No. 88-258 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWALTER HARRY DeGRAW, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Stillwater, 

The Fonorable G. Todd Baugh, Judge presiding. 

COUNSEIJ OF RECORD: 

For Appellant: 

Jeffrey T. Renz, Billings, Montana 

For Respondent : 

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CIFiled: <-? 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kathy Seel-ey, Asst. Atty. General, Helena 

C. Ed Laws, County Attorney, Columbus, Montana 

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III Submitted on Briefs: Sept. 15, 1988 

Decided: December 2, 1988 

- Clerk 
Mr. Justice William E. Hunt, Sr. , del-ivered the Opinion of 

the Court. 

Walter Harry DeGraw, the defendant, appeals the decision 

of the District Court of the Thirteenth Judicial District, 

Stillwater County, denying defendant's motion for a new trial 

or, in the alternative, a mistrial due to jury misconduct. 

We affirm in part, reverse in part, and remand for a new 

trial. 

DeGraw raises the following two issues on appeal: 

(1) Whether the District Court erred in refusing to 

grant a new trial or declare a mistrial when, during the 

trial, the jury foreman learned of defendant's alleged 

criminal record. 

(2) Whether the District Court erred in refusing to 

give defendant's proposed instruction no. 4, instructing that 

if two conclusions can be reasonably drawn from the 

testimony, one favoring the defendant's innocence and the 

other tending to establish his guilt, the jury should adopt 

the conclusion of innocence. 

On December 8, 1986, DeGraw, the defendant, was charged 

by information under 5 45-5-202, MCA, with two counts of 

felony assault. DeGraw's case proceeded to trial. before a 

jury on Count I on July 27, 1987. The State dismissed Count 

I1 for lack of evidence. The jury returned a verdict on July 

29, 1987, finding DeGraw guilty of felony assault. 

Approximately a week after the verdict, Pierce, a juror 

who served on DeGraw's jury, contacted defense counsel and 

stated that Young, the foreman for the DeGraw jury, informed 

the jurors d-uring deliberations that he had reliable 

information from the sheriff's department. Upon learning of 

possible jurv misconduct, DeGraw mo~7ed for a new trj a,. The 
District Court held an evidentiary hearing on the motion on 

December 15, 1987. 

Foreman Young testified at the hearing that on the day 

before the jury deliberated, he had been a third party to a 

conversation in which a cook at a restaurant stated that 

DeGraw "had a criminal record as long as your arm." Young 

also testified that during the deliberations the jurors "were 

conversing about the credibility of Mr. DeGraw, and I said I 

had heard some things about Mr. DeGraw . . . ." Juror Pierce 

testified that foreman Young told the jurors before they 

started deliberations and before the vote was taken that "he 

had reliable information from the sheriff's department . . . about Mr. DeGraw [and] did we want to hear it . . . . " The 

jury declined to hear the offered information. 

The District Court denied DeGraw's motion for a mistrial 

or, in the alternative, a new trial, and subsequently 

sentenced DeGraw to seven years imprisonment for the offense 

of felony assault and two years for the use of a firearm 

during the commission of the offense. The District Court 

suspended seven years of the sentence. DeGraw appealed. 

The first issue raised on appeal is whether the District 

Court erred in refusing to grant a new trial or declare a 

mistrial when, during the trial, the jury foreman learned of 

DeGraw's alleged criminal record. 

A defendant's right to a fair and impartial jury is 

guaranteed by both our state and federal constitutions. 1972 

Mont. Const. Art. 11, 24; U.S. Const. Amend. VI. 

Consequently, jury misconduct tending to injure the defendant 

creates a presumption of prejudice to the defendant. The 

presumption, however, is not absolute and may be rebutted by 

evidence showing that prejudice or injury did not occur. 

State v. Murray (Mont. 1987), 741 P.2d 759, 762, 44 St.Rep. 
1394, 1397; State v. Eagan (1978), 178 Mont. 67, 79, 582 ~.2d 

1195, 1202. 

