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: qul;z i9lkjl 

Submitted: June 5, 1978 

Decided: q&G 2 - !9]@ 
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 deliberate homicide, entered in the District Court of the Sixteenth Judicial District, Fallon County, Montana. 

The single issue to be decided on this appeal is whether 

there was impropriety in the handling of a problem that 

arose during defendant's trial when one of the empaneled 

jurors made statements in a public place, outside the place 

of trial, indicating his prejudice, and implying that others 

on the jury panel might also be prejudiced against defendant. 

Accordingly, the facts can be briefly stated as far as 

the alleged crime is concerned. 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 that Russell Hanson, while a guest 

at her home in the early morning hours of that date, had 

attacked her and attempted to rape her, and that she was 

required to repel his aggression by threatening to use a 

30.30 rifle against him. Defendant stated she had ordered 

the decedent to get out of her mobile home and that the 

decedent, instead of leaving, had taken a sitting position 

on a couch in the home. At a time when he was apparently 

starting to get up from the couch, defendant claimed the 

rifle accidentally discharged while she was holding it at 

waist level, and the bullet therefrom struck Hanson and 

caused his death. 

The case was tried beginning February 2, 1976, in 

District Court. The jury was empaneled on the first day and 

opening statements were made. Trial continued through 
February 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 for defendant informed the court that he had just 

learned that one of the jurors, Roland Kruger, had made 

statements in a bar in the downtown area the evening before. 

The person to whom he made the statements was eventually 

called before the court to report 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 in chambers with Counsel and the Clerk and 

that it is 1:00 o'clock. Immediately prior to 

the noon break, Counsel appeared in chambers 

and advised the Court that one of the jurors 

on the panel sitting in the Cause now being 

tried had been downtown last evening in the bar 

discussing this case in public and the Court 

then ordered that this meeting be held at 1:00 

and that the person who overheard the juror be 

brought before the Court - In Camera and his 

testimony be taken. 

"JOHN MEYERS, having been first duly sworn by 

the Clerk, testified upon his oath as follows: 

"BY THE COURT: 

"Q. For the record, will you state your name. 

"A. John Meyers. 

"Q. Where do you live? 

"A. Phebus Trailer Court. 

"Q. It is my understanding that you were downtown last evening, is that correct? 

"A. Yes. 

"Q. Where were you at? 

"A. Corner Bar. 

"Q. At what time was this? 

"A. About 9:30. 

"Q. What happened in the Corner Bar at about 9:30? 
"A. Well, Roland Kruger was telling me that, you 

know, that he was on jury duty and as far as he 

was concerned, that she was guilty and he also told 

me that half of the jury is Hanson's friends. 

"Q. Who else was present when he was talking to you? 

"A. He was just by me at the 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, let me 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 to him? 

"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 directly with you? 

"A. Yes. 

"MR. KELLY: That is all I have. Thank you. 

"THE COURT: Okay. That is all, Thank you. 

" (Witness excused. ) 

"THE COURT: Now, I think that we should call 

him in and ask him, give him an opportunity to 

explain it or deny it or admit it. 

"MR. YOUNG: I suggested to Pat that if, you know, 

if this were supported, rather than create a furor 

on the jury, we could wait until the case is in 

and excuse him and use the first alternate. If he 

were called in here 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 that we 

ought to have him in and have him testify. 

"MR. KELLY: I agree. 

"THE COURT: Whether we do it now or do it following 

recess at the conclusion of today's trial is immaterial to me. 

"MR. YOUNG: It doesn't matter to me. 

"THE COURT: Then in the event that he says, 'Yeah, 

I did it,' what are Counsel's suggestions? 

"MR. KELLY: My suggestion--well, first of all, 

as to him, I think that he should be excused at 

the conclusion of the case prior to the jury 

going to the deliberations. I think the proper 

alternate should be put in his stead. I have a 

second question. Does this indicate a problem 

other than with him on this jury? And I am 

wondering if we have any information from the 

Bailiff regarding conversations. Have they been 

discussing this case prior to the time of 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 will ask him if he has discussed 

it with any of the other jurors. 

"THE COURT: Well, I think this is a proper inquiry to ask him. If he has been discussing the 

case with the other jurors, that is--and whether 

the rest of the jury have indicated that they have 

made their minds up and if the other members of 

the jury have, then I suppose we have a mistrial. 

And if we have a mistrial, I suppose that we better find out about it today. 

"MR. YOUNG: We don't have any reason to think 

that the rest of the jury is contaminated. 

"THE COURT: No, but if he says this is what has 

happened and the whole jury is contaminated, then 

I think we may as well declare a mistrial and start 

over again. If, on the other hand, he says, no, he 

hasn't talked with the rest of the jury, or he 

hasn't heard any of them talk, then I think what we 

ought to do is get rid of him and put an alternate 

in and go ahead and complete the trial. I am not 

going to presume that all of these people break 

their oath. 

