No. 13547 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRANDALL CRAIG BAUGH, 

Defendant and Appellant. 

Appeal from: District court 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 i 5 ]gn 

Filed: lU\( , S :~fl 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

In August 1975, the body of ~avidscca was discovered 

in an isolated area of Lincoln County, Montana. Sometime after 

that, warrants of arrest were issued for Randall Craig Baugh, 

defendant herein, and William Beechman. William Beechman has 

never been found. In November 1975, Randall Craig Baugh turned 

himself in to the authorities. Defendant was arraigned and 

plead not guilty to the charge of deliberate homicide in the 

District Court, Lincoln County. 

Pretrial motions were made by the state and the defense. 

Among these was a motion by the state to amend 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 deliberate homicide of Davidmcca. One, 

Randy Jacobsen, was arrested before the defense could talk to 

him and held over night. It was a week after this incident 

that Jacobsen consented to an interview by the defense. The 

other witness, William Phillip Stuart, was arrested in New Mexico 

and then released. The defense requested the court to help 

locate Stuart. 

The court ordered the Lincoln County sheriff's office to 

cooperate with the Lincoln County public defender's office in 

locating Stuart because the Lincoln County public defender has 

no budget or personnel to pursue such matters. The Lincoln 

County sheriff's office located Stuart in New Mexico, did not 

inform the public defender, but instead informed the Lincoln 

County attorney, who then flew to New Mexico, interviewed Stuart, 

arrested him, gave him a polygraph examination, released him, 
flew back to Montana, and then informed the defense and the court 

of the whereabouts of Stuart. 

Trial was had in Lincoln County, Montana, starting on 

May 17, 1976. The jury was interviewed prior to voir dire by 

Hon. Robert C. Sykes, because of a controversy that existed at 

that existed at that 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 first motion was made because defendant had been brought to 

court on the morning of May 21 in handcuffs, and thoehandcuffs 

were unlocked in front of the jury 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 at this videotape showing. 

Both motions for mistrial were denied; Kolar was excused 

and an alternate juror was seated. A further motion for mistrial was made and a motion for a directed verdict. 

Defendant was found guilty and sentenced to 75 years in 

the Montana state prison. Defendant appeals from the judgment, 

and presents four issues on appeal: 

1. Whether a defendant charged with deliberate homicide 

has a right to a jury instruction on mitigated deliberate homicide? 
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 in handcuffs before a jury? 

4. Whether the replacing of a juror who is a personal 

friend of the prosecutor and has personal knowledge of evidence 

of the. case is error, if replaced by an alternate juror prior 

to the time the jury goes into deliberations? 

Issue 1. Is a defendant charged with deliberate homicide 

entitled to a jury instruction on mitigated deliberate homicide 

even though no evidence is presented 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. At trial, defendant's 

attorney, in his opening statement stated: 

"* * * 'Now,-,Randy will take the stand and I will tell 

you essentially what he will say. He has no knowledge 

or information as to how ~avidGcca met his death, he 

could speculate and that is all it would be is pure 

speculation, he doesn' t know, * * *" 

This Court reaffirmed the Montana rule on the requirement 

fbr an instruction on mitigated deliberate homicide in State v. 

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 or not any evidence exists in the record to 

warrant an instruction on mitigated deliberate homicide .'' 

557 P.2d 285. 
The United States Supreme Court in Keeble 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 the jury rationally to find 

him guilty of the lesser offense and acquit him of the greater. 

In the instant case there was no evidence in the record to 

show mitigation as required by section 94-5-103. In fact, 

defendant's theory throughout the trial was that he did not 

murder the victim. In State v. McDonald, 51 Mont. 1, 16, 149 

P. 279 (1915), it was said: 

"* * * In many instances, however, the evidence is such 

as to show that the defendant is either guilty of the 

offense charged or is entitled to an acquittal. In 

such cases the court may not be put in error for refusing 

or failing to instruct as to the lower degree or the 

included offense ." 

This rationale applies to the instant case, and the trial court 

acted properly in not 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 counselfs efforts to interview 

these same witnesses. This Court in State v. 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 its public officers, to secure the conviction of one of its citizens by any available means, 

fair or foul. The Constitution guarantees to everyone 

accused of crime a fair and impartial trial * * * 

and the state had 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 substantially diminished. Yet, there is no showing how 

the prosecution intimidated these witnesses or that it instructed them not to cooperate with the defense attorney, or 

that it otherwise attempted to directly impede the effectiveness 

of defense counsel. The record shows that at the time these 

witnesses were interviewed and arrested, they were potential 

defendants in this case. There is extensive discussion in1 the 

record concerning these witnesses. It is clear from that 

discussion the court took every action possible to provide 

the defense access to them. 

While defense counsel may have had difficulty in locating 

and interviewing witnesses Jacobsen and Stuart, there is nothing 

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 in handcuffs by a deputy sheriff. 

Apparently the handcuffs were removed once defendant was in the 

courtroom. Counsel for defendant contends defendant having been 

seen by the jury in handcuffs is reversible 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 to give the court opportunity to question 

the jurors after the verdict was in to determine whether the 

jurors were influenced by the handcuff incident. This was done 

after the jury reached its verdict, but before it was 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 the jury observe the defendant during 

the course of the trial being brought into the 

courtroom in handcuffs? 

"THE JURY: Yes sir. 

"THE COURT: Now, did that in any way affect any of 

you in your deliberations as to his guilt or innocence? 

