NO. 94-196

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

-vsGARY DENNIS McMAHON,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourteenth Judicial District,

In and for the County of Meagher,

The Honorable Roy D. Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Bruce E. Becker, Attorney at Law, Livingston,

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Micheal

Wellenstein Ass't Attorney General, Helena, Montana

John V. Potter, Meagher County Attorney, White

Sulphur Springs, Montana

Filed:

Submitted on Briefs: March 16, 1995

Decided: May 4, 1995
Justice W. William Leaphart delivered the Opinion of the Court

Gary Dennis McMahon (McMahon) appeals his conviction in the

Fourteenth Judicial District, Meagher County, of misdemeanor

assault and two counts of felony intimidation. We reverse.

Since this matter is being remanded for retrial, we set forth

only enough facts to put the issue into proper context.

On September 16, 1993, McMahon took a high dosage of Valium

and codeine, brandished a rifle, and the sheriff was summoned. The

sheriff called to the scene found McMahon laying face down on the

floor of his trailer. The sheriff also found two pill bottles and

took them from the trailer to ascertain the threat the pills posed

to McMahon. McMahon allegedly came from the trailer with a knife

and threatened the sheriff physically and verbally until the

bottles were given back to McMahon. McMahon was handcuffed and

bound at the knees and ankles, and strapped to a gurney. It is

alleged that McMahon threatened to kill the sheriff and sheriff's

wife and threatened ambulance and hospital personnel. He was

charged with misdemeanor assault and two counts of felony

intimidation.

Six issues are presented:

1 . Was there sufficient evidence to support McMahon's

conviction for misdemeanor assault.

2 . Was the information charging McMahon with intimidation

defective?

3 . Was McMahon properly charged with intimidation?

4 . Did the District Court err in denying McMahon's motion

for a directed verdict?
5 . Did the District Court err in denying McMahon's motion

for mistrial when, during voir dire and in front of other

prospective jurors, several prospective jurors commented on

McMahon's reputation and one prospective juror commented on her

fear of McMahon arising out of the incident in question?

6 . Whether McMahon's intoxication rendered him incapable of

forming the requisite criminal intent.

Since we reverse on the basis of improper juror comments

during voir dire (Issue 5) we need not discuss Issues 1, 2, 3, 4,

and 6.

Did the District Court err in denying McMahon's motion for

mistrial when, during voir dire and in front of other prospective

jurors , several prospective jurors commented on McMahon's

reputation and one prospective juror commented on her fear of

McMahon arising out of the incident in question?

When asked about the difficulty of following the judge's

instructions regarding the presumption of innocence, prospective

juror P.H. stated that "I was kind of involved, you know what I

mean. When someone calls and says, 'You better come get your

children, because there's a guy with a gun,' then you know, I ran.

I was scared and they were scared. So, I don't know." Prospective

juror K.M. stated he should not be a juror because of extensive

time spent with McMahon in the classroom and his knowledge of

McMahon. He stated that "I've had different situations arise with

him." When being questioned about potential bias, prospective

juror C.C. stated "I could try to listen to all of the evidence.

It's kind of hard, because I've seen him downtown in action. I

know he's capable of doing things." The judge admonished that he

did not want the prospective jurors to address the specifics of any

prior knowledge they had about the defendant, but merely to answer

3
whether they had prior knowledge. McMahon's counsel moved for, and

the judge denied, a motion for a mistrial.

The standard of review applied to a district court's denial of

a motion for mistrial is "clear and convincing evidence that the

trial court's ruling was erroneous." State v. Gollehon (1993), 262

Mont. 293, 302, 864 P.2d 1257, 1263 (citation omitted). "The

decision of a district court judge as to the impartiality of a jury

should not be set aside unless there is clear abuse of discretion."

State v. Sullivan (1994), 266 Mont. 313, 320, 880 P.2d 829, 834.

