No. 53-347 IN THE SUPREME COURT OF THE STATE OFMONTANA 1934

STATE OF MONTAIJA, Plaintiff and Respondent,

-vsJOHN HARVEY COUNTS, SR., Defendant and Appellant.

APPEAL FROM: DistrictCourtof the SixthJudicialDistrict, In and for the Countyof Park, The HonorableByronRobb, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: Cok & Wheat; Michael D. Cok, Bozeman, Montana ForRespondent: Hon. Mike Greely, Attorney General, Helena, Montana Wm. Nels Swandal, CountyAttorney, Livingston, Montana

Submittedon Briefs: December 8, 1983 ~ecided:April 19, 1934

Filed: 

## AW13

## 1984

ClerkMr. JusticeFred 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 fiveyears inthepenitentiary foreach 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 fortheuse of a firearm. Defendant appeals. Weaffirmthejudgment of theDistrict Court. The sole issue presented is whether the District Court erred indenying the defendant's motion fora mistrialon 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. AsRenbourne approached thehouse, he met defendant and hisnephew. Renbourne extended hishand 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 thekicking. After Renbourne had gone into the Girdler home toclean his wounds, defendant pulled a gun out of hispocket and pointed it atRenbourne. 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 willkill 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 conversationdid 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 significantportions of the examinationby the court of juror White and witness Girdler: "THECOURT: 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. Doyou knowMrs. Girdler? "MRS. WHITE: Yes. "THECOURT: Did you speak with her at all here at the courthouse this morning? "MRS. WHITE: No. "THECOURT: No conversation? "MRS.WHITE: Not today at all. I had a conversationwith her yesterday. "THECOURT: Did that in any way concern the case? "MRS.WHITE: No, nevermentioned it. "THECOURT: Where did that conversation take place? "MRS.WHITE: At the restaurant yesterday noon. She came in while we were eating and satwith us. "THECOURT: And was there anymention on anyone's part about the case? "MRS.WHITE: No."THECOURT: 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 iswhat 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. "THECOURT: Did you know Mrs. Girdler prior? "MRS. WHITE: I have known her since she was a little girl, sure. Not, you know, not realwell, just knownher.

"THECOURT: 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. "THECOURT: And none of the testimony and none of the witnesses were mentioned or discussed? "MRS. WHITE: No. "THECOURT: The defendant, 

### Mr. Counts' name, didn't comeup at all? "MRS. WHITE: No." The testimony by the witness, Mrs. Girdler included the following: "THECOURT: It was also mentioned that yesterday you met or saw Mrs. White at lunch time? "MRS. GIRDLER: I did. "THECOURT: Where wa-sthat? "MRS. GIRDLER: At the restaurant,Windy's Restaurant. "THECOURT: At Windy's? "MRS. GIRDLER: Yes. "THECOURT: Did you sit down at lunch time? "MRS. GIRDLER: We sat down at lunch time. "THECOURT: Were there otherspresent?"MRS. GIRDLER: Herhusband. "THE COURT: Just the three of you? "MRS. GIRDLER: Yes. "THE COURT: And howlong wereyou together atthat time? "MRS. GIRDLER: Well, we ate lunch, approximately 30 minutes, because I had someother errands to do and I had to be back here by tento 1:OO. "THE COURT: How did it happen that you were together there at lunch? "MRS. GIRDLER: I walked into the restaurant and they invitedme tojoin them. "THE COURT: Theywerealready there? "MRS. GIRDLER: Yes. "THE COURT: Itwasnot a planned meeting? "MRS. GIRDLER: NO. "THE COURT: Have you known Whites for quite sometime? "MRS. GIRDLER: A long time. I went to school with their son. "THE COURT: Now, again with your witness' oath inmind, Mrs. Girdler, did the substance or facts of this case againstMr. Countsinanywayatall comeup for discussion? "MRS. GIRDLER: No, because whenwe sat downweboth agreed there was no way we would discuss the trial, and it was a relief tome to sit down and forget about it. Wedidn't touch it. "THE COURT: There was absolutely nothing said? "MRS. GIRDLER: No. "THE COURT: No indication of howyou feltor how they felt? "MRS. GIRDLER: No, no way." Defense counsel also interrogated the witness and failed to find any indicationthat the luncheon conversa.tioninany way concerned the trialof the case orthe defendant. Theacquaintance between Mrs. White and Mrs. Girdlerhad been disclosed inthe course of the voir dire. In response to questioning by counsel, Mrs. White indicated that she had known Mrs. Girdlerand her folks for a long time, that it was

### just an acquaintance and that a-nythingshe knew about Mrs. Girdlerwould not influenceher decision aboutMrs. Girdlerts testimony. Mrs. White was not challengedby defense counsel during the voir dire. The essential.contentionof 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 witnesseswere 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 interactionbetween 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 orwives or family or anyone else until it is finally submitted toyou." 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 formistrial ormotion for a new trial this court will not lightly disturb that ruling. To overthrow it this courtmust be shown by evidence that is clear, convincing, and practically free from doubt, of the error of the trial court's ruling." 148Mont. 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,thispresumption isnot 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),178Mont. 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 ofboth 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 inDickens, 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 themotion for a new trial that it 'appeared' some communicationtook 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 controllingon this issue by appellant, the United States Supreme Court held that averdict canbe 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 (oneof 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. Charliev. 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 thepossibility of some communication between thewitnesses 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 inTurner. We have carefully reviewed the transcriptwith regard to the evidence on the part ofMrs. 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 luncheonbetweenMrs. Girdler and the juror. Essentially the evidenceofMrs. Girdler standsuncontradicted. 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 lunchesbetween 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 9A.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 formistrial is affirmed.

We concur: