No. 53-347 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1934 

STATE OF MONTAIJA, 

Plaintiff and Respondent, 

-vsJOHN HARVEY COUNTS, SR., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Cok & Wheat; Michael D. Cok, Bozeman, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Wm. Nels Swandal, County Attorney, Livingston, 

Montana 

Submitted on Briefs: December 8, 1983 

~ecided: April 19, 1934 

Filed: AW 13 1984 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Following a jury trial in the District Court of Park 

County, defendant was convicted of the offenses of aggravated 

assault and attempted aggravated assault under sections 

45-5-202 (1) (a) & (c) and 45-4-103 (1) w, MCA. He was sentenced 

to five years in the penitentiary for each offense. The terms 

were to be served concurrently with the last three years of 

each sentence suspended. He was also sentenced to a 

consecutive two-year term for the use of a firearm. Defendant 

appeals. We affirm the judgment of the District Court. 

The sole issue presented is whether the District Court 

erred in denying the defendant's motion for a mistrial on the 

grounds of a juror's communication during lunch with a key 

prosecution witness. 

The criminal offenses occurred in Park County at the 

home of Mrs. Girdler. Defendant and his nephew were visiting 

Mrs. Girdler on the morning of September 23, 1982. The 

State's evidence is summarized as follows. John Renbourne, a 

neighbor of the Girdlers, arrived at the Girdler home to 

deliver some photographs. As Renbourne approached the house, 

he met defendant and his nephew. Renbourne extended his hand 

in greeting to defendant, but defendant struck Renbourne, 

knocked him to the ground and repeatedly kicked him. Mrs. 

Girdler witnessed the incident. When she screamed, the 

defendant ceased the kicking. After Renbourne had gone into 

the Girdler home to clean his wounds, defendant pulled a gun 

out of his pocket and pointed it at Renbourne. 

Defendant's testimony was corroborated by his nephew. 

Defendant admitted striking and kicking Renbourne and also 

pulling his gun on Renbourne. He claimed that these acts 

were justified by self-defense. Defendant testified that 

Renbourne approached him with a gun, that Renbourne was 

fighting and kicking him, and that he pulled the gun because 

Renbourne said: "Shoot me, shoot me, shoot me or I will kill 

you. I' 
No question is raised as to the sufficiency of the 

evidence to convict on both counts charged. The sole issue 

pertains to alleged jury misconduct involving Mrs. White, a 

juror, and Mrs. Girdler, who testified as a witness for the 

prosecution. During the lunch recess on the first day of 

trial, juror White and her husband were seated at a 

restaurant in Livingston. Mrs. Girdler came in and was 

invited by Mrs. White to join them for lunch. They spent 

about thirty minutes having lunch. Both Mrs. White and Mrs. 

Girdler testified that their conversation did not concern the 

defendant or the trial. 

Both the District Court and counsel for the defendant 

questioned Mrs. White and Mrs. Girdler at length. Because of 

the possible appearance of improper conduct, we set forth 

significant portions of the examination by the court of juror 

White and witness Girdler: 

"THE COURT: Mrs. White, it has been mentioned 

here that at the last recess just 

before noon that someone had seen 

one of the lady jurors talking to 

Mrs. Girdler as they were leaving. 

Do you know Mrs. Girdler? 

"MRS. WHITE: Yes. 

"THE COURT: Did you speak with her at all here 

at the courthouse this morning? 

"MRS. WHITE: No. 

"THE COURT: No conversation? 

"MRS. WHITE: Not today at all. I had a conversation with her yesterday. 

"THE COURT: Did that in any way concern the 

case? 

"MRS. WHITE: No, never mentioned it. 

"THE COURT: Where did that conversation take 

place? 

"MRS. WHITE: At the restaurant yesterday noon. 

She came in while we were eating 

and sat with us. 

"THE COURT: And was there any mention on 

anyone's part about the case? 

"MRS. WHITE: No. 
"THE COURT: And was it just a chance meeting 

that she happened to come in the 

same restaurant? 

''MRS. WHITE: We were sitting there and she just 

come in and we asked her to sit 

with us. I didn't know that you 

can't talk. We didn't talk anything about the case at all. 

"THE COURT: That is what we want to make 

certain. And you haven ' t formed 

any opinion in any way just from 

having lunch with her, have you? 

"MRS. WHITE: No, nothing. 

"THE COURT: Did you know Mrs. Girdler prior? 

"MRS. WHITE: I have known her since she was a 

little girl, sure. Not, you know, 

not real well, just known her. 

