NO. 83-147 

IN THE SUPREBE COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTXqA, 

Plaintiff and Respondent, 

-vsMICHAEL JOSEPH STAFFORD, 

Defendant and Appellant. 

APPEAL FROPI: District Court of the Second Judicial District, 

In and for the County of Silver BOW, 

The Honorable Arnold Olsen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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, County Attorney, Butte, 

Montana 

Submitted : January 10, 1934 

Decided: March 5, 1984 

Filed:;. - 

-. 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

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 case was tried 

before a jury in the District Court of the Second Judicial 

District, Silver Bow 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 that he 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 license plate number before 

he left the scene. 

A highway patrolman arrived shortly thereafter, and 

while inspecting the accident received a radio call that 

defendant was at a nearby residence. Defendant had driven to 

the home of a friend who called the Highway Patrol to report 

the incident. The patrolman went to the residence, where 

defendant admitted that he had been in an accident. The 

patrolman matched a grill found at the scene of the accident 

to the defendant'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 the 
influence of alcohol. Defendant pleaded 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 

ten days in jail. Defendant rejected the bargain and pleaded 

not guilty to the crime of leaving the scene of an accident. 

His main defense was that the mental state of "knowledge" was 

a key element of the crime, and that he lacked that mental 

state at the time of the accident. Defendant maintained that 

he could not remember causing the accident or leaving the 

scene with knowledge that people had been harmed. The jury 

found him 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 also passed out a letter to the jury 

addressing a jury's duty to resist judicial instructions and 

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 and prejudicial 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 

"knowledge of injury" as an element of 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 a witness. 

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 jury made up entirely of 

fair and impartial jurors. 

Defendant first argues that Juror Stillings' 

encouragement to disregard the judge's instructions, and the 

document advocating abdication of the juror's proper function 

constitute extraneous prejudicial. influence which render the 

verdict invalid. 

In order to impeach this verdict with the statements of 

a juror, the allegations must amount to extraneous 

prejudicial influence upon the jury. Rule 606 (b) M.R. Evid. 

It appears this information crosses the "inherent in the 

jury process" boundary to the extent it promotes abdication 
of 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 this ground because the defendant has 

failed to show prejudice by the extraneous information. 

State v. Maxwell (Mont. 1982), 647 P.2d 348, 352, 39 St.Rep. 

1149, 1153; Erickson v. Perrett (1977), 175 Mont. 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 from his conduct and 

statements as reported in, the affidavit of another juror. 

The issue has been discussed by this Court before. 

"If one of the jurors is incompetent because of 

actual bias entertained by 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 impartial men, 

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." State v. 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 of 
Warren 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 instances of speech and 

conduct by juror Stillings strongly tend to establish 

pre-deliberative bias: 

1. The juror advocated a position of disregarding the 

law and instructions of the judge in favor of punishing the 

defendant for his drinking and drunk driving. 

2. The juror passed written materials which advocate 

jurors usurp the power of the judge and legislature, and 

encourage people to "get on the jury" to effect this policy. 

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 fair and 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; State v. Brown (Ariz. 

1979), 602 P.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 and due process of law. 
Since this case must be retried, it is necessary to 

address issues regarding jury instructions on criminal mental 

state. Defendant contends instruction No. 10 fai1.s to 

accurately state Montana law on the effect intoxication may 

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 

for his conduct unless his 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 

requirements of 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 

a mental state which is an element of 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 state of the offender may be 

considered as a factor in determining whether that 

required mental state has been established." 

Montana Code Annotated 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 issue was 

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 

injuries to Don and Linda Russell; 

"Third: That the Defendant knowingly failed to 

remain at the scene to give information and render 

aid to the injured." 

This instruction sought to 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 

accident until he has fulfilled the requirements of 

61-7-105. Every such stop shall be made without 

obstructing traffic more than is necessary. 

" (2) Any person failing to stop or to comply with 

said requirements under such circumstances shall 

upon conviction be punished by imprisonment for not 

less than 30 days or more 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 to drive of any resident and any nonresident 

operating privilege of any person so convicted for 

the period 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 cannot be done. 

Defendant argues that knowledge of personal in juries 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 driver who leaves the scene of an accident may 

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 in part: 

" (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 statute defining an offense prescribes 

a particular mental state with respect to the 

offense as a whole without distinguishing among the 

elements thereof, the prescribed mental state 

applies to each such element. " (emphasis added. ) 

Section 45-2-104 provides: 

"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 is punishable by a 

fine not exceeding $500 and the statute defining 

the offense clearly indicates a legislative purpose 

to impose absolute liability for the conduct 

described." 

Section 61-7-103, MCA under which defendant was charged, 

is clearly not an offense of absolute liability. An element 

of the offense is "an accident resulting in injury to or 

death of any person." Thus Montana. 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 another person 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 accident may 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 to 
require a showing of knowledge with respect to each element 

was prejudicial error. 

Defendant objects to the trial court's failure to 

instruct on traumatic amnesia. It is sufficient to instruct 

that defendamt must have acted knowingly, and to define 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 find no error given this final sentence of the 

instruction: 

"The jury will alwa-ys bear in mind that the law 

never imposes on a defendant in a criminal case the 

burden or duty of calling any witnesses or 

producing any evidence." 

The trial court involved itself in the plea bargaining 

process by representing to defendant's counsel that the best 

offer of sentencing was 10 days in jail and a fine of $500. 

After rejection of the plea bargain and trial, defendant was 

sentenced to 30 days and a fine of $1,000. The court clearly 

is not bound by the first offer. 

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 trial judge 

must "specifically point out the factors that justify the 

increased sentence." This rule will apply to the sentencing 

of defendant on retrial should defendant be convicted. 

The case is remanded to the District Court for a new 

trial in accordance with this opinion. 
We concur: 

a,m=JL- 9.$4&& 

Chief Justice