### No. 13440 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

STATE OF MONTANA, Plaintiff and Respondent,

GLORIA 

### RAY EAGAN, Defendant and Appellant.

Appeal from: District Court of the Sixteenth Judicial District, Honorable Alfred B. Coate, Judge presiding. Counsel of Record: For Appellant: Patrick J. Kelly argued, Miles City, Montana David J. Patterson,Missoula, Montana For Respondent: Hom. Pilike Greely,Attorney General, Helena,Montana Allen 

### B. Chronister argued, Assistant Attorney General,

Helena, Montana Denzil Young argued, County Attorney, Baker, Montana

Filed: 

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## i9lkjl Submitted: June 5, 1978 Decided: 

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### Mr. Justice John C. Sheehy delivered the Opinion of the Court. This is an appeal by defendant Gloria Ray Eagan from her conviction of the offense of mitigated deliberatehomicide, entered inthe District Court of the Sixteenth JudicialDistrict, Fallon County, Montana. The single issue tobe decided on this appeal iswhether there was impropriety inthe handling of a problem that

arose during defendant's trialwhen one of the empaneled jurors made statements ina public place, outside the place of trial, indicating his prejudice, and implying that others

on the jury panel might alsobe prejudiced against defendant. Accordingly, the facts can be briefly stated as far 

### as the alleged 

### crime isconcerned. Defendant was charged by information with the offense of deliberate homicide arising out of the shooting death of one Russell Hanson on July 13, 1975. Defendant claimed thatRussell Hanson, while a guest ather home inthe earlymorning hours of that date, had attacked her and attempted torape her, and that she was required torepel his aggression by threatening touse a 30.30 rifleagainst him. Defendant stated she had ordered the decedent to get outof her mobile home and that the decedent, instead of leaving, had taken a sittingposition

on a couch inthe home. Ata 

### timewhen he was apparently starting togetup from the couch, defendant claimed the rifleaccidentally discharged while she was holding 

### it at waist level, and the bullet therefrom struck Hanson and caused his death. The casewas triedbeginning February 2, 1976, in DistrictCourt. The jury was empaneled on the firstday and opening statements 

### weremade. Trial continued throughFebruary 3, 1976, with the calling of witnesses. On February 4, 1976, when the defense was presenting 

### its case and defendant herself had been examined and cross-examined, counsel fordefendant informed the court thathe had just learned that one of thejurors, Roland Kruger, had made statements ina bar inthe downtown area the evening before. The person towhom he made the statements 

### was eventually called before the court toreport what was said. Here 

### is what the record shows with respect to the out-of-court statements: "THE COURT: Let the record show that the Court 

### is inchambers with Counsel and the Clerk and that it 

### is 1:00 o'clock. Immediately prior to the noon break, Counsel appeared inchambers and advised the Court that one of the jurors on the panel sitting inthe Cause now being tried had been downtown lastevening in the bar discussing this case inpublic and the Court then ordered that thismeeting be held at1:00 and that the person who overheard the juror be brought before the Court 

### - In Camera and his testimony be taken. "JOHN MEYERS, having been firstduly sworn by the Clerk, testified upon his oath 