"THE COURT: I want to make it just as clear, 

Mrs. White, the meeting yesterda.~ 

was just by chance and there was 

absolutely no mention whatever of 

this case? 

"MRS. WHITE: No. I can't even remember what 

we talked about. 

"THE COURT: And none of the testimony and none 

of the witnesses were mentioned or 

discussed? 

"MRS. WHITE: No. 

"THE COURT: The defendant, Mr. Counts' name, 

didn't come up at all? 

"MRS. WHITE: No." 

The testimony by the witness, Mrs. Girdler included the 

following: 

"THE COURT: It was also mentioned that yesterday you met or saw Mrs. White at 

lunch time? 

"MRS. GIRDLER: I did. 

"THE COURT: Where wa-s that? 

"MRS. GIRDLER: At the restaurant, Windy's 

Restaurant. 

"THE COURT: At Windy's? 

"MRS. GIRDLER: Yes. 

"THE COURT: Did you sit down at lunch time? 

"MRS. GIRDLER: We sat down at lunch time. 

"THE COURT: Were there others present? 
"MRS. GIRDLER: Her husband. 

"THE COURT: Just the three of you? 

"MRS. GIRDLER: Yes. 

"THE COURT: And how long were you together 

at that time? 

"MRS. GIRDLER: Well, we ate lunch, approximately 

30 minutes, because I had some other 

errands to do and I had to be back 

here by ten to 1:OO. 

"THE COURT: How did it happen that you were 

together there at lunch? 

"MRS. GIRDLER: I walked into the restaurant and 

they invited me to join them. 

"THE COURT: They were already there? 

"MRS. GIRDLER: Yes. 

"THE COURT: It was not a planned meeting? 

"MRS. GIRDLER: NO. 

"THE COURT: Have you known Whites for quite 

some time? 

"MRS. GIRDLER: A long time. I went to school with 

their son. 

"THE COURT: Now, again with your witness' oath 

in mind, Mrs. Girdler, did the 

substance or facts of this case 

against Mr. Counts in any way at all 

come up for discussion? 

"MRS. GIRDLER: No, because when we sat down we both 

agreed there was no way we would 

discuss the trial, and it was a 

relief to me to sit down and forget 

about it. We didn't touch it. 

"THE COURT: There was absolutely nothing said? 

"MRS. GIRDLER: No. 

"THE COURT: No indication of how you felt or how 

they felt? 

"MRS. GIRDLER: No, no way." 

Defense counsel also interrogated the witness and failed to 

find any indication that the luncheon conversa.tion in any way 

concerned the trial of the case or the defendant. 

The acquaintance between Mrs. White and Mrs. Girdler had 

been disclosed in the course of the voir dire. In response 

to questioning by counsel, Mrs. White indicated that she had 

known Mrs. Girdler and her folks for a long time, that it was 
just an acquaintance and that a-nything she knew about Mrs. 

Girdler would not influence her decision about Mrs. Girdlerts 

testimony. Mrs. White was not challenged by defense counsel 

during the voir dire. 

The essential. contention of the defendant is that, based 

upon Turner v. Louisiana (1965), 379 U.S. 466, 85 Sect. 546, 

13 L.Ed.2d 424, a new trial is warranted because of the 

interaction between the juror and a witness for the State. 

In the Turner case, two deputy sheriffs who were key 

prosecution witnesses were also in charge of the jurors. The 

Court emphasized that this was a continuous and intimate 

association throughout a three day trial. Defendant contends 

that here, as in Turner, a new trial should be granted 

because of the lunch together, the possibility of 

communication, the appearance of impropriety, and the social 

interaction between the juror and the witness. 

Immediately prior to the luncheon in question, the 

District Court admonished the jury as follows: 

"The jury is admonished not to discuss this case 

among yourselves whatsoever, or with anyone else, 

until it is finally submitted to you, and to form 

no opinion whatever about it. You may leave to go 

home for lunch, but don't discuss it with your 

husbands or wives or family or anyone else until it 

is finally submitted to you." 

The record does not disclose that juror White discussed the 

case with Mrs. Girdler or anyone else. 

The ruling of the District Court on a motion for 

mistrial is not to be lightly disturbed. As we stated in 

Schrnoyer v. Bourdeau (19661, 148 Mont. 340, 420 ~.2d 316: 

"We hold that once the District Court has 

considered the matter, however it is raised, 

whether on a question for mistrial or motion for a 

new trial this court will not lightly disturb that 

ruling. To overthrow it this court must be shown 

by evidence that is clear, convincing, and 

practically free from doubt, of the error of the 

trial court's ruling." 148 Mont. at 343, 420 P.2d 

at 317-18. 

