### No. 82-32 

### IN THE SUPREME COURT OF THE STATEOF MONTANA

STATEOF MONTANA, Plaintiff and Respondent,

THURMAN J. MUSGROVE, Defendant,

INTERNATIONAL FIDELITY INSURANCE COMPANY, BONDING COMPANY, Petitioner and Appellant.

Appeal from: District Court of the Fourth Judicial District, In and for the County of Mineral Honorable DouglasHarkin,Judgepresiding. Counsel of Record: ForAppellant: C. J. Tornabene argued, Missoula,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Sarah Powers argued,Assistant Attorney General,

Helena, Montana M. 

### Shaun Donovan,CountyAttorney, Superior,Montana

submitted: FTovembei-

### 26, 1982 Decided: December 29, 

### 1982 Filed: 

## DEC

## &

# 8

# I%%!Mr. Justice John Conway Harrison delivered the Opinion of the Court.

Defendant appeals a Mineral County judgment finding him guilty, for a second time, of mitigated deliberatehomicide. The judgment inthiscase 

### arises from a retrial thisCourt ordered in State v. Musgrove (1978), 178 Mont. 162, 582 P.2d 1246. This time, defendant presents four issues to this Court. First, defendant contends the District Court erred by discussing issues 

### of the case with prospective jurors, in the absence of defendant and his counsel, without recording the discussion. Second, defendant argues the 

### trial court erred by allowing references 

### to defendant's prior 

### trial. Third, defendant contends the trial court erred by admitting evidence of a 

### crime defendant



### was not charged with. Fourth, defendant 

### claims the trial court violated his rights to due process by giving the jury the following instruction: "The 

### law also presumes that a person intends the ordinary consequences of any voluntary 

### act committed by him." We need only analyze the fourth issue, and because 

### we find 

### error, 

### we must reverse and remand for a new trial. In view of our reversal in this 

### case, comment will 

### also be directed to issues 

### two and three. The instruction complained of 

### was jury instruction number seven; in fullit states: "In every 

### crime 

### or public offense the State must establish each element described by the statute defining the offense and the State must further establish that the Defendant acted while having the mental 

### state required by the statutedefining the offense. "In this action the statute requires that the Defendant performed the acts knowingly orpurposely. A person acts knowingly with respect to conduct 

### or 

### to a circumstance described by a statute defining an offense when he is aware of his conduct 

### or that the circumstance exists. When knowledge of the existence of 

### a particular fact is an element of the offense, such knowledge 

### is established if 

### a person is 

### aware of a high probability of its existence. "A person 

### acts purposely with 

### respect 

### to a result 

### or to conduct described by a statute defining an offense if it 

### is his conscious object to engage in that conduct 

### or to causethat result. When a particular purpose 

### is an element of an offense the element is established, a1though such purpose is conditional unless the condition negates the harm or evil sought to be prevented by the 

### law defining the offense

# . "Any required mental 

### state need not be proved by direct evidence but may be inferred from 

### acts, conduct and circumstances appearing in the evidence. The 

### law also presumes that a ---- - person intends the ordinary consequences 

### of -- anyvoluntary actcommitted by him. ThisprK 

### - ---- 

### - sumption, however, 

### is termed a disputable presumption and may be controverted by other evidence.

### " (Emphasisadded.) The underlined portion, which may be referred to as the "Sandstrom instruction

## ," is the focus of appellant's argument. Appellant contends the giving of that portion of instruction number seven is clearly reversible 

### error in view of the United States Supreme Court's holding in Sandstrom v. Montana (1979), 

### 494 4-552-U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. In that case, the United States Supreme Court struck down as unconstitutional an instruction 

### almost identical 

### to the language emphasized above 

### "[blecause David Sandstrom's jury may have interpreted the judgeIsinstruction

### as constituting eithera burden shiftingpresumption

# . .

# . or a conclusive presumption

# . . ." 422 U.S. 

### at 524.On remand to this Court, the question was "whether the 

### erroneous instruction constituted harmless 

### error as against the defendant." State v. Sandstrom (1979) -.- Mont

# . 603 P.2d 244, 245, 36 St.Rep. 2099, 2100. We found reversible



### error. We reversed because 

### "[t] he erroneous instruct ion [went] to a vital element of the proof of the 

### crime, namely the intent of the defendant Sandstrom in committing the homicide. If the jury followed the instruction, it could have presumed the intent without proof beyond a reasonable doubt." Mont. at I 603 P.2d 

### at 245, 36 St.Rep. at 2101. In the case now before us, the question 

### is the 

### same, 

### was the giving of the instruction harmless 

### error? Wemust answer inthe negative. Inthiscase, 

### as inSandstrom, the instructionobviouslypermitted the jury 

### to presume intentwithout proof beyond a reason-able doubt. The defendant's intent was a hotly contested issue of fact in the 

### case and intent 

### is an important element of the 

### crime the State charged. Because of the instruction, the jury could disregard the defendant

### s testimony that he intended only 

### to fire a warning shot; then with the presumption of intent, the jury could have concluded that the defendant used deadly force to intentionally kill the victim. Therefore, because of the Sandstrom instruction, the State could obtain a conviction without having 

### to introduce any evidence of the defendant's intent. Respondent argues that the issue here was not intent but justification in the use of force by the defendant, and since intent was not an issue, the giving of the Sandstrom instruction

was harmless error. Respondent cites State v. Sunday (1980)

## ,

-- -- Mon

### t

# . , 609 P.2d 1188, 37 St.Rep. 561, to support 

### its argument. In Sunday the jury 

### was given the Sandstrom instruction; "the 

### law presumes that a person intends the ordinaryconsequences of hisvoluntary acts." Wefound the giving of the instruction 

### to be, at 

### most, harmless error. Such 

### was our holding because by Sunday's own admission, his object 

### was "to shoot the McLeans 

### or to cause thatresult." Consequently, it 

### was

never an issue whether Sunday purposely 

### or knowingly shot the victims. In other words, overwhelming evidence established the presumption of the Sandstrom instruction. Sunday's jury did not have topresume thathe intended the ordinaryconsequences of his voluntary 

### acts; thathe shot at the McLeans intending to kill

### or seriously injure. Sunday admitted that. The only issue was whether ornot the shootingwas done inself defense. This case is distinguishable from Sunday. Here, the defendant testified that he only intended to fire a warning shot. However, the Sandstrom instruction allowed the jury 

### to presume thatbecause Musgrove pulled the trigger, he intended 

### to killthe victim. The respondent also argues that the instruction 

### was per-missive in nature rather than mandatory; consequently, the principles of Sandstrom were not violated. We have recognized this distinction in State v. Bad Horse (1980), ---- Mont. I 605 P.2d 1113, 37 St.Rep. 45, and State 

### v. Coleman (1979), Mont

# . -- 

## , 605 P.2d 1051, 36 St.Rep. 2237. However, in thiscase, af

### ter a reading of allof the jury instructions, especially the full text of instruction no. 7, we cannot be certain beyond a reasonable doubt that members of the jury did not misconstrue the instruction. As the United States Supreme Court stated inSandstrom v. Montana: "We do not reject the possibility that 

### some jurors may have interpreted the challenged instruction as permissive, 

### or, if mandatory, as requiring onlythatthe defendant come forward with 

### 'some1 evidence in rebuttal. However, the fact that a reasonable juror could have given the presumption conclusive 

### or persuasion-shifting effect means that we cannot discount the possibility

# ..

# ." 442 U.S. 

### at519. Accordingly, 

### we must reverse. The 

### matter of references to previous trials should not occur if the trial court follows our recommendation that a change of

venue takeplace. However, inregard to this issue, our statute, section46-16-701, MCA, provides: "a Inew trial is a reexamination of the issue in the 

### same court before another jury after a verdict 

### or a finding has been rendered. The granting of a new trial places the parties in the 

### same position as if there had been no trial

# ." Appellant contends that this statute compels an automatic reversal if anyone (other than defendant or his witnesses) mentions that there has been another trial. We decline to so strictlyconstrue this statute. We can envision many situations where it may be necessary to mention the fact there has been another trial. 

### We direct the trial court and counsel for the State and defense to carefullyguard the record to 

### see that none of the parties involved lose or gain any rights because of the resultof the previous trial. The fair

### trial issuemust predominate inthe new trial.Concerning issue three, the fact that the appellant did not have 

### a gun permit, 

### we note that this issue 

### was created by the opening argument of appellant's counsel and suggest that on retrial the court admonish counsel not 

### to repeat this argument. Ifcounsel, on retrial, argues appellantsright to carry a loaded pistol, then the Statemay counter as it did inthistrial. Finally, 

### we direct the District Court grant

### a change of venue for

### retrial in this case. In Montana, the rule pertaining to a change of venue 

### is: 

# ".

.

# . an accused 

### is entitled 

### to a change of venue when it appears there 

### are reasonable grounds to believe that the prejudice alleged actually existsand thatby reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial." State v. Austad (1982), ---- -. -- Mont

# . , 641P.2d 1373, 1381, 39 St.Rep. 356, 364; Statev. Link (1981), Mont. 

### --- I 640 P.2d 366, 38 St.Rep. 982. In looking 

### at the record, and the characteristicsof Mineral County, 

### we think there

### are a number of

reasons to support 

### a change of venue in this case. First, it is obvious that Mineral County is a very 

### small county containing onlyabout 993 residents. This alone substantiallyincreases the probability thatpublicity concerning the 

### case could be pervasive inthe county and affect the opinions of potential jurors. As a stronger reason, however, 

### we note that there have already been 

### two trials in this county. Each of these trials

### were hotly contested and attended by many residents of the county. Consequently, the possibility thatthe results and contentof the prior trialshave been widely disseminated ismuch higher than if

no previous trials had occurred. Therefore, the criteria for a change of venue articulated in Link and Austad are 

### to be -- fulfilled. Reversed.Xe concur:

"fi&&!

ChieffJustice

# .?%i-JqIlk. 

### JusticeDanielJ. Shea,specially concurring:

I 

### join the majority in ruling that defendant is entitledto a



### new trial &cause the unconstitutional Sandstrom instructionwas qiven

# . Although the first issue--discussion of the case by 

### the District Court withprospective jurors 

### in the absenceof defendant and his counsel--need not 

### be decided, for future guidance, this Court should have provided adetailed analysis of whathappened and why the procedure shouldbe condemned. And the same istrue of the second issue--defendant's contention that he was prejudiced 

### by references to his first trial. This Court shouldhave set forth



### some quidelines in an effort to eliminate potential prejudice arising from mentioning that a defendant isbeingtried fora second

oreven.thirdtime. Onthethird issue,I

### agreewiththeCourtthat defendant opened the door by 

### defense counsel's statement 

### in the opening statement and therefore no preiudice occurred because the Statewent into the concealed weapon issue during its case 

### inchief.

H"