No. 12948 INTHE SUPREME COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA, Plaintiff and Respondent,

JERRY ALLEN HERRON, Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, Honorable Robert Keller, Judge presiding. Counsel of Record: For Appellant: Daniel J. Shea argued, Missoula, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas A. Budewitz, Assistant Attorney General,

argued, Helena, Montana Robert L. Deschamps, 111 argued, County Attorney,

Missoula, Montana

Submitted: November 12, 1975

Filed: 

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,Mr. Justice John Conway Harrison delivered the Opinion of the Court.

Defendant appeals from his conviction of attempted second degree murder and the 25 year sentence imposed in the district court, Missoula County. On October 20, 1972, a teen-age girlwas riding her bicycle on the highway near Clearwater Junction. She was shot by a shotgun fired from a passing vehicle. Defendant JerryAllen Herron was arrested the same day and was ultimately tried for four alternative crimes: 1)Attempted second degree murder. 2) First degree assault with intent tokill. 3) First degree assault with attempt tocommit a felony. 

### 4) Second degree assault. The first trial on these charges was held in June 1973. The jury was given these two instructions, among others:

11Instruction No. 

### 20, The crimes charged against the Defendant are allfelony offenses. Therefore, all twelve of your number must agree in order to return a verdict of guilty ornot guilty, and alltwelve of your number must agree in order to decide any question necessary tobe decided inarriving ata verdict on a crime.

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It 

### isnecessary that you consider the crime of attempted murder first, and find the defendant either guilty ornot guilty of that charge. "1n the event you find the defendant guilty of attempted murder you need go no further as you 

### will have reached 

### a verdict in this case. "In the event you find the defendant not guilty of attempted murder, then you must consider the crime of Assault in the First Degree with intent tokill as embodied in alternativeCount I1 of the Information. You must find the defendant either guilty ornot guilty of Assault in the First Degree with intent to kill. In the event you find the defendant guilty of that charge, you have reached a verdict and need go no further. "In the event you find the defendant not guilty of Assault inthe First Degree with intent tokill, you must consider the alternative Count Number I11 of the Information which isAssault in the First Degree with intent tocommit a felony. In the event you find the defendant guiltyof that charge, you have reached 

### a verdict and need go no further."1n the event you find the defendant not guilty of Assault in the First Degree under both Counts I1 and 111, you must then consider the lesser included offense of Assault in the Second Degree. You must find the Defendant guilty ornot guiltyof this charge, and when you do so, ou have reached a verdict and need not proceed further.

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Instruction No. 24 When you retire to thejury room, you shall select one of your number toact as foreman, who 

### willpreside over your deliberations. In order to reach a verdict, alltwelve jurors 

### must agree to the decision. As soon asyou have agreed upon a verdict, you shallhave it dated and signed by your foreman and then shallreturn with it to this room." The jury was provided with eight forms of verdict. The jury deliberated one entirenight, returned to court at 5:40 a.m. and announced 

### its failure toreach a verdict, and was discharged. Three days later a member of thejury telephoned defendant's attorney for the stated purpose of informing him what had actually occurred during thenight of jury deliberations. According tothe affidavit of thisjuror, which was filedby defendant's attorney, thejury had actuallyvoted unanimously to acquit defendant of attempted second degree murder, first degree assault with intent to kill, and first degree assault with intent to commit a felony. The jury was deadlocked only on defendant's guilt or innocence of second degree assault. ~efendant's counsel contacted thejury foreman by phone who substantially corroborated these events and further explained the reason why no verdict forms had been signed to reflect the verdict. According tothe foreman's affidavit, the jury was confused by two instructions, No. 20 and No. 24, heretofore quoted. The jurors asked the bdiff toconvey a question to the presiding judge as towhether they should sign the first verdict form before proceeding to the next charge. No record exists concerningwhat thebailiff asked thejudge orwhat thejudge replied to the bailiff, asno court reporter was inattendance and no attempt was made tonotify either counsel of thejurors' confusion. The affidavitindicated thebailiff told thejury foreman that thejury was to arrive atonly one verdict in the case and therefore should sign only one form. These events were corroborated by the affidavits of the otherjurors. Their version of eventswas never questioned by the state in 

### itsbrief or oral argument on appeal. The second trial of defendant was held in December 1973. Defendant was tried on the same charges, with one exception; the charge of first degree assault with intent tokillwas dismissed. The jury was unable toreach a verdict on the remaining three charges atthe second trial. A third trialwas held in June 1974, on the same charges as in the second trial. Defendant was convicted of attempted second degree murder and sentenced to 

### 25 years imprisonment in the state prison, where he is presently incarcerated. Atthe second and third trials defendant maintained the district court had no jurisdiction to tryhim again on charges of attempted second degree murder or first degree assault with intent to commit 

### a felony, because he had been acquitted of both charges atthe first trial. His claim 

### isbased on the double jeopardy provision of the Federal and StateConstitutions. They provide

### :Amendment 5, United States Constitution:

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# * nor shallany person be subject for the same offense tobe twice put injeopardy of life or limb

# * $< Y<. I' Article 11, Section 25, 1972 Montana Constitution: 

# "*** No person shallbe again put injeopardy for the same offense previously tried in any jurisdiction, 11 The double jeopardy provision of the United States Constitution prohibits being twice placed on trial, aswell as twice punished for the same offense. 

### It does not prohibit retrial for the same offense if the first trialresults 

### i.na hung jury. We findno reason toconstrue the double jeopardy provision of Monta~a'sConstitution otherwise. The ultimate question on appeal 

### iswhether the record in this case discloses an acquittal or a hung jury atthe first trialon the charge of attempted murder. This issuemust stand

or fallon the answer tothese questions: 1. The,effectof the oral communication between the jury and the court inthe absence of counsel? 2. Whether juror affidavits can be used to supply proof of actual events that occurred duringjury deliberation? In view of the fact this defendant was tried three times before conviction and defense counsel raised the issueswe 

### are about todiscuss atthe second and third trials, this Court 

### is at

a loss tounderstand why, upon discovering the facts after the first trial, he did not apply to this Court for a 

### writ of supervisory control. His failure todo so caused the expense of two needless trials, along with unnecessary trauma tohis client. The oral communication between thejury and the court via thebailiff clearlyviolates section 95-1913(d), R.C.M. 1947: "(d) After Retirement, May Return intoCourt for Information. After the jury has retired for deliberation if there be any disagreement among them as to the testimony, or if they desire tobe informed on any point of law arising in the cause, they must require the officctoconduct them into court. Upon being brought intocourt, the information requested may be given in the discretion of the court; if such information



### is given it must be given in the presence of the county attorney and the defendant and his counsel." 

### It also violates the proscription against oraljury instruction. State

### v. Beesskove, 34 Mont. 41, 

### 85 P. 376; State v. Wakely, 43 Mont. 427,437, 117 P. 95; Statev. Asher, 63 Mont. 302,306, 206 P. 1091; State

### v. Gies, 

### 77 Mont. 62,64, 249 P. 573. As a general rule additional instructions to thejury 

### must comply with the law and failure to follow the law constitutes reversible error. The vice of the situation here 

### is that defendant's attorneywas not notified nor present and had no way to protect hisclient from the jury's confusion. This 

### is patently prejudicial. Had thejury convicted defendant of the charge of attempted murder atthe first trial, the verdict would have had tobe set aside because of reversible error, chargeable to the state. Can juror affidavits be used toprove what occurred duringjury deliberations? The district court, prior to the second trial, held that they could not on the ground thatjuror affidavits cannot be used toimpeach jury verdicts in Montana. This holding is error. In the instant case thejuror affidavits were not used to impeach thejury verdict, because thejury did not return a verdict of any kind. The affidavit was used to show that because of outside influences on thejury during 