''THE JURY: No. 

"THE COURT: It did not, any of you? 

The basic principles of the criminal justice system is 

that an accused, whatever his past record, is presumed innocent 

until proven guilty beyond 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 the jury, he is ordinarily 

entitled to be relieved of handcuffs, or other restraints, so 

he will not be mded as an obviously bad person or to suggest 

that the fact of his guilt is a foregone conclusion. United 

States v. Samuel, 431 F.2d 610, 614 (4th Cir. 1970). 

The Montana case closest in point is State v. Bentley, 155 

Mont. 383, 472 P.2d 864 (1970). There this Court held the 

defendant was not prejudiced by having to wear jail clothing 

during the trial. However, the Ninth Circuit Court in Bentley 

v. Crist, 469 F.2d 854 (1972), reversed the Montana holding 

and held that compelling the accused to wear prison clothing 

mag deny him the presumption of innocence. 

In State v. Sawyer, 60 Wash.2d 83, 371 P.2d 932 (1962), - 

the defendant was handcuffed in the courtroom upon adjournment, 

much like the instant case wherein the defendant was brought 

into court handcuffed and then unlocked. The court found no 
prejudicial error. Sawyer relied upon Way v. United States, 

285 F.2d 253, 254, (10th Cir. 1960) where, as here, the 

defendant was brought into trial handcuffed, 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 does Inot warrant 

the granting of a new trial." It is incumbent upon defendant 

to demonstrate actual prejudice, which he has not done here. 

The Ninth Circuit in United States v. Kress, 451 F.2d 576 (1971), 

held that an appearance before the jury during trial by 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 all bonds or shackles, this right being an important 

component of a fair and impartial trial. However, in State 

v. Jones, 130 N.J.Super. 596, 328 A.2d 41 (1974), the court 

held defendant's right to be free of shackles during trial need 

not be extended to the right to be free of shackles while being 

taken back and -forth between the courthouse and the jail. Most 

courts now agree with Sawyer that a defendant is not denied a 

fair trial and is not entitled to a mistrial solely because he 

was momentarily and inadvertently seen.:in handcuffs by jury 

members. 

In the instant case counsel for defendant admits the jury 

was well aware of the fact defendant was in custody and not 

free on bail. There is no indication this occurrence was 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 after the trial 

commenced it came to the court's attention that juror Kolar, 

along with the county attorney and his wife had, several months 

prior to trial, viewed a videotape of the exhumation of the 

deceased. This fact was unknown to the court and counsel for 

the defendant prior to that time. Zt was immediately apparent 

to the court that: 

"* * * under these circumstances, Miss Kolar 

was not qualified nor should have been made part 

of this jury unless this was known to defendant's 

attorney prior to this time. 11 

Prior to determining a course of action, the court called juror 

Kolar into chambers and in the presence of counsel and defendant, 

the following transpired : 

"THE COURT: So would you have the bailif f,:aBki her 

to come in here. The last time I asked, I think 

I asked Mrs. Hunt to come in here and I scared the tar 

out of her. Well,- I don' t want to scare the tar out 

of you. It has just come to my 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 in this trial, because you have observed part 

of the process of the interrogation and investigation 

of this case and that could affect your deliberations 

fiossibly and this information, not being known to Mr. 

Shaffer prevented him from possibly exercising the 

right of a peremptory challenge that he might have 

exercised or might not have. Now, what I am concerned 

with is whether or not during the course of this trial 

have you at any time discussed this fact with any 

other member of the jury? 

"MISS KOLAR: No, I have not. 

"THE COURT: And there hasn't been any juror that 

knows from you that you saw any of this videotaping 

or anything? 

"MISS KOLAR: No ." 

It was further developed upon questioning by defense counsel 

that juror Kolar was a friend of the county attorney, and "more 
so" of his wife 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 

to your participating on the jury and in the voir 

dire, you felt that viewing that had not in any way 

affected your opinion as to the guilt or innocence 

of Mr. Baugh? 

"MISS KOLAR: No. sir. 

"THE COURT: And you felt that since this was just a 

viewing of the exhumation that that in no 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 alternate jurors. 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, the jury, with the alternate sitting for 

Kolar, was admonished: 

':'THE COURT: JC * * Mr. Smith, at this time, you should 

take the jury box and in so doing, although the Court 

knows or makes this assumption, the reasons for Miss 

Kolar's not participating in any further proceedings 

should not and will hot 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 

alternate jurors if certain circumstances do arise. 

Now, at this time, having reconvened, Mr. Douglas, call 

your next witness ." 

At the conclusion of the trial, after the jury had reached 

its verdict, but before that,verdict was announced, the court 

questioned the jury: 
"THE COURT: During the time that Miss Kolar was 

a member of the jury, did she discuss with any of 

you any of the evidence on the trial? 

"THE JURY :' No. 

"THE COURT: Let the record show that all of the 

jury answer no to that question. That the previous 

question, they stated that the bringing of the 

defendant in handcuffs into the courtroom in their 

presence did not affect their deliberations and the 

presumption of the defendant's innocence until proven 

guilty. Now, the fact that Miss Kolar was removed 

from the jury and Mr. Smith replaced her, did that 

in any 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 if juror 

Kolar had participated in the verdict, those problems were 

thus arrested by replacing her with an alternate juror and the 

further safeguards taken by the trial judge. 

The verdict and judgment of the trial court is affirmed. 

.---We Concur : 

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