"ROLAND KRUGER, being first duly sworn by the 

Clerk, testified upon his oath as follows: 

"BY THE COURT: 

"Q. Roland, it has been brought to the attention 

of the Court that last night you were downtown in 

the Corner Bar at about 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, I was. 

"Q. Were you there about 9:30? 

"A. I would assume so. 

"Q. And while you were there, you were down 

at the end of the bar talking to John Meyers? 

"A. John Meyers? I don'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 I made, I made a 

joke of it. There was no -- 

"Q. Well, have you discussed this case with any 

of the other jurors? 

"A. No, I haven't. 

"Q. Have any of the jurors discussed it with you? 

"A. No, they sure haven't. No, I am positive. I 

am not that type of guy. 

"THE COURT: Do Counsel have any questions? 

"MR. YOUNG: No. 

"MR. KELLY: No. 

"A. No, if I said anything, it was in the line 

of bull. There was no business talk. 

"THE COURT: Okay, you may leave. Tell the 

Bailiff that I will advise him when we are ready 

to proceed. 

" (Witness excused. ) 
"THE COURT: Okay, what is the suggestion? 

"MR. KELLY: His answer was that anything he said 

was made in a -- said in a humorous fashion. So 

I take it as some of the admission in connection 

with his conversation of this case. I would think, 

at the very least, he should be excused. 

"THE COURT: I think so. 

"MR. KELLY: I would also suggest that he might -- 

He appears to be either extremely hung over or 

perhaps he is under the influence right now. 

"THE CLERK: Hard of hearing, I think. 

"MR. YOUNG: He worked for many years, rig work, 

has probably affected his hearing. I haven't 

talked to him for a couple of years and I am not 

aware of that problem. 

"THE COURT: All right. Now, did you want me to 

excuse him now or at the conclusion of today's 

case? 

"MR. KELLY: I don't think he should be excused 

now. I think at the conclusion of today's case. 

"MR. YOUNG: Fine. 

"THE COURT: All right. Let's go." 

Thereafter, the District Court resumed the trial, with 

Mr. Kruger still sitting in the jury for the balance of the 

afternoon, during which 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, trial was 

resumed at 9:30 a.m. at which time the following proceedings 

took place in chambers: 

" IN CHAMBERS : 

" (Mr. Xruger called in. ) 
"THE COURT: After thinking about this matter 

we discussed yesterday, the consequences are 

that if it were provable, if you made these 

statements, we would have a mistrial and we 

would have to go through the whole thing one 

more time at a considerable expense to the 

county. 

"A. Yes. 

"THE COURT: Not only that, but if it were 

provable, you would have violated at least 

two laws, those being contempt of court and 

failure to perform your official duties. And 

I am not interested in seeing you charged with 

a crime. I am not interested in anything other 

than seeing that this trial is properly, fairly 

conducted and that the county isn't put to the 

expense of retrying it. And so, for that reason, I think it would be best of all if I remove you as a juror and put one of the alternates 

in your spot. And that is what I am going to do. 

"A. Yes. 

"THE COURT: And I think that, first of all, as 

far as you are concerned, I am going to instruct 

you not to discuss this trial or not to discuss 

the reason that you were removed with anybody, 

and if you do, I will charge you with contempt 

of court because I don't want a built-in error 

in this 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 told me. Now, I don't know 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 in and then -- 

"(Whereupon Mr. Kruger was replaced by Alternate 

Juror NO. 1. ) " 
Thereafter, with Kruger excused, and the alternate 

juror sitting in his place, the jury retired to consider its 

verdict, and returned its finding that defendant was guilty 

of mitigated deliberate homicide. On February 26, 1976, 

defendant was sentenced to a term of five years in the state 

prison. She moved for a new trial on the ground she had 

been denied her constitutional right to a fair and impartial 

jury. The motion for new trial was denied on March 11, 

1976, and thereafter this appeal ensued. 

Defendant states two issues for review on appeal: 

1. Was the statement made by Juror Kruger such that it 

constituted sufficient misconduct and prejudice on the part 

of the jury so as to require a mistrial? 

2. Did the alternative remedy chosen by the court, 

that is, replacing the jury with an alternate, cure the 

trial defect? 

We will consider the issues together. 

The right of a defendant to speedy public trial by an 

impartial jury is so sacred to our system of jurisprudence 

that it is preserved both in our state and federal constitutions. Article 11, Section 24, 1972 Montana Constitution; 

Sixth Amendment, United States Constitution. 