### as follows: "BY THE COURT: "Q. For the record, 

### willyou stateyour name. "A. John Meyers. 

### "Q. Where do you live? "A. Phebus Trailer Court. 

### "Q. It 

### ismy understanding that you 

### were downtown lastevening, 

### is that correct? "A. Yes. "Q. Where were you at? "A. Corner Bar. 

### "Q. Atwhat time was this? "A. About 9:30. "Q. What happened inthe Corner Bar atabout 9:30?

### "A. Well, 

### Roland Kruger was tellingme 

### that, you know, thathe

### was on jury duty and 

### as far as he was concerned, that shewas guilty and he also told me that half of the jury is 

### Hanson's friends. "Q. 

### Who elsewas present when he was talking toyou? "A. He

### was just by 

### me atthe end of the Bar. "Q. 

### There wasn't anyone else that overheard that conversation? "A. 

### No. "THE COURT: 

### Do Counsel have any other questions? "BY MR. YOUNG: 

### "Q. Have you seen him other nights down there? Has he been down Monday night? "A. Well, 

### letme see. I 

### didn't go uptown Monday night. "MR. KELLY: I 

### have no questions. "Q. (By Mr. 

### Young) Was 

### he drunk? "A. 

### Yes. "Q. Which is 

### frequent tohim? "A. Yes. 

### "THE COURT: 

### Do you have any other questions, Denzil? "MR. YOUNG: 

### No, I 

### don't think so. "MR. KELLY: I 

### have one. "Q. He communicated directlywith you? "A. 

### Yes. "MR. KELLY: 

### That is allI 

### have. Thank you. "THE COURT: 

### Okay. That is all, 

### Thank you. 

### "(Witness excused.) "THE COURT: 

### Now, I 

### think that

### we should call him inand ask 

### him, givehim an 

### opportunity to explain it 

### ordeny it 

### or admit it. 

### "MR. YOUNG: I 

### suggested toPat 

### that if, you know, if thiswere supported, rather than create a 

### furor on thejury, we 

### could wait

### until the case is 

### in and excuse him and use the firstalternate. If he were called inhere and examined, he would be excused 

### and there--I 

### was thinking, it 

### might cause 

### a little

### distraction for the jury if he disappeared suddenly.

### "THE COURT: Well, 

### this is 

### fine. I 

### think thatwe 

### ought tohave him inand have him testify. "MR. KELLY: I 

### agree. "THE COURT: 

### Whether we 

### do it 

### now or do it 

### following recess atthe conclusion of today's trial is 

### immaterial tome. "MR. YOUNG: It 

### doesn't matter to

### me. "THE COURT: 

### Then inthe event that he says, 'Yeah, I 

### did it,'

### what areCounsel's suggestions? "MR. KELLY: 

### My suggestion--well, firstof all, as tohim, I 

### think thathe should be excused at the conclusion of the case prior to the jury going tothe deliberations. I 

### think the proper alternate should be put inhis stead. I 

### have a second question. Does this indicate a problem other than with him on thisjury? And I 

### am wondering if 

### wehave any information from the Bailiff regarding conversations. Have they been discussing this case prior tothe 

### timeof being charged? I 

### just don't know. That is 

### a question I 

### don't have any answer. With him, I 

### have no doubts he should be excused. "MR. YOUNG: I 

### willask him if he has discussed it

### with any of the otherjurors. "THE COURT: 

### Well, I 

### think this is 

### a proper inquiry toask him. If he has been discussing the casewith theother jurors, that is--and whether the 

### rest of thejury have indicated that they have made theirminds up and if the othermembers of thejury have, then I 

### suppose we have a mistrial. And if we have a mistrial, I 

### suppose thatwe 

### bet

### ter findoutabout it 

### today. "MR. YOUNG: We

### don't have any reason to think that therestof thejury is 

### contaminated. "THE COURT: 

### No, but if he says this is

### what has happened and thewhole jury is 

### contaminated, then I 

### think we may aswell declare a mistrial and 

### start over again. If, on the other hand, he says, no, he hasn't talked with the rest 

### of thejury, or he hasn't heard any of them talk, then I 

### think what we ought todo is

### getridof him and put an alternate inand go ahead and complete the trial. I 

### am not going topresume that allof these people break their oath. "ROLAND KRUGER, 

### being firstduly sworn by the Clerk, testified upon his oath as 

### follows: "BY THE COURT: "Q. 

### Roland, it 

### has been brought tothe attention of theCourt that lastnight you 

### were downtown in the Corner Bar atabout 9:30 

### and while you were

### there, you advised a person that you had made up your mind that the defendant was guilty. You further advised this individual that about half of the jury were personal friends of the Hanson family. Is this charge true? "A. Pardon? "Q. 

### Is this charge true? "A. Not to my knowledge,nope. "Q. 

### Were you downtown last night? "A. Yes. "Q. 

### Were you in the Corner Bar? "A. 

### Yes, Iwas. "Q. 

### Were you there about 9:30? 

### "A. Iwould assume so. "Q. 

### And while youwere there, you were down at the end of the bar talking to JohnMeyers? "A. 

### John Meyers? Idon't even know the guy personally. What does he do? "Q. 

### He is a very dark complected person. Black hair. "A. 

### Oh, did he used to work for Signal? Yes, I was uptown, but any statement Imade, Imade a joke of it. Therewas no

## -- "Q. 

### Well, have you discussed this casewith any of the other jurors? "A. No, Ihaven't. "Q. 

### Have any of the jurors discussed itwith you? "A. 

### No, they sure haven't. No, I am positive. I am not that type of guy. "THECOURT: Do Counsel have any questions? "MR. YOUNG: 

### No. "MR. 

### KELLY: No. "A. 

### No, if 

### I said anything, itwas in the line of bull. Therewas no business talk. "THECOURT: Okay,youmay leave. Tell the Bailiff that I will advise him when we are ready to proceed. 

