NO. 83-147 INTHE SUPREBE COURTOF THE STATE OF MONTANA 1984

STATE OF MONTXqA, Plaintiffand Respondent,

-vsMICHAEL JOSEPH STAFFORD, Defendantand Appellant.

APPEAL FROPI: District Court of the SecondJudicialDistrict, Inand for the County of Silver BOW, The HonorableArnold Olsen, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: W. D. Plurray,Jr., argued,Butte,Montana

For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Judy Browning argued,Asst. Atty. General, iielena Robert IT. McCarthy,CountyAttorney, Butte, Montana

Submitted: January 10,1934 Decided: March 5, 1984

Filed:;.

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-. ClerkMr. Justice Frank B. Morrison, Jr. delivered the Opinion of theCourt. Defendant Michael Joseph Stafford was charged with violating section 61-7-103(1), M.C.A.--leaving the scene of

an accident involving personal injuries. The casewas tried before a jury in the District Court of the Second Judicial District, SilverBow County. The jury returned a verdict of guilty, and defendant was sentenced by the trial court. We

reverse. While driving through an intersection of U.S. 10 and Ramsay Road in Silver Bow County, defendant broadsided another automobile, driven by Norwood Russell, which carried

as passengers Russell's wife and son. Russell and his wife

were both injured. Russell approached defendant's car to check his condition. Defendant told Russell thathe was all right, but that he was leaving because the police would be coming. Defendant drove away, and Russell, who was 

### iri a weakened condition, passed out. A passing motorist saw defendant's car and recorded the licenseplate number before he leftthe scene. A highway patrolman arrived shortly thereafter, and while inspecting the accident received a radio call that defendant was ata nearby residence. Defendant had drivento the home of a friendwho called theHighway Patrol toreport the incident. The patrolman went to the residence, where defendant admitted that he had been in an accident. The patrolman matched a grillfound atthe scene of the accident tothedefendant's car. Defendant was thereupon arrested and charged with leaving the scene of an accident involving personal injuries. Defendant, who was intoxicated at the time of the crash, was also charged with driving under theinfluence ofalcohol. Defendantpleaded guilty to the D.U.I. charge. Defense counsel was advised by the court that if the defendant pleaded guilty he would receive a fine of $500 and tendays in jail. Defendantrejected thebargain and pleaded not guilty to the crime of leaving the scene of an accident. His main defensewas that the mental state of "knowledge"was a key element of the crime, and that he lacked that mental stateat the time of the accident. Defendantmaintained that he could not remember causing the accident or leaving the

scene with knowledge that people had been harmed. The jury foundhim guilty. After the trial, defendant's counsel procured an affidavit from one of the jurors (Crippen) stating that another juror (Warren Stillings) had told the jury during deliberations that, because defendant was drunk while driving, he should be convicted of the other charge on that basis alone. That juror alsopassed out a letter to the jury addressing a jury's duty to resist judicial instructionsand acquit defendants in tax resistance cases. Counsel alleged that these incidents were prejudicial and he moved for a new trial. The court denied the motion, and later sentenced defendant to thirty days in the county jail and a fine of $1,000.00. The following issues are raised on appeal: 1. Whether the verdict of the jury is invalid because the presentation and endorsement of written material advocating abuse of the jurors' role amounted to extraneous prejudicial influence. 2. Whether defendant is entitled to a new trial because

one of the jurors was prejudiced against drunk drivers and against following judicial instruction and the evidence.3. Whether the judge's conduct during the trial was improper andprejudicial to the defense. 4. Whether the jury was improperly and prejudicially instructed on the effect that an intoxicated condition may have on the requisite mental state. 5. Whether the jury was improperly and prejudicially instructed because the trial court failed to include "knowledgeof injury"as an elementof the offense. 6. Whether the trial court prejudicially failed to instruct the jury on physical impairment of the ability to form the requisite mental state. 7. Whether the jury was improperly and prejudicially instructed on the inference to be drawn from the failure to produce awitness. 8. Whether the trial court improperly imposed a higher sentence than one offered in plea-bargaining without specifically justifying the increased sentence. The first three issues raise serious questions about the fundamental fairness afforded the defendant in his trial. Clearly essential to due process in a criminal prosecution, is a fair and impartial judge and a jurymade up entirely of fair and impartial jurors. Defendant first argues that Juror Stillings' encouragement to disregard the judge's instructions,and the documentadvocating abdicationof the juror's proper function constitute extraneousprejudicial. influence which render the verdict invalid. In order to impeach this verdict with the statementsof

a juror, the allegations must amount to extraneous prejudicial influence upon the jury. Rule 606(b) M.R. Evid. Itappears this information crosses the "inherentin the jury process" boundary to the extent it promotes abdicationof the jury function in favor of policy implementation. However, there is no evidence, other than the very nature of the material and the statements, that this information had any prejudicial effect on the other jurors. We refuse to overturn the verdict on thisground because the defendant has failed to show prejudice by the extraneous information. State v. Maxwell (Mont. 1982), 647P.2d 348, 352, 39 St.Rep. 1149, 1153;Ericksonv. Perrett (1977),175Mont. 87, 91, 572

