY:' No. "THE COURT: Let the record show that allof the jury answer no to that question. That the previous question, they stated that thebringing of the defendant inhandcuffs into the courtroom in their presence didnot affect their deliberations and the presumption of the defendant's innocence until proven guilty. Now, the fact that 

### Miss Kolar was removed from thejury and Mr. Smith replaced her, did that inany way affect your deliberations on this case? "THE JURY: No .I1 Defendant was not prejudiced by the occurrence involving juror Kolar. While serious prejudice may have arisen ifjuror Kolar had participated in the verdict, those problems were thus arrestedby replacing her with an alternatejuror and the further safeguards taken by the trialjudge. The verdict and judgment of the trialcourt 

### is affirmed.



### .---We Concur: 1