No

No. 97-655

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 244

STATE OF MONTANA,

Plaintiff and Respondent,

v.

THOMAS WHITE CLAY,

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Big Horn,

The Honorable Robert W. Holmstrom, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

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James L. Vogel, Attorney at Law, Hardin, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General;

C. Mark Fowler, Ass't Attorney General, Helena Montana

Christine A. Cooke, Big Horn County Attorney;

Curtis Bevolden, Deputy County Attorney, Hardin, Montana

Submitted on Briefs: September 17, 1998

Decided: October 15, 1998 

Filed:

 __________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Thomas White Clay (White Clay) appeals from the judgment entered by the 

Thirteenth Judicial District Court, Big Horn County, on a jury verdict finding him 

guilty of the offense of felony assault. More particularly, White Clay appeals from 

the District Court's denial of his alternative posttrial motions for a new trial or for a 

directed verdict. We affirm.

¶2 The restated issues on appeal are:

¶3 1. Whether the District Court abused its discretion in denying White Clay's 

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motion for a new trial.

¶4 2. Whether sufficient evidence supports White Clay's conviction for felony assault.

BACKGROUND

¶5 The State of Montana (State) charged White Clay by information with 

committing the offense of felony assault. The events which gave rise to the charge 

began with an argument between White Clay and Wesley Stewart (Stewart), an offduty Bureau of Indian Affairs police officer, at a bar in Hardin, Montana, after both 

had been drinking heavily. Later, White Clay and Stewart met again at a 

convenience store. After White Clay overheard a comment made by Stewart to his 

friend, Cody Wilhelm (Wilhelm), in the store, he and Wilhelm approached Stewart 

in his vehicle and ultimately challenged Stewart to fight them. Stewart exited his car 

and knocked Wilhelm's hat off his head without hitting Wilhelm. White Clay ran to 

his car, picked up a tire jack, came up behind Stewart and struck Stewart on the 

head with the tire jack. 

¶6 White Clay asserted the statutory defense of defense of another person. He 

admitted striking Stewart, but claimed that he did so because he thought Stewart was 

beating up on Wilhelm and he feared any blow to Wilhelm's head could be fatal. 

White Clay's fear was based on his understanding that, because of a head injury 

sustained in a car accident, Wilhelm could go into a coma "and maybe never wake 

up" if hit in the head. 

¶7 The case was tried to a jury over two days and the jury retired to deliberate at 

approximately noon on February 19, 1997. The court reconvened in chambers at 

4:17 p.m., having received a written message from jury foreperson Dick Salyer 

(Salyer), on behalf of juror Marie Scott (Scott). The message read:

I feel the defendant is not guilty. I feel that his action was in self-defense. I 

also feel upset to think that a public servant like Mr. Stewart would provoke 

things like this to happen. 

The District Court and counsel discussed what to do in response to the message, with 

the court ultimately recommending that the jury be called in and inquiry made of the 

jury foreperson as to whether there was any possibility of reaching a verdict upon 

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further deliberation. In the event the foreperson felt no verdict could be reached, a 

mistrial would be in order; in the event that a verdict seemed possible, the court 

would send the jury back for further deliberations. Both the State and White Clay's 

counsel agreed that the recommended procedure was satisfactory.

¶8 The court reconvened in the courtroom with the jury present at 4:23 p.m. In 

response to the court's question regarding whether it was going to be possible to 

reach a verdict, Salyer stated that he did not honestly know. The District Court then 

asked whether it might be fruitful to deliberate more before coming to a conclusion 

or would it be helpful if the jury went back into the jury room and discussed that 

issue among themselves. Salyer responded that "we probably owe it to the Court to 

do that." The court then advised that, if a deadlock were reached, that should be 

reported but, if the jury felt it would like to deliberate more, it should do so. The 

court advised the jury to take whatever time it wanted and the jury returned to the 

jury room at 4:26 p.m.

¶9 The court reconvened again at 4:51 p.m., the bailiff having advised that the jury 

had reached a verdict. The verdict of guilty was read, the jury was polled at White 

Clay's request, and each juror responded that the verdict as read was his or her 

verdict. The District Court directed the clerk to file the verdict, ordered a 

presentence report, scheduled the sentencing hearing and continued White Clay's 

release on his own recognizance pending the sentencing hearing. The jury was then 

discharged and the court adjourned at 4:57 p.m. 

¶10 White Clay subsequently filed a motion for a new trial based on jury-related 

issues and, in the alternative, a motion for a directed verdict of acquittal on the basis 

that he had established his defense of defense of another person as a matter of law. 

The District Court denied the motions and, thereafter, sentenced White Clay. 

Judgment was entered accordingly and White Clay appeals.

DISCUSSION

¶11 1. Did the District Court abuse its discretion in denying White Clay's motion for 

a new trial?

¶12 White Clay's motion for a new trial raised several jury-related issues: 1) that the 

verdict rendered was not properly unanimous; and 2) that the District Court's 

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actions in sending the jury back for further deliberations constituted an outside 

influence or judicial coercion, thereby rendering the verdict invalid. Both of these 

issues were based on an affidavit submitted by juror Scott. The District Court denied 

the motion and White Clay asserts error. 

¶13 New trial motions in criminal cases are governed by § 46-16-702, MCA, pursuant 

to which a district court may grant a new trial "if required in the interest of justice." 

The grant or denial of a motion for a new trial is within the discretion of the trial 

court and its decision will be affirmed absent an abuse of that discretion. State v. 

Brogan (1995), 272 Mont. 156, 160, 900 P.2d 284, 286 (citations omitted). With these 

standards in mind, we address in turn White Clay's assertions of error with regard 

to the District Court's denial of his motion for a new trial.

¶14 Article II, Section 26 of the Montana Constitution and § 46-16-603(1), MCA, 

require jury verdicts in criminal actions to be unanimous. Relying entirely on Scott's 

affidavit, White Clay argues that the jury verdict is invalid in that it is not a proper 

unanimous verdict. According to Scott's affidavit, she concluded White Clay was not 

guilty, another juror "leaned" toward a not guilty vote, and both she and the other 

juror "experienced substantial pressure from the rest of the jurors." Scott also stated 

that, after being sent back to continue deliberating by the court, she "felt 

substantially pressured by the circumstances and by the balance of the jury, and 

agreed to go along with the verdict of guilty." Finally, Scott stated that she believes, 

to this day, that White Clay was not guilty but "did go along with the other jurors to 

reach a unanimous result." 

¶15 It is not uncommon for a party moving for a new trial or mistrial to submit a 

juror affidavit or statement in support of the motion. See, e.g., State v. Walker (1996), 

280 Mont. 346, 354, 930 P.2d 60, 64; State v. Kelman (1996), 276 Mont. 253, 261, 915 

P.2d 854, 859; Brogan, 272 Mont. at 160, 900 P.2d at 287. The threshold question in 

such a circumstance is whether the juror affidavit or statement can be considered for 

the purpose of impeaching the verdict. See Brogan, 272 Mont. at 160-61, 900 P.2d at 

287. 

¶16 Upon an inquiry into the validity of a verdict, Rule 606(b), M.R.Evid., prohibits 

a juror from testifying 

as to any matter or statement occurring during the course of the jury's 

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deliberations or to the effect of anything upon that or any other juror's mind or 

emotions as influencing the juror to assent or dissent from the verdict . . . or 

concerning the juror's mental processes in connection therewith. Nor may a 

juror's affidavit or evidence of any statement by the juror concerning a matter 

about which the juror would be precluded from testifying be received for 

these purposes.

The rationale underlying the prohibition is to prevent litigants and the public from 

invading the privacy of the jury room during, or after, the deliberations. Juror testimony to 

impeach a verdict to which assent has been given is excluded not because it is irrelevant, 

"but because experience has shown that it is more likely to prevent than to promote the 

discovery of the truth." Estate of Spicher v. Miller (1993), 260 Mont. 504, 507, 861 P.2d 

183, 185 (citations omitted). Rule 606(b) also contains limited exceptions, however. 

Under those exceptions, a juror may testify or submit an affidavit concerning 

(1) whether extraneous prejudicial information was improperly brought to the 

jury's attention; or (2) whether any outside influence was brought to bear upon 

any juror; or (3) whether any juror has been induced to assent to any general 

or special verdict, or finding on any question submitted to them by the court, 

by a resort to the determination of chance.

Rule 606(b), M.R.Evid. 

¶17 Applying Rule 606(b) to the affidavit before us, it is clear that Scott's affidavit 

concerning feeling pressure from other jurors and the circumstances relates solely to 

matters which occurred during the jury's deliberations and to the effect of such 

matters on Scott's mind or emotions in influencing her to assent to the verdict. 

Moreover, nothing in the affidavit relates to extraneous prejudicial information 

brought to the jury's attention, outside influences brought to bear, or being induced 

to assent by resort to the determination of chance. Thus, on the face of it, Rule 606

(b), M.R.Evid., prohibits use of the Scott affidavit to impeach the verdict. 

¶18 Relying on State v. Herron (1976), 169 Mont. 193, 545 P.2d 678, however, White 

Clay argues that the District Court erred in failing to consider Scott's affidavit. His 

reliance on Herron is misplaced.