Defendant next argues that juror Warren StiIlings was partial and prejudiced against drinking and drinking drivers and that he concealed that fact during voir dire. Defendant argues the juror's prejudice is evident fromhis conduct and statements as reported in,the affidavit of another juror. The issuehas been discussed by thisCourtbefore. "If one of the jurors is incompetent because of actualbias entertainedby him against the accused, and conceals such incompetency on his 

## -- voir dire, this vitiates the jury as a whole. The accused being entitled to a jury of twelve impartialmen, if he has but eleven, while the twelfth is hostile to him, he has not the impartial jury which the constitution and laws contemplate that he shall have." Statev. Mott (1903), 29 Mont. 292, 297, 74 P. 228, 730. Respondent does not argue that this is not the constitutional requirement. Instead,respondent argues that the affidavit of juror Crippen is incompetent to impeach the verdict under rule 606(b) M.R.Evid. This argument is a non sequitur. The rule simply does not come into play because the allegations are submitted for their relevance to matters prior to the jury's deliberations: the bias and prejudice of juror Stillings. See C. Mueller, "Jurors' Impeachment of Verdicts and Indictments in Federal Court Under Rule 606(b)," 57 Neb.L.Rev. 920, 956-57(1978). The inquiry here is not into the validity of the verdict; rather, the competency ofWarren Stillings to sit as a juror in the case, and defendant's constitutional right to twelve impartial jurors

are at issue. Respondent also argues that the allegations of misconduct are simply insufficient to support a finding of bias in fact. We find the following instancesof speech and conduct by juror Stillings strongly tend to establish pre-deliberativebias: 1. The juror advocated a position of disregarding the law and instructions of the judge in favor of punishing the defendant forhisdrinkingand drunk driving. 2. The juror passed written materials which advocate jurors usurp the power of the judge and legislature, and encourage people to "geton the jury" to effect thispolicy. 3. The juror did not deny the challenge that he must have perjured himself to sit on the jury. We find these allegations to be sufficient to establish denial of a fairand impartial jury. Defendant assigns as error the trial court's interruptions and volunteer objections. A trial judge must take care to insure that he does not abandon his role as impartial judge in favor of that of an advocate. People v. Adler (Colo. 1981), 629 P.2d 569, 573; Statev. Brown (Ariz. 1979), 602P.2d 478,481. We have reviewed the entire record,and indeed the trial court interrupted witnesses, and ma.de objections for the county attorney. We must grant the trial courts sufficient latitude that they can conduct trials in an orderly and expeditious fashion. In this case 

### we believe the trial court became involved but not to such an extent as to deny fundamental fairness anddue process of law.Since this case must be retried, it is necessary to address issues regarding jury instructionson criminal mental state. Defendant contends instruction No. 10 fai1.s to accurately state Montana law on the effect intoxicationmay have on mental state, and was so objected to at trial. We agree. The instruction is taken from section 45-2-203, MCA: "An intoxicated person is criminally responsible forhis conduct unlesshis intoxicated condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirementsof law." However, the instruction omits the following additional sentence found in the statute: "An intoxicated or drugged condition may he taken into consideration in determining the existence of amental state which isan elementof the offense." It is clear from the compiler's comments that the deleted sentence is not limited to cases of involuntary intoxication. The commentator states: "Sentence two states the exception to the general rule to intoxication as a defense, by providing that where an offense requires a specific mental state,the intoxicated stateof the offendermay be considered as a factor in determining whether that required mental state has been established." Montana CodeAnnotated Annotations, 45-2-203, Title 45,Crimes,pg. 64. Since defendant's only defense was to the element of knowledge, and was based on inability to form that menta.1 state because of a combination of intoxication and head injury, failure to fully instruct the jury on this issuewas prejudicial. We also find a related error in the following jury instruction. "To sustain the charge of LEAVING THE SCENE OF AN ACCIDENT INVOLVING PERSONAL INJURIES, the State must prove the following propositions:"First: That the Defendant was knowingly the driver of a vehicle involved in the accident in question; "Second: That the accident resulted in personal injuriesto Don and Linda Russell; "Third: That the Defendant knowingly failed to remain at the scene to give informationand render aid to the injured." This instruction soughtto set forth the elements of the crime as defined by section 61-7-103,MCA,which provides as follows: "Accidents involving death or personal injuries. (1) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of the accidentuntilhe has fulfilled the requirementsof 61-7-105. Every such stop shall be made without obstructingtrafficmore than isnecessary. 