Upon reviewing whether a district court erroneously 

denied a defendant's motion for a new trial based on jury 

misconduct, a district court's ruling is given considerable 

weight. Eaqan, 178 Mont. at 76, 582 P.2d at 1200. This 

Court, however, is in as good a position as a district court 

to make this determination when no factual disputes exist as 

to a juror's conduct. Eagan, 178 Mont. at 76, 582 P.2d at 

1200 (citing People v. Brown (1976), 61 Cal.App.3d 476, 132 

Cal.Rptr. 217, 220-21). In this case, no dispute exists as 

to Young's conduct. He admitted that he was a third party to 

a conversation in which a person stated that DeGraw "had a 

criminal record as long as your arm." He also admitted that, 

before the deliberations began, he informed the jurors that 

he had heard some things about DeGraw. This Court may 

therefore conduct an independent review after examining the 

whole record. Eagan, 178 Mont. at 76, 582 P.2d at 1200. 

We hold that, under the present set of facts, defense 

counsel established a presumption of prejudice to DeGraw and 

the State failed to rebut this presumption. The evidence is 

uncontroverted that foreman Younq was dining at his sister's 

restaurant the evening before the jury delivered its verdict 

and that he was a third party to a conversation at the 

restaurant in which someone stated that DeGraw "had a 

criminal record as long as your arm." The record is also 

uncontroverted that Young was affected enough by the 

conversation that the following day prior to the 

deliberations when the jurors were discussing DeGraw's 

credibility, Young informed the jurors that he had reliable 

information from the sheriff's department and asked whether 

they wanted to hear it. Although the jurors declined to hear 

the offered information, the injury to DeGraw had already 
occurred when Young heard the prejudicial comments from a 

third party and then when he informed the remaining eleven 

jurors that he had reliable information from the sheriff's 

department. Undoubtedly, most people are likely to assume 

that information from the sheriff's department is not 

favorable when pertaining to a person who is being tried for 

felony assault. 

Three jurors--Pierce, Myers and foreman Young--were 

questioned at a hearing to determine whether jury misconduct 

prejudiced DeGraw. The District Court found that Young 

considered the information "nothing more than 'small-town 

gossip,'" and that Young did not allow the information to 

affect his decision. The District Court then noted that the 

other jurors did not allow Young to share the information and 

that Young could not have 'contaminated' the rest of the jury 

by merely mentioning that he had heard something. The 

District Court, citing Putro v. Baker (1966), 147 Mont. 139, 

147, 410 P.2d 717, 721-22, recognized that a juror cannot 

purge himself merely by declaring that extraneous information 

did not affect his judgment, but then concluded that "the 

testimony of these jurors shows that prejudice or injury did 

not occur." We disagree. 

We stated the applicable law first in 1890 in State u. 

Jackson (1890), 9 Mont. 508, 24 P. 213, where we held that 

the State may remove the presumption of prejudice by using 

the 

testimony of the jurors to show facts which prove 

that prejudice or injury did not or could not 

occur. For example, if a juror is temporarily 

separated from his fellows . . . he may show that 

during such separation he saw or talked to no one, 

and that no influences were brought to bear upon 

him of any character. This court, however, has 

never held, and does not now hold, that, if the 

contact of the juror with outside, prejudicial 
influences be clearly demonstrated and 

uncontroverted, the juror may purge himself by 

testifying that such influences did not affect his 

judgment in forming his verdict. 

Jackson, 9 Mont. at 522, 24 P. at 216-17. In a more recent 

decision, Eagan, a disqualified juror may have made his 

prejudice known to other jury members. The District Court 

relied completely on the responses from the challenged iuror 

that he had not discussed the case with the other jurors. We 

noted that improper conduct is imputed to the entire jury 

panel when one juror is found guilty of improper conduct. 

Eagan, 178 Mont. at 78, 582 P.2d at 1201 (citing Kinkaid v. 

Wade (1966), 196 Kan. 174, 410 P.2d. 333, 337). We then held 

that "[wle cannot assume . . . that the remainder of the jury 

panel had been safeguarded from contamination in the absence 

of some interrogation add.ressed to those jurors to dispel the 

possibility that prejudice existed . . . ." Eagan, 178 Mont. 

at 78, 582 P.2d at 1201. 

In the present case, the District Court relied 

completely on the responses of the three jurors who testified. 

at a subsequent hearing concerning jury conduct. The 

remaining nine jurors were never polled. The record does not 

contain any other evidence that would establish that 

prejudice to DeGraw did not arise. We cannot assume that the 

entire jury panel was safeguarded from contamination. The 

presumption of prejudice that is created when uncontroverted 

evidence establishes that prejudicial statements concerning a 

defendant reached one or more jurors, is not rebutted when, 

as in this case, no evidence existed to rebut the presumption 

other than the testimony of three of the twelve contaminated 

jurors. 