In this .state, if jury misconduct is shown tending to 

injure the defendant, prejudice to defendant is presumed. 

However, this presumption is not absolute and may be rebutted 
by testimony of the juror showing facts which prove that 

prejudice or injury did not occur. See State v. Eag$n 

0, 

(1978), 178 Mont. 67, 79, 582 P.2d 1195, 1202 and cases cited 

therein. In the present case, any presumption of prejudice 

arising from the unusual circumstance of a lunch between a 

juror and a principal witness has been overcome by the 

testimony of both the juror and the witness during the course 

of the trial and prior to the submission of the case to the 

jury. 

We conclude that the defendant has failed to set forth 

facts justifying a reversal. In reaching this conclusion, we 

were guided by the analysis of both facts and law contained 

in State v. Dickens (Mont. 1982), 647 P.2d 338, 39 St.Rep. 

1137. In Dickens several of the witnesses apparently talked 

to several members of the jury. No record was made of any 

conversation. Factually Dickens is similar to the present 

case in that there is evidence of communication between a 

witness and a juror, but a total absence of evidence showing 

that anything prejudicial to the defendant occurred during 

the communication. In analyzing both the facts and the law 

in Dickens, this Court stated: 

"The first instance of alleged misconduct took 

place, according to the appellant, during the trial 

when several members of the jury were seen, by 

several of appellant's witnesses, facing some of 

the prosecution's witnesses and moving their 

mouths. It is not clear from the record whether 

any conversation was actually heard, but the 

appellant's witnesses did testify during the motion 

for a new trial that it 'appeared' some 

communication took place. 

". . . [Tlhis type of communication, a possibility 

at best, is not sufficient reversible error. In 

Turner v. Louisiana (1965), 379 U.S. 466, 85 S.Ct. 

546, 13-~.Ed.2d 424, a case cited as controlling on 

this issue by appellant, the United States Supreme 

Court held that a verdict can be reversed if it can 

be shown that communications of a dubious nature 

take place between prosecution witnesses and 

jurors. A review of the facts in Turner reveals 

that what consisted of reversible error there is a 

far cry from what transpired in the present case. 

In Turner, the two key prosecution witnesses were 

deputy sheriffs who were also in charge of the 

jurors. The Court noted: 
"' . . . We deal here not with a brief encounter, 

but with a continuous and intimate association 

throughout a three-day trial -- an association 

which gave these witnesses an opportunity, as 

Simmons (one of the deputies) put it, to renew old 

friendships and make new acquaintances among the 

members of the jury.' 85 S.Ct. at 550. 

"There is a distinction drawn by the United States 

Supreme Court between a 'brief encounter' and an 

'intimate association' and that distinction is 

applicable here. At best, the record reflects some 

innocuous type of conversation . . . There was, 

quite simply, not enough evidence presented by 

appellant to warrant a new trial. Charlie v. Foos 

(1972), 160 Mont. 403, 503 P.2d 538." 647 F. 2m 

341-42, 39 St.Rep. at 1140-41. 

We emphasized in Dickens, as the United States Supreme 

Court did in Turner, that a continuous and intimate 

association throughout a three-day trial is a basis for 

reversal. We also emphasized that there was a real 

distinction between such contacts over a period of three 

days, as in Turner, and the possibility of some communication 

between the witnesses and the jurors, as in the Dickens case. 

In a similar manner here, we do find the same type of a 

continuous and intimate association which was found to be 

improper in Turner. 

We have carefully reviewed the transcript with regard to 

the evidence on the part of Mrs. Girdler. There has been no 

attack by the defendant on the credibility of this witness 

and, in fact, no real disagreement with the testimony on the 

part of the witness. No suggestion has been raised by the 

defendant that any benefit accrued to the State by virtue of 

the luncheon between Mrs. Girdler and the juror. Essentially 

the evidence of Mrs. Girdler stands uncontradicted. 

We conclude that in the present case there was no 

communication of a dubious nature between the prosecution 

witness and the juror. There has not been the degree of 

impropriety which requires the drastic remedy of a new trial. 

While we do not condone lunches between witnesses and jurors, 

we conclude that here there was no communication related to 

the defendant's case. We therefore find no basis for a 

reversal. See 9 A.L.R.3d 1275. 
The trial court promptly and thoroughly investigated the 

alleged misconduct prior to the submission of the case to the 

jury. No prejudice to the defendant was disclosed and the 

appearance of impropriety was not a sufficient basis for 

reversal. 

The order denying motion for mistrial is affirmed. 

We concur: