State ex rel. Forsyth v. District Court of Eleventh Judicial Dist.

• Decision Date: 02 July 1985
• Docket Number: No. 84-415,84-415
• Citation: 216 Mont. 480,701 P.2d 1346
• Court: Montana Supreme Court
• Parties: STATE of Montana, ex rel., Jerry Paul FORSYTH, Petitioner, v. DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT, State of Montana, In and For the County of Flathead, The Honorable Michael H. Keedy, Judge presiding, Respondent.

Page 1346

701 P.2d 1346

216 Mont. 480

STATE of Montana, ex rel., Jerry Paul FORSYTH, Petitioner, v. DISTRICT COURT OF the ELEVENTH JUDICIAL DISTRICT, State of Montana, In and For the County of Flathead, The Honorable Michael H. Keedy, Judge presiding, Respondent.

No. 84-415.

Supreme Court of Montana.

Submitted on Briefs Oct. 23, 1984.

Decided Jan. 3, 1985.

On Petition for Reconsideration

July 2, 1985.

[216 Mont. 482] Robert S. Keller, Kalispell, for petitioner.

Mike Greely, Atty. Gen., Clay Smith, argued, Asst. Atty. Gen., Helena, Ted O. Lympus, County Atty., Kalispell, for respondent.

WEBER, Justice.

Jerry Paul Forsyth (Forsyth) was charged with deliberate homicide in Flathead County District Court for allegedly killing his wife, Karen Forsyth, on December 11, 1979. Forsyth has filed a petition for a writ of supervisory control claiming jury tampering and prosecutorial misconduct in a previous trial which is claimed to warrant dismissal of the proceeding, denial of speedy trial and error of the district court in ordering a change in the place of trial. We decline jurisdiction of the petition for supervisory control.

The issues raised in the petition are:

1. Was Forsyth denied a speedy trial?

2. Has jeopardy attached because of jury tampering or prosecutorial misconduct?

3. Does prosecutorial misconduct in this case constitute a deprivation of due process sufficient to warrant dismissal of the criminal proceeding?

4. Did the district court err in ordering a change in the place of trial?

On January 28, 1980, Forsyth was charged with deliberate homicide. The first trial was held in Flathead County during March and April 1980 and resulted in Forsyth's conviction. That conviction was reversed by this Court in State v. Forsyth (1982), 197 Mont. 248, 642 P.2d 1035. Forsyth's second trial commenced in Lake County on December 1, 1982, and a mistrial because of jury deadlock was declared by the district court on January 2, 1983.

Following the second trial, various motions and orders were made with regard to the furnishing of a partial and complete transcript. Forsyth petitioned this Court for supervisory control regarding appointment of counsel. On May 11, 1983, this Court held there was no showing sufficient to warrant supervisory control. Forsyth then asked for a hearing on availability of On November 14, 1983, the district court set a tentative trial date for February 1984. At a conference in December 1983 Forsyth renewed motions for evidentiary hearings on jury tampering and prosecutorial misconduct. Evidentiary hearings were held as requested by Forsyth and on April 24, 1984, the district court denied the motion to dismiss for double jeopardy and lack of due process predicated upon jury tampering and prosecutorial misconduct. On May 10, 1984, Forsyth moved to dismiss for lack of a speedy trial, but his motion was denied on May 23, 1984.

public defender firms to represent him. That hearing was held on June 22, 1983, and resulted in the appointment of public defenders as counsel. Forsyth petitioned this Court a second time for a writ of supervisory control and on October 6, 1983, the writ was granted and Forsyth's present counsel was appointed at public expense.

On June 6, 1984, the trial court ordered that the trial be held in Flathead County with a jury selected in Toole County. The court set a trial date of October 1, 1984. Forsyth again moved the court to dismiss for lack of a speedy trial. The district court denied this motion on July 13, 1984. Forsyth then advised the district court of his intent to file a third petition for supervisory control and the district court then vacated the October 1, 1984, trial date.

I

In view of the number of requests for supervisory writs in this action, it is appropriate that we review the fundamental standards for assumption of supervisory control. Under Article VII, Section 2(2), Montana Constitution, this Court has general supervisory control over all courts. Rule 17, M.R.App.Civ.P. describes the procedure for original writs and in part states:

"The supreme court is an appellate court but it is empowered by the constitution of Montana to hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. The institution of such original proceedings in the supreme court is sometimes justified by circumstances of an emergency nature, as when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy ..."