### " (Witnessexcused.)"THE COURT: Okay, what 

### is the suggestion? "MR. KELLY: Hisanswer was that anything he said was made ina

## -- said ina humorous fashion. So I take it as some of the admission inconnection with his conversation of this case. I would think, atthe very least, he should be excused. "THE COURT: I think so. "MR. KELLY: I would also suggest that he might

## -- He appears tobe either extremely hung over or perhaps he 

### isunder the influence rightnow. "THE CLERK: Hard of hearing, I think. "MR. YOUNG: He worked formany years, rigwork, has probably affected hishearing. I haven't talked tohim for a couple of years and I am not aware of thatproblem. "THE COURT: Allright. Now, did you want me to excuse him now or atthe conclusion of today's case? "MR. KELLY: I don't think he should be excused now. I think atthe conclusion of today's case. "MR. YOUNG: Fine. "THE COURT: Allright. Let's go." Thereafter, the District Court resumed the trial, with Mr. Kruger 

### still sitting in the jury for the balance of the afternoon, duringwhich 

### time the remaining testimony in the

case was completed. That evening the instructions were settled, whereupon counsel for defendant moved the court for

a mistrial of the cause upon the ground that there had been improper conduct on the part of the jury as evidenced by the hearing earlier had that day. The motion was denied by the District Court. On the following morning, February 5, 1976, trialwas resumed at9:30 a.m. atwhich 

### timethe following proceedings took place inchambers: 

### "INCHAMBERS: 

### "(Mr. Xruger called in.)

### "THE COURT: 

### After thinking about thismatter we discussed yesterday, the consequences are that if it 

### wereprovable, if you made these statements, we would have a mistrial and we would have togo through the whole thing one more time ata considerable expense to the county. "A. 

### Yes. "THE COURT: 

### Not only that, but if it 

### were provable, you would have violated atleast two laws, those being contempt of court and failuretoperform your officialduties. And I 

### am not interested inseeing you charged with a crime. I 

### am not interested inanything other than seeing that this trial isproperly, fairly conducted and that the county isn'tput to the expense of retrying it. 

### And so, for thatreason, I 

### think it 

### would be best of allif I 

### remove you as a juror and put one of the alternates inyour spot. And that iswhat I 

### am going todo. "A. Yes. 

### "THE COURT: 

### And I 

### think that, firstof all, as far asyou areconcerned, I 

### am going to instruct you not todiscuss this trialor not todiscuss the reason thatyou were removed with anybody, and if you do, I 

### willcharge you with contempt of courtbecause I 

### don't want a built-in error inthis case. It is 

### too important of a case. "A. Yes, I 

### realize that. "THE COURT: 

### So it

### might be better for you and for everybody if you just say you got sick today and you couldn't sit.



### "A. Well, I 

### have a question if I 

### may ask it. 

### Who called this in? "THE COURT: 

### Well, the report came to the Court through defense counsel. Somebody advised him. I 

### don't know, I 

### didn't ask. "A. Who would it 

### come to? "THE COURT: Well, 

### defense counsel is 

### the person that toldme. Now, I 

### don'tknow where he heard it. 

### "A. Yes, because if I 

### remember right, it

### was-- Was it

### Meyers? "THE COURT: Yes. It 

### is an unfortunate thing and what you can do is stay here and I will

### call the jury inand then

## -- "(WhereuponMr. 

### Kruger was replaced by Alternate Juror NO. 1.)

### "Thereafter, with Kruger excused, and the alternate juror sitting inhis place, the jury retired to consider 

### its verdict, and returned 

### its finding that defendant was guilty of mitigated deliberatehomicide. On February 

### 26, 1976, defendant was sentenced toa term of fiveyears in the state prison. She moved for a new trial on the ground she had been denied her constitutional right toa fair and impartial jury. The motion for new trialwas denied on March 11, 1976, and thereafter this appeal ensued. Defendant states two issues for review on appeal: 1. Was the statementmade by Juror Kruger such that 

### it constituted sufficientmisconduct and prejudice on the part of the jury so as torequire a mistrial? 2. Did the alternativeremedy chosen by the court, that is, replacing the jury with an alternate, cure the trialdefect? Wewillconsider the issues together. The right of a defendant to speedy public trial by an impartial jury is so sacred toour system of jurisprudence that it 

### ispreserved both inour stateand federal constitutions. Article 11, Section 

### 24, 1972 Montana Constitution; SixthAmendment, United States Constitution. The verbatim excerpt from the transcript indicates the District Court, as