The District Court also stated that "[flacts more 

prejudicial on their face than the facts in the case at bar 
have not warranted a mistrial in other cases." In light of 

the three cases the District Court cited, which we review 

below, we disagree. In State v. Counts (1984), 209 Mont. 

242, 679 P.2d 1245, a juror and a key witness for the 

prosecution, who were acquaintances, had lunch together 

during the trial. The acquaintanceship between the juror and 

the witness had been disclosed during voir dire. The 

District Court and the defense counsel questioned both the 

witness and the juror because of the appearance of improper 

conduct, but unlike the present case with DeGraw, failed to 

find any indication that the luncheon conversation concerned 

the trial or the defendant in anyway. Counts, 209 Mont. at 

244-46, 679 P.2d at 1246-47. The record contained no 

evidence to dispute the District Court's finding and we 

therefore held that no prejudice to the defendant occurred 

and the appearance of impropriety was not a sufficient basis 

for reversal. Counts, 209 Mont. at 249-50, 679 P.2d at 1249. 

In State v. Gillham (1983), 206 Mont. 169, 670 P.2d 544, 

the defendant was convicted of attempted deliberate homicide. 

After the verdict was announced, defense counsel polled the 

jurors regarding their exposure to media coverage of the 

trial. One juror admitted to reading a newspaper article 

before the defendant presented his case. The article 

summarized the State's case. The juror testified that it was 

an accurate and factual report and "about the same" as the 

admissible testimony already before the jury. Gillham, 206 

Mont. at 180-81, 670 P.2d at 550-51. But again, unlike the 

present case, no evidence was before the court demonstrating 

that the information was prejudicial or other than what was 

already before the jury. We agreed that juror misconduct 

occurred but adopted the reasoning of the Oklahoma court 

which stated that "the burden of persuasion is on the 

defendant to show by clear and convincing evidence that (1) 
the jurors were specifically exposed to media reports which 

(2) were prejudicial to the defendant. Mere proof that a 

juror or jury was exposed to factual account of the trial 

will not meet this burden of persuasion." Gillham, 206 Mont. 

at 181, 670 P.2d at 551 (quoting Tomlinson v. State (Okla. 

Cr.App.1976), 554 P.2d 798, 804). We then held that the 

defendant failed to meet his burd-en of establishing the 

prejudicial nature of the questioned media information. 

Gillham, 206 Mont. at 181, 670 P.2d at 551. 

In State v. Murray (Mont. 1987), 741 P.2d 759, 44 St. 

Rep. 1394, two jurors' conducts were questioned. After the 

trial had begun, juror Schaeffer was seen entering the local 

office of the state Social and Rehabilitative Services (SRS) 

after evidence had already been shown that SRS was 

peripherally involved in the case. Evidence was also 

presented that Schaeffer had, during the course of a 

conversation with his wife at a restaurant, mentioned the 

names of the defendant and his children. Juror Schaeffer 

then testified that he did not discuss the case in public at 

a restaurant and that he had not formed an opinion as to the 

defendant's guilt or innocence prior to jury deliberations. 

Murray, 741 P.2d at 761-62, 44 St.Rep. at 1396-97. 

Juror McCoy's conduct was also questioned in Murray. 

During the course of the trial and after evidence of sexual 

abuse to the children had been presented, juror McCoy made 

several anonymous phone calls to a county attorney who 

assisted with the prosecution of the defendant. Without. 

knowing the identity of the caller, the county attorney 

finally spoke with the caller and listened to her concern 

that criminal cases involving sexual abuse charges should be 

closed to the public. The county attorney explained to the 

cal-ler that sexual abuse evidence was properly admissible in 

a public trial in the present case. The county attorney 
later discerned the identity of the caller and informed the 

trial judge and the defense counsel. Murray, 741 P.2d at 

761-62, 44 St.Rep. at 1396-97. 

Juror McCoy testified at a subsequent hearing that she 

did not form an opinion as to the defendant's guilt or 

innocence prior to deliberations, that she held no prejudice 

against the defendant, and that she could be a fair and 

impartial juror. The county attorney testified that the 

phone conversation with juror McCoy was basically limited to 

the propriety of allowing sexual abuse evidence in hearings 

open to the public. Murray, 741 P.2d at 761-62, 44 St.Rep. 

at 1396-97. 