### "(2) Any person failing to stop or to complywith said requirements under such circumstances shall upon convictionbe punished by imprisonment for not less than 30 days ormore than 1 year or by a fine of not less than $100 or more than $5,000 or both such fine and imprisonment. 

### "(3) The division shall revoke the license or permit todrive ofany residentand any nonresident operating privilege of any person so convicted for theperiod prescribed in 61-5-208." The instruction quoted above sought to delineate the elements of the offense and divided those into three categories. The trial court then sought to require knowledge of two elements but not a third. This cannotbe done. Defendant argues that knowledge of personal injuries is required. Respondent takes the position that to hold that such knowledge is an element of the offense would, in the words of the trial court, "make a mockery out of the statute." The driverwho leaves the sceneof an accidentmay be foreclosing any opportunity to acquire such knowledge. Although Respondent's argument makes good policy, Montana law leaves little room for interpretation.Section 45-2-103, MCA provides inpart: 

### "(1) A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect 

### -- to each element described by the statute defining the offense, he acts while having one of the mental states [purposely, knowingly,negligently]. 

# ... "(2) If the statutedefining an offenseprescribes a particular mental state with respect to the offenseasawhole without distinguishingamong the elements thereof, the prescribed mental state applies to each such element." (emphasisadded.) Section 45-2-104provides: "Absolute liability. A person may be guilty of an offense without having, as to each element thereof, one of the mental states [purposely,knowingly,or negligently] only if the offense ispunishable by a fine not exceeding $500 and the statute defining the offense clearly indicatesa legislative purpose to impose absolute liability for the conduct described." Section 61-7-103, MCA underwhich defendantwas charged, is clearly not an offense of absolute liability. An element of the offense is "an accident resulting in injury to or death of anyperson." ThusMontana.law clearly requires some mental state with respect to this element of the offense. In State v. Parish (Idaho 1957), 310 P.2d 1082, the Idaho court interpreted an identical "hit and run" statute, and held that knowledge of the accident and knowledge of the resulting injury to another were essential elements of the offense. "Knowledge on the part of the accused of the accident resulting in injury to anotherperson does not require a showing 

### by the state, by direct testimony, that the accused actually knew that the motor vehicle he was driving had struck some one. All of the facts and circumstances indicative of knowledge of such an accidentmay be considered by the jury in its determination of the fact of knowledge." 

### - Id. at 1084. We agree with the rationale expressed by the Idaho court. Knowledge of personal injury or death can simply be inferred from the seriousness of the accident. Failure torequire a showing of knowledge with respect toeach element

was prejudicial error. Defendant objects to the trial court's failure to instruct on traumatic amnesia. It is sufficienttoinstruct that defendamt must have actedknowingly, and todefine this mental state for the jury. We find no error on this issue. Defendant assigns error to an instruction allowing an inference of unfavorable testimony to be drawn from the failure of either party to produce a material witness. Although we do not approve of an instruction that might confuse a jury about the defendant's burden in a criminal proceeding, we findno errorgiven thisfinalsentenceof the instruction: "The jury will alwa-ys bear in mind that the law never imposes on a defendant ina criminalcasethe burden or duty of calling any witnesses or producing any evidence." The trial court involved itself in the plea bargaining process by representing todefendant's counsel that thebest offer of sentencing was 10 days injail and a fine of $500. After rejection of theplea bargain and trial, defendantwas sentenced to30 days and a fineof $1,000. The courtclearly isnotbound by the firstoffer. Under the rule propounded by this Court in State v. Baldwin (Mont. 1981), 629 P.2d 222, 38 St.Rep. 882, and State

v. Tate (1982), 196 Mont. 248, 639 P.2d 1149, a trialjudge must "specifically point out the factors that justify the increased sentence." This rulewillapply tothe sentencing of defendant on retrial should defendant be convicted. The case is remanded to the District Court for a new trialinaccordancewith thisopinion.We concur: 

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