¶19 In Herron, the jury was provided with eight verdict forms and instructed that, 

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when it had agreed on a verdict, the appropriate verdict form was to be signed and 

the jury was to return to the courtroom. After lengthy deliberations, the jury 

returned to court, announced its failure to reach a verdict, and was discharged. 

Herron, 169 Mont. at 195, 545 P.2d at 680. Thereafter, contacts between jurors and 

defense counsel indicated that the jury had voted unanimously to acquit the 

defendant on the most serious charges and had deadlocked only on the least serious 

charge. A juror affidavit indicated that the jury had been confused by two 

instructions and asked the bailiff to convey a question to the judge about whether to 

sign the first verdict form before proceeding to the next charge. No record existed of 

any communications between the bailiff and the judge, but the juror affidavit stated 

that the bailiff told the jury to arrive at only one verdict and sign only one form. 

Herron, 169 Mont. at 195-96, 545 P.2d at 680. The defendant was tried again on the 

more serious charges and convicted. Relying on the juror affidavit, he claimed that, 

having been acquitted in the first trial, he could not again be put in jeopardy. The 

trial court concluded that the juror affidavit could not be used to impeach the verdict 

and the defendant appealed. In a one-paragraph discussion, this Court concluded 

that the affidavit was not being used to impeach the verdict, because no verdict had 

been returned. Instead, the affidavit was being used to show that, because of "outside 

influences" on the jury, verdicts of acquittal on three charges were actually rendered 

but not returned to the court. Under such a circumstance, "[j]ustice compels the use 

of juror affidavits to prove what actually occurred." Herron, 169 Mont. at 196-98, 

545 P.2d at 680-81.

¶20 The facts of the instant case bear no resemblance to the unique circumstances 

presented in Herron, where the juror affidavit was submitted to support a double 

jeopardy claim rather than to impeach a jury verdict. Moreover, Herron was decided 

before the July 1, 1977, effective date of Rule 606(b), M.R.Evid., and White Clay cites 

to no authority decided pursuant to the Rule which would permit consideration of 

Scott's affidavit under one of the exceptions to the Rule 606(b) prohibition on juror 

testimony or affidavits for purposes of impeaching the jury verdict in this case. 

Furthermore, State v. Anderson (1984), 211 Mont. 272, 293, 686 P.2d 193, 204, which 

holds that similar allegations relating to internal pressures could not serve as the 

basis of inquiry into the verdict, controls the outcome here. We conclude, therefore, 

that the District Court did not err in denying White Clay's motion for a new trial on 

the basis that Scott's affidavit could not be considered in order to impeach the 

verdict.

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¶21 White Clay's second avenue of attack on the District Court's denial of his motion 

for a new trial is that the judge's purported coercion in sending the jury back for 

further deliberations constituted an "external influence" on the jury. In this regard, 

we note at the outset that Scott's affidavit does not allege any actions by the presiding 

judge that coerced or compelled her to change her position or relinquish her view 

about White Clay's innocence. Moreover, White Clay's argument, which apparently 

seeks to bring the Scott affidavit within one of the exceptions set forth in Rule 606(b), 

M.R.Evid., for purposes of attacking the validity of the verdict, finds no support in 

the Rule or in our case law. No language in the Rule provides for--or would support--

a "judge as external influence" exception to the general prohibition contained in 

Rule 606(b), M.R.Evid., and we have long held that the exceptions stated in Rule 606

(b) "are exclusive, and are narrowly construed." See State v. Maxwell (1982), 198 

Mont. 498, 505, 647 P.2d 348, 353 (citation omitted). 

¶22 White Clay's final jury-related assertion of error is that the District Court's 

inquiry into the jury's deliberations and its return of the jury for further 

deliberations coerced Scott into relinquishing her view of White Clay's innocence in 

favor of reaching a unanimous decision. We note again the absence of any specific 

statements to this effect in Scott's affidavit. 

¶23 White Clay is correct, however, that judicial coercion may constitute a basis for 

granting a new trial or a mistrial under certain circumstances, as discussed--for 

example--in State v. George (1986), 219 Mont. 377, 711 P.2d 1379. White Clay urges 

us to determine that judicial coercion occurred in the present case and reverse the 

District Court's denial of his motion. The State contends, in response, that the 

District Court properly analyzed the coercion argument. 

¶24 We decline to address this argument on the merits. Except in limited 

circumstances not applicable here, a defendant must object to adverse rulings or 

actions by the trial court in order to preserve the matter for appeal to this Court. 

Sections 46-20-104 and 46-20-701, MCA. Nor will we put a trial court in error for a 

ruling or procedure in which a party acquiesced or participated. See Matter of R.B.O.