Unlike the present situation with DeGraw, no prejudicial 

statements were made by either juror Schaef fer or juror 

McCoy. We held, however, that the defendant established a 

presumption of prejudice as a result of juror Schaeffer's and 

juror McCoy's conducts, but that the District Court properly 

concluded that sufficient evidence existed to rebut the 

presumption. Murray, 741 P.2d at 762, 44 St.Rep. at 1397. 

The District Court, in the present case, cited the above 

three cases as having facts more "prejudicial on their face 

than the facts in the case at bar . . . ." We disagree. In 

the present case, the evidence is uncontroverted that foreman 

Young was a third party to a conversation in which someone 

stated that DeGraw "had a criminal record as long as your 

arm." The evidence also establishes that while the jurors 

were discussing DeGrawls credibility, foreman Young mentioned. 

that he had some reliable information from the sheriff's 

off ice. In the above three cases, the jury misconduct 

presented in each case does not equal the amount of injury 

cast upon DeGraw by the prejudicial statements made to 

foreman Young and by him to the remaining eleven jurors 

during the del-iberations. We therefore hold that the State 
failed to rebut the presumption of prejud.ice established by 

DeGraw and reverse the District Court on this issue and 

remand for a new trial. 

The second issue raised on appeal is whether the 

District Court erred in refusing to give defendant's proposed 

instruction no. 4. This instruction reads: 

You are instructed that if the testimony in this 

case, in its weight and effect, be such that two 

conclusions can be reasonably drawn from it, one 

favoring the defendant's innocence and the other 

tending to establish his guilt, the jury should 

adopt the conclusion of innocence. 

The State objected to the instruction arguing that the 

instruction is confusing and that it is covered by the 

instruction that includes the presumption of innocence. The 

District Court refused this instruction stating that it was 

not an entirely correct statement of the law. 

Included in the instructions the District Court gave to 

the jury were the following: 

Instruction -- No. 2 

In determining what the facts are in the case, 

it may be necessary for you to determine what 

weight should be given to the testimony of each 

witness. To do this you should carefully 

scrutinize all the testimony given, the 

circumstances under which each witness has 

testified, and every matter in evidence which tends 

to indicate whether a witness is worthy of 

belief. . . . 

Instruction -- No. 7 

3. The State of Montana has the burden of proving 

the guilt of the defendant beyond a reasonable 

doubt. 
4. Proof beyond a reasonable doubt is proof of 

such a convincing character that a reasonable 

person would rely and act upon it in the most 

important of his own affairs. Beyond a reasonable 

doubt does not mean beyond any doubt or beyond a 

shadow of a doubt. 

5. The defendant is presumed to be innocent of the 

charge against him. This presumption remains with 

him throughout every stage of the trial and during 

your deliberations on the verdict. It is not 

overcome unless from all of the evidence in the 

case you are convinced beyond a reasonable doubt 

that the defendant is guilty. The defendant is not 

required to prove his innocence. 

Instruction -- No. 9 

To convict the defendant of FELONY ASSAULT, the 

State must prove the following element: 

That the defendant purposely or knowingly caused 

reasonable apprehension of serious bodily injury to 

STEVE KETCHUM or another person by use of a weapon. 

If you find from your consideration of all the 

evidence that this element has been proved beyond a 

reasonable doubt, then you should find the 

defendant guilty. 

If, on the other hand, you find from your 

consideration of all the evidence that this element 

has not been proved beyond a reasonable doubt, then 

you should find the defendant not guilty. 

Refusing an instruction, adequately covered bv other 

instructions, is not reversible error. Wheeler v. City of 

Bozeman (Mont. 1988), 757 P.2d 345, 347, 45 St.Rep. 1173, 

1176; Burns v. U & R Express (Mont. 1981), 624 P.2d 487, 489, 

38 St.Rep. 302, 304-05. In the present case, the 

instructions as a whole adequately informed the jury on the 

standards addressing the presumption of innocence and 

reasonable doubt and also gave the jurors guidance in 

weighing the witnesses' testimonies. Instruction no. 4 did 
not add to the court approved instructions. The District 

Court therefore did not err in refusing instruction no. 4. 

Affirmed in part, reversed in part, and remanded for a 

new trial. 

Justice 

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Justices