In view of the substantial increase in applications for supervisory control in recent years, it is also appropriate to restate the basic standards guiding acceptance of original jurisdiction by this Court, as stated in State ex rel. O'Sullivan v. District Court (1946), 119 Mont. 429, 431-432, 175 P.2d 763, 764:

"[S]upervisory control is an extraordinary remedy, to be exercised only in extraordinary circumstances. We have said ... that to justify such a writ an exigency or emergency must be shown to exist, or that a gross injustice would result from a denial of the writ, and the absence of other adequate relief.... 'As the appellate jurisdiction was granted for the purpose of revision and correction, and the original jurisdiction under these writs was granted to enable us to render such relief as is appropriate under them, so the supervisory power was granted to meet emergencies to which those other powers and instrumentalities are not commensurate. It is independent of both, and was designed to infringe upon the functions of neither. It has its own appropriate functions, and, without undertaking to define particularly what these functions are, we think one of them is to enable this court to control the course of litigation in the inferior courts where those courts are proceeding within [their] jurisdiction, but by mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal or the remedy by appeal is inadequate....' " [citation omitted]

In 1902, this Court pointed out that an application for supervisory relief must establish more than simple error, otherwise, the writ "would lie to correct each and every mistake of district courts, and in great measure supplant the ordinary appeal." State ex rel. Harris v. District We will now review the record in this case to determine whether there are extraordinary facts which warrant issuance of a supervisory writ.

                Court (1902), 27 Mont. 280, 282, 70 P. 981, 982.   These basic principles regarding assumption of supervisory control are embodied in Rule 17, M.R.App.Civ.P., which requires that an applicant establish circumstances of an emergency nature, as when a cause has arisen under conditions making consideration at the trial level and appeal to this Court an inadequate remedy
                

II

Because the facts relevant to all four issues are intertwined we will first review the facts in general.

Bailiff's Juror Communications

The bailiff during the second trial as well as eight regular jurors and two alternate jurors testified at an April 5, 1984, hearing before the district court regarding the bailiff's oral communications with the jury. Forsyth relied on the following improper comments made by the bailiff to various jurors in substance as follows: that the bailiff could say one word and this would be all over with; that a prosecution witness had nearly blown it at the first trial and that the jury should see her medicine cabinet; during a recess from cross-examination by Forsyth's counsel, the bailiff commented that "we can sure tell who is getting paid by the hour"; that the trial had already cost $6,000, a comment made when handing out checks to the jurors; that all of the jurors should stay together while looking at the crime scene in order that nothing would happen which could justify a retrial; the bailiff advised the jurors after lengthy conferences between counsel and the court that the county attorney, defendant's attorney and the trial judge would explain the reasons for the conferences; the bailiff identified the victim's parents to several jurors; and a comment to the jury regarding the length of jury deliberation in the prior trial, and that in the present trial the jurors could anticipate a conclusion in time for a happy new year.

In its order of April 24, 1984, the district court found that at no time during the trial did the bailiff discuss with any juror the merits of the case from either party's standpoint, nor did he express to any of the jurors his opinion or expectations with regard to a proper verdict or outcome; that the bailiff was not present during and did not participate in jury deliberations; with the possible exception of an assurance that counsel would meet and respond to their questions after the trial, none of the incidents were discussed by the jurors in their deliberations, nor did any of the bailiff's comments or conduct influence the jury's deliberations or effect their verdict; that the jurors who filed affidavits complaining of the incidents testified that they concluded that the defendant was not guilty and unwaiveringly followed that conclusion through the course of deliberation; and the jurors who filed affidavits stating that the bailiff had been too friendly in conversation acknowledged that nothing in his behavior had influenced their view of the case or their votes in deliberations. As a result, the district court concluded that none of the actions complained of was motivated by a desire or attempt by the bailiff to influence the jurors' perception of the trial or to affect the jury's deliberations or decision-making, and that none of the bailiff's comments influenced the attitude, perception or ultimate judgment of any juror.

Prosecutorial Misconduct

The only witnesses on this issue at the district court hearing were Forsyth's principal attorney and the Flathead County Attorney. Their...