(1996), 277 Mont. 272, 283, 921 P.2d 268, 275; In re Pederson (1993), 261 Mont. 284, 

287, 862 P.2d 411, 413. Here, White Clay did not object to the court's actions in 

responding to the statement from foreperson Salyer on behalf of juror Scott and 

sending the jury back for further deliberations. Indeed, his counsel affirmatively 

agreed to the court's recommendations regarding how to respond. While White Clay 

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raised the judicial coercion argument in his posttrial motion, we hold that his failure 

to timely object to the procedure and, indeed, his active acquiescence in that 

procedure, constituted a waiver of his right to assert error in that regard on appeal. 

¶25 We hold that the District Court did not abuse its discretion in denying White 

Clay's motion for a new trial.

¶26 2. Does sufficient evidence support White Clay's conviction for felony assault?

¶27 The jury found White Clay guilty of committing the offense of felony assault, 

defined in § 45-5-202(2)(a), MCA (1995), as purposely or knowingly causing bodily 

injury to another with a weapon. In doing so, it rejected his § 45-3-102, MCA, 

defense of defense of another person. 

¶28 As an alternative to his posttrial motion for a new trial, White Clay moved the 

District Court for a directed verdict of acquittal on the basis that he had proved his 

defense as a matter of law. The District Court rejected White Clay's argument and 

denied his motion; White Clay asserts error. 

¶29 A directed verdict of acquittal is appropriate only when no evidence exists to 

support a guilty verdict. State v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 

560, 562-63. As a result, we review a district court's ruling on a motion for a directed 

verdict under the same standard used to review a jury verdict. In other words, after 

viewing the evidence in a light most favorable to the prosecution, we determine 

whether any rational trier of fact could have found the essential elements of the 

offense beyond a reasonable doubt. State v. Weeks (1995), 270 Mont. 63, 87, 891 P.2d 

477, 491-92 (citation omitted). 

¶30 Here, White Clay does not dispute that sufficient evidence was presented 

pursuant to which a rational trier of fact could have found the essential elements of 

the felony assault offense beyond a reasonable doubt. Indeed, together with Stewart's 

testimony about his injuries, White Clay's own testimony--that he purposely hit 

Stewart with the tire jack to hurt him--was sufficient to support the jury's guilty 

verdict. 

¶31 Instead, White Clay argues that he presented sufficient evidence to establish that 

he believed Stewart was about to strike Wilhelm and used force he reasonably 

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believed necessary to defend Wilhelm against Stewart's imminent use of unlawful 

force on Wilhelm. As a result, according to White Clay, he established his defense as 

a matter of law and was entitled to a directed verdict of acquittal. White Clay 

misapprehends both the nature of the defense and the state of the law. 

¶32 In State v. Sattler, 1998 MT 57, 956 P.2d 54, 55 St.Rep. 230, we clarified the 

relationship between the prosecution's burden to prove the elements of a charged 

offense beyond a reasonable doubt and a defendant's burden of producing sufficient 

evidence in support of a defense asserted under § 45-3-102, MCA, to raise a 

reasonable doubt about his guilt. In doing so, we observed that the elements of the 

defense, like the elements of the charged offense, are factual in nature and are to be 

determined by the jury. Sattler, ¶ 55 (citation omitted). Thus, in a case where a jury 

is considering a factually based defense, as is generally the case with factual 

questions, "[i]t is within the province of the finder of fact to weigh the evidence 

presented and determine the credibility of witnesses; in the event of conflicting 

evidence on factual issues, the trier of fact determines which will prevail." See Sattler, 

¶ 55 (citation omitted). 

¶33 Here, White Clay and the State presented conflicting evidence regarding 

whether White Clay reasonably believed it was necessary for him to use force on 

Stewart to defend Wilhelm against imminent use of unlawful force by Stewart. These 

factual matters were for the jury to determine. See Sattler, ¶ 55. The presentation of 

evidence sufficient to support the § 45-3-102, MCA, defense merely entitles a 

defendant to have the defense submitted to the jury; it does not raise a reasonable 

doubt as to the defendant's guilt as a matter of law. See Sattler, ¶ 61.

¶34 We conclude that a rational jury could have found beyond a reasonable doubt 

that White Clay purposely or knowingly caused bodily injury to Stewart with a 

weapon. We hold, therefore, that sufficient evidence supports White Clay's 

conviction of the offense of felony assault and, on that basis, we further hold that the 

District Court did not err in denying White Clay's motion for a directed verdict of 

acquittal.

¶35 Affirmed.

/S/ KARLA M. GRAY

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We concur:

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

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