Regarding juror prejudice, this Court further stated that:

It is only where [jurors] form fixed opinions of the

guilt or innocence of the defendant which they would not

be able to lay aside and render a verdict solely on the

evidence presented in court that they become disqualified

as jurors.

Sullivan, 880 P.2d at 834; Great Falls Tribune v. District Court

(1980), 186 Mont. 433, 439-40, 608 P.2d 116, 120. Although the

Court in Sullivan was considering whether the district court erred

in its failure to strike individual jurors for cause, its analysis

is applicable to the instant case.

In State v. Dixon (1994), 264 Mont. 38, 869 P.2d 779, we

upheld the conviction where the prosecutor's improper comments were

considered insignificant when viewed in the context of the entire

record. We noted that the judge instructed the jury not to use

comments such as counsel's as evidence, and to consider only

evidence when debating the verdict. Dixon, 869 P.2d at 781. In

State v. Walton (1986), 222 Mont. 340, 342, 722 P.2d 1145, 1146,

the prosecutor made potentially erroneous and prejudicial comments

4
regarding presentation of evidence to the judge but the judge

admonished the prosecutor, issued precautionary statements to the

jury, and the jury ultimately rejected several of the State's

charges. In State v. Gafford (1977), 172 Mont. 380, 563 P.Zd 1129,

we held that non-responsive and prejudicial answers by a

prospective juror were not cause for reversal when the defendant's

motion was not made at the first recess following the answers and

the answers had been invited by further questions of defense

counsel which were common and expectable. In State v. Rhodes

(1974), 164 Mont. 455, 524 P.2d 1095, we held that a mistrial for

prejudice against the defendants, caused by a juror's comments, was

not warranted because defense counsel did not make a sufficient

showing of prejudice.

These cases demonstrate a trend that improper comments by

prosecutors or prospective jurors about the defendant or about the

evidence, are not grounds for mistrial if the judge instructs the

jury to disregard the questionable comment and if the court is

satisfied that the juror can lay aside a fixed opinion and render

a verdict solely on the evidence presented. Sullivan, 880 P.2d at

834. In the instant case, the judge admonished the prospective

jurors to avoid bias and to confine their discussion to the fact

that they may have a bias rather than the substance or source of

that bias.

We conclude, however, that the prospective juror comments in

this case were so prejudicial that reversal is warranted. Comments

by prospective jurors C.C. and K.M. damaged McMahon's reputation

5
from the start. Prospective juror P.H.'s at the start of a two-day

trial--in which one of the primary issues was whether McMahon had

the ability to carry out his threats--clearly prejudiced McMahon's

right to a fair and impartial jury. McMahon contends that his

threats were conditional only and he had no ability to carry them

out. Certain prospective jurors commented, in the presence of the

entire panel of venireman, that they had "seen him downtown in

action," that "situations" had arisen with him, and that the

incident in question caused one of the prospective jurors to be

fearful. These comments served to directly contradict McMahon's

contention that his threats were mere words. They attested to the

jurors' beliefs that McMahon's threats were not idle, that he was

a man of action; and that he was a man who engendered fear in

others. It would be extremely difficult, if not impossible for any

juror, having heard these assessments of McMahon, to sit in

impartial judgment of his claim that he posed no threat to anyone.

Although the instant facts are different from those in Putro

v. Baker (19661, 147 Mont. 139, 410 P.2d 717, the decision in that

case is instructive. Putro was a passenger in an automobile which

was involved in an accident with a truck driven by Baker. Two

other occupants of the Putro vehicle were killed in the accident.

Baker pled guilty to manslaughter with regard to those two deaths.

Putro, the survivor, then filed a civil suit for personal injury.

By pre-trial order, it was ordered that there would be no reference

to the criminal proceeding in the civil suit. The Great Falls

Tribune published an article about the civil trial and made

6
reference to the fact that Baker had pled guilty to manslaughter as

a result of the two deaths. One of the jurors brought this article

to the jury room with her the following day. Three of the jurors

admitted to having read the article. Noting that the three jurors

denied having been influenced by the article and that two of the

three voted for the defense, the district court denied the motions

for mistrial and new trial. This Court reversed.