### its deliberations, a verdict of acquittal on three of the charges was actuallyrendered by the jury but was not returned to the court due to the confusion over jury instructions. The statedoes not deny this. Justice compels the use of juror affidavits toprove what actually occurred. For the foregoing reasons, thejudgment of conviction of attempted second degree murder 

### is vacated. The cause 

### isremanded to the district court forretrial on the remaining charge of second degree assault.

### Mr. Chief Justice James T. Harrison and 

### Mr. JusticeWesley Castles dissenting: t We dissent. The order declaring a mistrial as a result of a deadlockedjury was made on June 29, 1973. It was not until December 

### 2, 1973, that the effort to, in effect, impeach a jury verdict was made. In the transcript of proceedings taken before Judge Keller on December 3, 1973, Judge Keller inquired specifically

as toJudge ~ussault's recollections; counsel had not even inquired. Nor was thebailiff questioned. Judge Keller carefully inquired and finallyruled. Judge Keller stated inpart: 

### "MR. SHEA: For the record, Your Honor could the Court state the grounds for denying themotion? "THE COURT: Yes. This 

### is an effort to in essence impeach a verdict of a jury orvirtually to bring out what a true verdict was, one inopen Court before thejury announced that they cannot agree upon a verdict and thejury was discharged atthat time for the reason that they could not agree upon a verdict and nothing furtherwas done atthat time. 

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# * The motion 

### is denied for thereason that this jury has been discharged and this effort tofind out what thatjury did comes in the first instance some days after---the firstMotion forAcquittal was filed some days after thejury had been discharged and with respect to the part that the inference that the Court had misinstructed thejury, that comes months after thejury had been discharged and inboth cases well after the possibility for thejury tobe contacted by other persons could have occurred. 

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# * "The firstmotion is to instruct the Defendant and his counsel and as faras the Court 

### is concerned, it means allparties to the Defendant and his counsel, not toindicate in any way that thejury previously impaneled in this casewas atone point in the deliberations 

### 11 to 

### 1for complete acquittal. +: 

# ** In as far as voir diring thisjury panel is concerned, they cannot go intowhat the alleged vote was of thatjury. 9: 

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# *" Then later the following exchange appears: "MR. SHEA: For the record, Your Honor, I would request

so that allthe factsmay be brought out before the Court and I have no objection. In fact, I make the request that the Court inquire of both bailiffs--they areboth here today as I understand it

# --- as towhat the communications were made from the jury to them to thejudge and back tothem and back to the jury again. And also I would be willing to go in toask the Court that presided atthat time as to any recollections he may have of the circumstances."THE COURT: Do you want me to inquire? "MR. SHEA: Yes sir, so a record can be made. "THE COURT: Now areyou done with your motion and

ready to go? "I am satisfied that what you are doing in this case, the main reason, as far as I am concerned, is that your Motion for Acquittal 

### is denied, that the salient point, if it 

### is salient, that comes up, comes up in December and this case was tried in June. Is that correct? "MR.DESCHAMPS: Yes, that is correct. "MR.SHEA: The last of June, yes 

### sir, Your Honor. "THE COURT: And frankly I am satisfied that that is

something that you should have ascertained right after this casewas over and if therewas any validity to your motion that itwould have been as a result of diligent work on your part. The only reason that I say that 

### isbecause I want you tobe aware of what my feelings are, Mr. Herron. I want you tobe satisfiednow when I ask you, areyou satisfiedwith the services rendered by your counsel, your counsel that isgoing torepresent you in this case.II The majority opinion states that the affidavits were not used to impeach a jury verdict. But clearly the Court 

### is allowing, by affidavit of one juror of recollections fivemonths later, the impeachment of thejury's deadlock or failure to reach a verdict. To do that the majority 

### is disregarding the hearing transcript where Judge Keller noted that therewas no record of any communication between the Judge, thebailiff, and thejury. Now, fivemonths later, this 

### is attempted tobe shown by recollections of the jury foreman. We would affirm thejudgment in allparticulars. 

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