### well ascounsel, were fully aware of the sanctity of defendant's right to an impartialjury. We are called upon here todetermine whether the course of action taken by the District Court upon the discovery of a disqualifiedjuror did infactremove any prejudicial effect occasioned thereby so thatdefendant was accorded her right of fair trial.For the most part, it seems that

### we would regard as persuasive the finding ordetermination of the District Court that any prejudicial effectof misconduct by a juror had infactbeen removed. Certainly in such matters as whether, for example, the responses of a prospective juror

on voir dire indicate his stateof mind, or whether a juror had infactdisqualified himself by prejudicial statements, the determination by the District Court would be given considerable weight by this Court. In the situationpresented here, however, 

### it appears that this Court 

### is in as good a position as the trial court tomake thisjudgment where there areno factual conflicts apparent regarding the conduct itself. As was stated inPeople v. Brown, (1976),

"Some cases have treated the issue of the prejudicial effect of jury misconduct asbeing a question of factfor the 

### trial court and have held that a finding of no prejudice 

### implied inthe denial of a new trial should not be setasideunless there isno evidence to sustain it. 

## * 

## * * We areof the view however that themore enlightened and appropriate rule is that since jury misconduct challenges the fundamental right toan unprejudiced jury and the fairness of the trialproceedings, this issue is an independent appellate issue tobe adjudicated by this courtbased upon the whole record. 

## * * *" From the record it appears that the challenged juror did infactmake the statements attributed tohim in a public place to a third person, while the trialwas in progress. When the juror was brought before the court in chambers, he firstdenied that he knew the third person. Then the juror indicated that he was merely joking as to any statements he had made. Following that he stated he had not discussed the casewith any of the other jurors.When the juror was excused after his examination, there

was a discussion by court and counsel as towhether he was "under the influence" or hung over, or whether he was in facthard of hearing. Atany rate, the juror was permitted to 

### sitwith the remainder of the jury for the balance of the 

### timethat testimony was taken that day. Further, the record reflects that inthe period when the challenged juror was sittingwith the jury, following his examination inchambers, four recesses 

### weretaken by the court during the remainder of the afternoon. There 

### was a

recess taken while court and counsel retired tochambers to discuss a legal point, and a further recess for the same purpose. A rest-period recess was taken midafternoon, and atthe conclusion of the testimony, an evening recess was declared until 9:30 a.m. the following morning. On each of these occasions 

### it appears the District Court instructed the jury with the usual admonition that they should not discuss this case with each other or among themselves or with others; but, it 

### is also tobe noted that the same admonition had been given prior to the discovery of the prejudicial statements, which admonition the challenged juror apparently ignored. Allowing thisjuror to 

### sitwith the remainder of the jury, including the alternate, after the discovery that he was a disqualified juror 

### is the firstdifficulty we find in the procedure followed by the District Court. The second difficulty relates to the balance of the statements attributed to the same juror--that 

### is, "he also toldme that half of thejury 

### is Hanson's friends". The questions by the DistrictCourt on thispoint to Kruger did not quitereach the source of thisjuror's information 

### as to this statement, nor the implication therein that half of the jury was alsoprejudiced against defendant.

### The third difficulty relates to whether the disqualified juror may have made known his prejudice to the other members of the jury. The District Court relied completely upon the responses of the challenged juror that he had not discussed the case with the other jurors. At no stage of the trial were the other jurors interrogated by the District Court as to what contact or expression of opinion the challenged juror may have made to them while he was sitting with them on the jury panel. This is important because as pointed out in Peoplev. Brown, supra: "In approaching the issue of prejudice, it first must be noted that a unanimous verdict is required in a criminal case. Thus, the disqualification of a single juror could have resulted in a different verdict on any of the counts." 132 Cal.Rptr. at 221. The duty to preserve a fair trial for the defendant rests in the first instance upon the trial judge. People v. Shaw, (Mich. 1969), 164N.W.2d 7, 12, 13. When a juror is found to have been guilty of improper conduct, such improper conduct is charged to the entire panel, Kinkaid v. Wade,

(Kan. 1966), 410 P.2d 333, 337, since the jurors operate as

a unit, and since public policy demands that misconduct be discouraged and insofar as possible prohibited. Kinkaid, at 337. We cannot assume therefore that the remainder of the jury panel had been safeguarded from contamination in the absence of some interrogationaddressed to those jurors to dispel the possibility that prejudice existed, either from friendship, or from prejudicial comments by Kruger. It is this factor that distinguishes this case from State v. Baugh, (1977), Mont

