No. 82-32 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF 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 Douglas Harkin, Judge presiding. 

Counsel of Record: 

For Appellant: 

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, County Attorney, 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 deliberate homicide. The 

judgment in this case arises from a retrial this Court 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 full it 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 statute defining the offense. 

"In this action the statute requires that the 

Defendant performed the acts knowingly or purposely. 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 cause 
that result. When a particular purpose is an 

element of an offense the element is 

established, a1 though 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 

- any -- voluntary - 

act committed by him. This prK - - 

sumption, however, is termed a disputable presumption and may be controverted by other 

evidence. " (Emphasis added. ) 

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 

judge Is instruction as constituting either a burden shifting presumption . . . 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? We must answer in the negative. 

In this case, as in Sandstrom, the instruction obviously permitted the jury to presume intent without 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 convict ion 

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 ordinary consequences of his voluntary acts." We found 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 that result." 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 to presume that he intended the ordinary consequences of his 

voluntary acts; that he shot at the McLeans intending to kill or 

seriously injure. Sunday admitted that. The only issue was 

whether or not the shooting was done in self 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 

that because Musgrove pulled the trigger, he intended to kill the 

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), 

Mon t . -- , 605 P.2d 1051, 36 St.Rep. 2237. However, in 

this case, af ter a reading of all of 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 in Sandstrom v. Montana: 

"We do not reject the possibility that some 

jurors may have interpreted the challenged 

instruction as permissive, or, if mandatory, 

as requiring only that the defendant come forward with 'some1 evidence in rebuttal. 

However, the fact that a reasonable juror 

could have given the presumption conclusive or 

persuasion-shif ting effect means that we cannot discount the possibility . . ." 442 U.S. 

at 519. 

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 take place. However, in regard to this issue, our statute, 

section 46-16-701, 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 

strictly construe 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 carefully guard the record to see that none 

of the parties involved lose or gain any rights because of the 

result of the previous trial. The fair trial issue must predominate in the 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. 

If counsel, on retrial, argues appellants right to carry a loaded 

pistol, then the State may counter as it did in this trial. 

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 exists and that by reason of the prejudice there is a reasonable apprehension that 

the accused cannot receive a fair and impartial trial." 

State v. Austad (1982), - - - - - . -- Mont . , 641 P.2d 1373, 

1381, 39 St.Rep. 356, 364; State v. Link (1981), Mont. --- I 

640 P.2d 366, 38 St.Rep. 982. In looking at the record, and the 

characteristics of 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 

only about 993 residents. This alone substantially increases the 

probability that publicity concerning the case could be pervasive 

in the 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 that the results and content of the 

prior trials have been widely disseminated is much 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&&! Chieff Justice .?%i-Jq 
Ilk. Justice Daniel J. Shea, specially concurring: 

I join the majority in ruling that defendant is entitled to a 

new trial &cause the unconstitutional Sandstrom instruction was 

qiven . 

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

District Court with prospective jurors in the absence of defendant 

and his counsel--need not be decided, for future guidance, this 

Court should have provided a detailed analysis of what happened and 

why the procedure should be condemned. And the same is true of the 

second issue--defendant's contention that he was prejudiced by 

references to his first trial. This Court should have set forth 

some quidelines in an effort to eliminate potential prejudice 

arising from mentioning that a defendant is being tried for a second 

or even. third time. On the third issue, I agree with the Court that 

defendant opened the door by defense counsel's statement in the 

opening statement and therefore no preiudice occurred because the 

State went into the concealed weapon issue during its case in chief. 

H"