The verbatim excerpt from the transcript indicates the 

District Court, as well as counsel, were fully aware of the 

sanctity of defendant's right to an impartial jury. We are 

called upon here to determine whether the course of action 

taken by the District Court upon the discovery of a disqualified juror did in fact remove any prejudicial effect occasioned thereby so that defendant was accorded her right of 

fair trial. 
For the most part, it seems that we would regard as 

persuasive the finding or determination of the District 

Court that any prejudicial effect of misconduct by a juror 

had in fact been removed. Certainly in such matters as 

whether, for example, the responses of a prospective juror 

on voir dire indicate his state of mind, or whether a juror 

had in fact disqualified himself by prejudicial statements, 

the determination by the District Court would be given 

considerable weight by this Court. In the situation presented here, however, it appears that this Court is in as 

good a position as the trial court to make this judgment 

where there are no factual conflicts apparent regarding the 

conduct itself. As was stated in People v. Brown, (1976), 

"Some cases have treated the issue of the 

prejudicial effect of jury misconduct as being 

a question of fact for the trial court and 

have held that a finding of no prejudice implied in the denial of a new trial should not 

be set aside unless there is no evidence to 

sustain it. * * * We are of the view however 

that the more enlightened and appropriate rule 

is that since jury misconduct challenges the 

fundamental right to an unprejudiced jury and 

the fairness of the trial proceedings, this 

issue is an independent appellate issue to be 

adjudicated by this court based upon the whole 

record. * * *" 

From the record it appears that the challenged juror 

did in fact make the statements attributed to him in a 

public place to a third person, while the trial was in 

progress. When the juror was brought before the court in 

chambers, he first denied 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 case with any of the other jurors. 
When the juror was excused after his examination, there 

was a discussion by court and counsel as to whether he was 

"under the influence" or hung over, or whether he was in 

fact hard of hearing. At any rate, the juror was permitted 

to sit with the remainder of the jury for the balance of the 

time that testimony was taken that day. 

Further, the record reflects that in the period when 

the challenged juror was sitting with the jury, following 

his examination in chambers, four recesses were taken by the 

court during the remainder of the afternoon. There was a 

recess taken while court and counsel retired to chambers to 

discuss a legal point, and a further recess for the same 

purpose. A rest-period recess was taken midafternoon, and 

at the 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 to be noted that the same admonition had 

been given prior to the discovery of the prejudicial statements, which admonition the challenged juror apparently 

ignored. Allowing this juror to sit with the remainder of 

the jury, including the alternate, after the discovery that 

he was a disqualified juror is the first difficulty 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 

told me that half of the jury is Hanson's friends". The 

questions by the District Court on this point to Kruger did 

not quite reach the source of this juror's information as to 

this statement, nor the implication therein that half of the 

jury was also prejudiced 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 People v. 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), 164 N.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 interrogation addressed 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 the 
exhumation of the deceased. The court learned of this fact 

five days after the trial had commenced. The court called 

the juror into chambers and determined there that the juror 

had in fact previewed 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 in Baugh took one more important step. 

After the jury had reached its verdict, but before the 

verdict was announced, the court questioned the jury and 

asked them if at any time during the trial the disqualified 

juror had discussed with any of them any of the evidence on 

the trial. All of the jury responded "No". In this case we 

have no such reassuring interrogation. There is left hanging 

in the air here 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 in this state that if jury misconduct is 

shown tending to injure the defendant, prejudice to the 

defendant is presumed; however, the presumption is not 

absolute and may be rebutted by the use of testimony of the 

jurors to show facts which prove that prejudice or injury 

did not or could not occur. State v. Jackson, (1890), 9 

Mont. 508, 522, 24 P. 213, 216. Putro v. ~alcer and Mannix 

~lectric, Inc., (1966), 147 Mont. 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 verdict was announced, overcame the presumption. In this case, the members of the jury were not so 

interrogated, and therefore the presumption of prejudice 

remains. 

What this Court said in Putro, supra, bears repeating: 

"The guiding principle of our legal system is 

fairness. We must tenaciously adhere to the 

ideal that both sides of a lawsuit be guaranteed 

a fair trial. Sec. 27, Art. 111, Montana Constitution. The function of the jury is to decide the facts of the case only on evidence 

introduced at trial. It has been noted that 

'There is no practicable method to so analyze 

the mental operation of the jurors as to determine whether, in point of fact, the verdict would 

have been the same if the trial had been conducted, 

as both parties had a right to expect, according 

to law and upon the evidence in court.' McDaniels 

v. McDaniels, 40 Vt. 363. The trial court should 

have declared a mistrial in justice to itself as 

well as to parties, so that a fair trial may result and the verdict when rendered may be entitled 

to the respect of both parties and the confidence 

of the court. We cannot be too strict in guarding 

trials by juries from improper influences. This 

strictness is necessary to give due confidence to 

parties in the results of their causes, and to 

enlighten the public who have recourse to our 

courts that any improper influence which has the 

natural tendency to prejudice the verdict is 

grounds for a mistrial. * * *" 147 Mont. 147, 

148, 410 P.2d 722. 

We reverse 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: 

"Defendant was not prejudiced by the 

occurrence involving juror Kolar. 

While serious prejudice may 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 that would 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 trial court had the opportunity to take what 

curative measures were necessary 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 el1 concurs with the dissent. f 1 

w 

Chief Justice