# . , 571 

### P.2d 779, 34 St.Rep. 1315. Baugh was a case where the District Court learned during the course of the trial that one of the jurors had, before the trial,viewed a videotape of theexhumation of the deceased. The court learned of this fact fivedays after the trialhad commenced. The court called the juror into chambers and determined there that the juror had in factpreviewed the videotape. The juror, upon the court's question, indicated that no other juror knew that she had viewed the videotape. The court immediately excused the juror from further service and allowed the trial to proceed by seating one of the alternate jurors. However, the District Court inBaugh took one more important step. After the jury had reached 

### itsverdict, but before the verdict was announced, the court questioned the jury and asked them if atany time during the trial the disqualified juror had discussed with any of them any of the evidence on the trial. Allof the jury responded "No". In this case

### we have no such reassuring interrogation. There 

### is lefthanging in the airhere the implication that one half of the jury in this case were friends of the decedent over whose death defendant was being tried; moreover, the possibility that the disqualified juror may have communicated his prejudice to other members of the jury was not fully searched out. In that situation it cannot be stated unequivocally that no prejudice against defendant had occurred. It 

### is the rule inthis statethat if jury misconduct is shown tending to injure the defendant, prejudice to the defendant 

### ispresumed; however, the presumption 

### is not absolute and may be rebutted by the use of testimony of the jurors to show factswhich prove that prejudice or injury did not or could not occur. Statev. Jackson, (1890), 9 Mont. 508, 522, 24 P. 213, 216. Putro v. ~alcer and Mannix ~lectric, Inc., (1966), 147Mont. 139, 147, 410 ~.2d 717, 722.The procedure followed by the ~istrict Court in Baugh had the effect of overcoming the presumption of prejudice caused by jury misconduct. The response of the jurors, before their verdictwas announced, overcame the presumption. In this case, themembers of the jury were not so interrogated, and therefore the presumption of prejudice remains. What thisCourt said inPutro, supra, bears repeating: "The guiding principle of our legal system is fairness. Wemust tenaciously adhere to the ideal thatboth sides of a lawsuit be guaranteed a fair trial. Sec. 27, Art. 111, Montana Constitution. The function of the jury 

### is to decide the factsof the case only on evidence introduced attrial. It has been noted that 'There isno practicablemethod to so analyze themental operation of the jurors as todetermine whether, inpoint of fact, the verdict would have been the same if the trialhad been conducted, asboth parties had a right toexpect, according to law and upon the evidence incourt.' McDaniels v. McDaniels, 40 Vt. 363. The trial court should have declared a mistrial injustice to itself as 

### wellas toparties, so that a fair trialmay 

### resultand the verdict when rendered may be entitled to therespect of both parties and the confidence of the court. We cannot be too strictinguarding trialsby juries from improper influences. This strictness isnecessary togive due confidence to parties inthe results of their causes, and to enlighten the public who have recourse toour courts that any improper influencewhich has the natural tendency toprejudice the verdict 

### is grounds for a mistrial. 

## * * *" 147 Mont. 147, 148, 410 P.2d 722. Wereverse the judgment of conviction against defendant and remand for a new trial.

### We concur:

### Mr. Justice John Conway Harrison dissenting: I dissent. By sheer speculation the majority finds, without a scintilla of proof, that the jury might have been influenced by something Juror Kruger said or did before being removed at the conclusion of the case. Our recent case of State v. Baugh, (1977), Mont.



## , 571 P.2d 779, 34 St.Rep. 1315, is in my view controlling. In that case we held: "Defendantwas not prejudiced by the occurrence involving juror Kolar. While serious prejudicemay have arisen if juror Kolar had participated in the verdict, those problems were thus arrested by replacing her with an alternate juror and the further safeguards taken by the trial judge." 571 P.2d 784. 

### The same can be said here. The trial court questioned the offending juror to insure he had not discussed the case with the other jurors. The defense counsel agreed that the court should wait until the conclusion of the evidence to dismiss the juror so as not to disrupt the jury. The court went further by instructing the juror not to discuss his removal with anyone and to say he was sick, if asked. In addition, there is nothing in the record to show prejudice to the appellant. The fact the juror said the victim's family "enjoyed the friendship of most people in the area" falls far short of the prejudice thatwould prevent a fair trial. This fact came out during voir dire examination. The juror himself contradicted any factual basis for the statement when he denied talking to any of the jurors or that any had talked to him.

### Here, the trialcourt had the opportunity to take what curativemeasures 

### werenecessary before the jury's deliberations began and I can find no basis for finding any prejudice against the appellant warranting a new trial. 

### ra

Mr. Chief Justice Frank I. Has 

### el1concurs with the dissent. 

# f 

# 1 w

Chief Justice