No. 92-006 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

ANGIN McNATT, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Julie A. Macek, Attorney at Law, Great Falls, 

Montana; William F. Hooks, Appellate Defender's 

Office, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, 

Carol E. Schmidt, Assistant Attorney General, 

Helena, Montana; Patrick L. Paul, Cascade 

County Attorney, Great Falls, Montana 

Submitted on Briefs: October 8, 1992 

Decided: April 5, 1993 

Filed: 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Defendant Angin McNatt was convicted of felony sexual assault 

on August 7, 1991, by the Eighth Judicial District Court, Cascade 

County. During the trial, defense counsel moved for a mistrial 

based on a claim of prejudice due to juror misconduct. This motion 

was denied, as was a similar motion for a new trial made after the 

jury verdict. McNatt appeals from the denial of these motions. We 

affirm. 

The following issues are presented on appeal: 

1. Did the District Court abuse is discretion when it 

denied McNatt1s motions for mistrial and a new trial after a juror 

interrupted defense counsel during cross-examination of a witness? 

2. Did the District Court's suspension of the 

cross-examination of a witness deprive McNatt of his constitutional 

right to confront and cross-examine that witness? 

Defendant was charged with sexually assaulting an 

eight-year-old girl, F. S. , on the evening of November 16, 1990, 

when he was babysitting F.S. and his two stepdaughters, Tarnika, age 

eleven, and Tasha, age nine. During the trial, Tasha testified on 

direct examination that F.S. described to her that night what 

McNatt had done. 

On cross-examination, defense counsel sought to impeach Tasha 

on the issue of when F.S. had told Tasha about the sexual assault. 

At four different times during cross-examination, Tasha was asked 

if she remembered stating to defense counsel during a pretrial 

2 
interview that F. S . did not mention the assault until the next day. 

Tasha related that she remembered the interview, where the 

interview took place, and that it was important to tell the truth. 

However, in response to the question of whether she remembered 

giving a different answer at the interview than during her 

testimony, she got upset, started to cry, and responded no. The 

fourth time defense counsel asked this question the State raised an 

"asked and answeredM objection. 

The court did not specifically rule on the objection, but 

observed that this question was "the point where [Tasha] breaks 

down all the time." The following exchange then took place: 

Q. (By Defense Counsel) : Tasha, we can talk about 

something else, okay? Have you had a chance to talk to 

[F.S.] about this since it happened? 

A. (Witness shakes head in a negative manner) 

A JUROR: Your honor, I cannot sit through anymore 

questioning to this little girl. If I am in contempt of 

court, I am in contempt, and I will settle with you. I 

must be excused right now if this questioning is going to 

continue . 

THE COURT: Yes, I think he is right. I think we have 

put this little girl through enough now. Take her off 

the stand. 

In chambers, defense counsel moved for a mistrial due to this 

outburst by the juror based on the juroris inability to remain fair 

and impartial, and the potential prejudicial effect this incident 

had on the entire jury panel. In the alternative, defense counsel 

requested that an alternate juror replace the juror who made the 

statement. The court denied this motion, finding no prejudice to 
either side as a result of this incident and noting that, while the 

statement may have indicated the juror's sympathy for the witness, 

it did not mean he was "for or against defendant." 

During McNatt's presentation of his evidence, counsel called 

the paralegal who had accompanied her to the pretrial interview 

with Tasha to testify that there were inconsistencies between 

Tasha's prior statements and her testimony on direct examination. 

The paralegal testified that Tasha had previously stated that F.S. 

did not tell her anything about the assault until the next day. 

The following day McNatt renewed his motion for mistrial due 

to the juror's outburst, alleging that he had been denied the right 

to cross-examine the witness because she had been removed from the 

stand before the defense had completed its questioning. This 

motion was denied, and the jury subsequently found McNatt guilty of 

felony sexual assault. 

On September 6, 1991, defendant again moved for a new trial on 

the grounds that the juror's interruption during trial deprived him 

of a fair and impartial trial. After hearing oral arguments, the 

court found that the juror's remarks had not indicated any bias 

against the defendant but were motivated by nonprejudicial sympathy 

for the child witness. The motion was denied, and on October 1, 

1991, McNatt was sentenced to ten years in prison, with five 

suspended. The sentence included the condition that McNatt not be 

released from prison until undergoing sex offender evaluation and 

treatment. Notice of appeal was filed on October 2, 1991. 

4 
I. 

Did the District Court abuse its discretion when it denied 

McNatt's motions for mistrial and a new trial after a juror 

interrupted defense counsel during cross-examination of a witness? 