The trial court should have declared a mistrial in

justice to itself as well as to parties, so that a fair

trial may result and the verdict when rendered may be

entitled to the respect of both parties and the

confidence of the court. We cannot be too strict in

guarding trials by juries from improper influences. This

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. See Wright v.

Eastlick, 125 Cal. 517, 58 P. 87; Hayward v. Richardson

Construction Co., 136 Mont. 241, 347 P.2d 475, 77

A.L.R.2d 1144.

Putro, 410 P.2d at 722.

This Court then went on to hold that the trial court must

assess the "natural tendency" that the outside influence may have

upon the jurors' deliberations.

It is the duty of the trial judge to critically

assess the "natural tendency" of the references made in

a newspaper article. If, on its face, it has an apparent

prejudicial effect, and if possible and indeed probable

prejudice and bias would be created in the minds of the

jurors by reason of the damaging statement it contained,

the admissions by the jurors that they had read the

article, that it was in their presence in the jury room,

and that comments were made about it during their

deliberations upon a verdict, creates a situation of such

inherent unfairness that a mistrial should be ordered to

prevent a possible miscarriage of justice. In such a

case, contact of the jurors with outside, prejudicial

influences is clearly demonstrated.
Putro, 410 P.2d at 722.

The Court reversed the district court concluding,

that unexplained prejudicial references to important

matters in litigation may have a "natural tendency" to

infect the proceedings with an unfairness that can be

corrected only by starting anew the legal contest.

Restricting the source of the facts to be considered by

the jury to the witness stand is important in all cases.

Putro, 410 P.2d at 722.

Although the improper influence (newspaper article) in Putro

is factually distinguishable from the improper influence

(volunteered comments during voir dire) in the present case, the

principles established in Putro are equally applicable in this

matter. In particular, the principle that "any improper influence

which has the natural tendency to prejudice the verdict is grounds

for a mistrial." Pub-o, 410 P.2d at 722. Under the present facts,

we hold that comments made in the presence of the entire panel

indicating that certain jurors not only knew the defendant but were

aware of his propensity for violence were highly prejudicial. Such

prejudicial comments have a "natural tendency" to infect the

proceedings with an unfairness that can be corrected only by

declaring a mistrial and "starting anew the legal contest."

Our holding in this case should be interpreted narrowly,

reserved only for the most egregious and prejudicial prospective

juror comments; our holding does not encompass all statements

volunteered by prospective jurors during voir dire. It pertains

only to those comments which indicate the prospective juror is

harboring a bias which he or she cannot lay aside or those comments

which, when made in the presence of other prospective jurors,

8
amount to inadmissible opinions or comments about the defendant's

character or propensities, thereby poisoning the perspective of the

entire jury panel in such a way that the court cannot rectify the

problem through admonishment or curative jury instructions.

In future cases, it would be advisable for district courts,

before voir dire commences, to advise prospective jurors not to

volunteer the substance of any comments or opinions that they may

have about the parties. Rather, that they should merely advise the

court that they have information (or an opinion) about a party.

The trial Judge can then explore the substance of that information

in camera thereby avoiding any taint to the entire jury panel

Reversed.

Justices
May 4, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail,

folio wing named:

BRI.ICE E. BECKER

-__. _L T _... Atton~y ar maw

P.O. Box 1113

Livingston, MT 59047

ED !

CLE

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BY: %A

Deputy -

SMITH

RK OF THE SUPREME

TE OF MONTANA

HON. JOSEPH P. MAZ-..-._, _ ____ -..-,- _______

Micheal Wellenstein, Assistant

Justice Bldg.

Helena, MT 59620

JOHN V. POTTER

Meagher County Attorney

P.O. Box 629

White Sulpher Springs, MT 59645

prepaid, to the

COURT

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