The standard of review for reversing a lower court's ruling on 

a motion for mistrial requires clear and convincing evidence that 

the trial court's ruling was erroneous. State v. Gambrel (1990), 246 

Mont 84, 803 P.2d 1071; Statev.Sd0iS (1988), 235 Mont. 276, 766 P.2d 

1306. Because the trial court is in the best position to observe 

the jurors and determine the potential for prejudice when 

allegations of jury misconduct are raised, the court has 

significant latitude when ruling on these matters, and its 

determination is given considerable weight by this Court. State v. 

Eagen (1978), 178 Mont. 67, 582 P.2d 1195. We have also held that 

the grant or denial of a motion for a new trial is within the 

discretion of the trial court and will not be overturned unless it 

is shown that the defendant was deprived of a fair and impartial 

trial. Statev.Gambre1, 803 P.2d at 1076; Statev.Brush (1987), 228 Mont. 

247, 741 P.2d 1333. In this instance, we conclude that the 

required showing of clear error to overturn the District Court's 

rulings on the motions for mistrial and a new trial has not been 

met and conclude that the court did not abuse its discretion in 

denying McNatt's motions. 
Citing this Court's holdings in Statev. DeGraw (1988), 235 Mont. 

53, 764 P.2d 1290, and Statev. Murray (l987), 228 Mont. 125, 741 P.2d 

759, where we stated that jury misconduct tending to injure the 

defendant creates a presumption of prejudice to the defendant which 

the State must rebut by evidence of no injury, McNatt contends the 

presumption of prejudice remains because the State failed to meet 

this burden. When the court denied his motions and refused to 

question the juror on his ability to remain fair and impartial in 

light of this presumed prejudice, McNatt claims he was denied his 

constitutional right to a trial by a fair and impartial jury. 

Although McNatt correctly states our holdings in regard to a 

rebuttable presumption of prejudice arising from jury misconduct, 

we have previously made clear that this burden shifts to the State 

only after there has been a threshold showing of misconduct which 

iniures or prejudices the defendant. State v. Hedrick (1987) , 229 Mont . 

145, 745 P.2d 355; Statev.Dickens (l982), 198 Mont. 482, 647 P.2d 338. 

As we recently emphasized in State v. Sor-Lokken (1991) , 247 Mont. 343, 

805 P.2d 1367, lValleged jury misconduct must affect a material 

matter in dispute and prejudice the complaining party." 

In this instance, we find no initial showing that the juror's 

outburst resulted in prejudice to McNatt, and we will not make this 

inference when the District Court was in the best position to 

witness the incident and to evaluate the potential for prejudice. 

The comment occurred when a witness, who was not the victim, was 
being cross-examined on a matter that was not directly related to 

the elements of the alleged crime. It occurred while she was being 

asked when she recalled being told about the incident. The comment 

itself did not indicate any hostility toward the defendant, nor did 

it indicate that the juror had formed an opinion in relation to the 

defendant. 

The trial judge, able to put the juror's remark into context 

and to assess the effect of the juror's conduct on the jury panel, 

consistently found no evidence of prejudice against McNatt. Based 

on in-court observations, the judge found that the comment did not 

place blame on anyone, but was prompted by the fact that the juror 

"felt sorry for the little girlw after she repeatedly became upset 

by the same question. 

McNatt contends that he was not only injured by the juror's 

statement, but by the reaction of the judge when he agreed with the 

juror and stated: "I think he is right . . . we have put this 

little girl through enough now.'' McNatt claims that this 

concurrence in the juror's statement, which was expressed to the 

entire jury panel, was extremely prejudicial. 

We have cautioned that "to avoid prejudice to the defendant, 

the judge in a criminal trial should avoid making remarks which are 

calculated in any way to influence the minds of the jury. State v. 

Dawson (1988), 233 Mont. 345, 354, 761 P.2d 352, 358. However, 

this remark did not indicate prejudice against McNatt; nor did it 
indicate an effort by the judge to influence the jury. We find 

nothing in the record to support the presumption of "extreme 

prejudicet1 upon which McNatt bases his argument. 

In the absence of a showing of prejudice to McNatt resulting 

from the juror's outburst, the misconduct in itself is insufficient 

to entitle him to a mistrial or new trial. We conclude that the 

court's denial of McNattgs motions was not an abuse of discretion. 

11. 

Did the District Court's suspension of the cross-examination 

of a witness deprive McNatt of his constitutional right to confront 

and cross-examine that witness? 

McNatt claims that due to the juror's outburst, the witness, 

Tasha, was removed from the witness stand while she was in the 

process of being impeached and before defense counsel was finished 

questioning her on an issue directly related to her credibility. 

He argues that this was a denial of his constitutionally protected 

right to cross-examine adverse witnesses and is, therefore, ground 

for reversal. Citing Davis v. Alaska (1974), 415 U.S. 308, 318, McNatt 

contends that if the right to effective cross-examination is 

denied, constitutional error exists without the need to show actual 

injury. 

The State counters with the argument that, while the absolute 

denial of the right to confront and cross-examine a witness would 

be an impermissible deprivation of the accused~s constitutional 
right, the defendant's right to cross-examine is not absolute. The 

State cites State v. Gommenginger (l990), 242 Mont. 265, 274, 790 P.2d 

455, 461, for the proposition that it is within the trial court's 

discretion to exercise reasonable control over the mode of 

interrogating witnesses. Specifically, in this instance, the State 

claims the court acted within its discretion in deciding at what 

point the right to confront and cross-examine Tasha had been 

satisfied and beyond which point cross-examination would have been 

unreasonable. 

The 1972 Montana Constitution and subsequent cases analyzing 

the confrontation clause have made it abundantly clear that full 

cross-examination is a critical aspect of the right of 

confrontation. Stale v. Youtzg (1991) , 249 Mont. 257, 815 P. 2d 590. 

Balanced against this right of confrontation is Rule 611(a), 

M.R.Evid., which provides that the district court has discretion in 

exercising reasonable control over the mode and order of 

interrogating witnesses so as to (1) make the interrogation and 

presentation effective for the ascertainment of the truth, 

(2) avoid needless consumption of time, and (3) protect witnesses 

from harassment or undue embarrassment. We have held, however, 

that the court's discretion in exercising this control becomes 

operative only after the constitutionally required threshold level 

of inquiry has been afforded the defendant. Gommenginger, 790 P.2d 

at 461, (citing UtzitedStatesv. Tracq (1st Cir. 1982), 675 F.2d 433, 437). 
After reviewing the record in this instance, we hold that the 

trial court did not deprive NcNatt of his constitutionally 

guaranteed right to confront and cross-examine witnesses when it 

removedthe nine-year-old child flromthe stand after she repeatedly 

broke down in tears at a certain point in the questioning. The 

line of questioning at the time of the juror's interruption and 

Tashats removal from the stand was intended to raise questions 

about her credibility due to the fact that her pretrial statement 

conflicted with her trial testimony. Even though Tasha never gave 

the specific answer which defense counsel was attempting to elicit, 

it was not unreasonable for the judge, after the question was 

repeated several times, to decide that continued questioning would 

probably not accomplish anything further. 

Moreover, the paralegal's subsequent testimony, which 

confinned the inference raised in the question asked of Tasha, 

effectively put her credibility into issue. Although McNatt argues 

that testimony by a third party is not as effective as an admission 

by the party being questioned, the record does not suggest that 

continued pressure from defense counsel would have resulted in 

anything other than further loss of composure by the witness. 

Defense counsel admitted in chambers that, while she had a few 

questions left for Tasha, she decided not to anger the jury by 

attempting to continue questioning her and immediately objecting to 

Tashals removal from the stand. However, the record clearly 

demonstrates that the court was willing to allow defense counsel to 

10 
resume questioning at a later point in time if necessary and did 

not permanently foreclose further cross-examination on this or 

other issues. 

In State v. Short (1985), 217 Mont. 62, 68, 702 P.2d 979, 982, 

after considering a similar issue, we stated: 

This cross-examination brought out all the information 

necessary to argue the credibility . . . of this witness 

to the jury. We hold that limiting the extent of the 

cross-examination . . . did not violate [the defendant's] 

right to confrontation of witnesses and was not an abuse 

of the trial court's discretion. 

Our reasoning expressed in Short applies in this case. The 

cross-examination of Tasha, supplemented with the testimony of the 

paralegal, adequately brought out the information necessary to 

argue Tashals credibility to the jury. Additionally, the court did 

not foreclose defense counsel's ability to resume questioning if 

there were other areas of Tashals testimony she wished to explore. 

We hold that the court's removal of Tasha from the stand after the 

juror's outburst was a reasonable exercise of its discretion and 

did not violate McNattls constitutional right of confrontation. 

For these reasons, we affirm the judgment of the District 

Court. 
we concur: