State v. Brogan

• Decision Date: 25 July 1995
• Docket Number: No. 94-116,94-116
• Citation: State v. Brogan, 272 Mont. 156, 900 P.2d 284 (Mont. 1995)
• Parties: STATE of Montana, Plaintiff and Respondent, v. Welch E. BROGAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 284

900 P.2d 284

272 Mont. 156

STATE of Montana, Plaintiff and Respondent, v. Welch E. BROGAN, Defendant and Appellant.

No. 94-116.

Supreme Court of Montana.

Submitted on Briefs April 27, 1995.

Decided July 25, 1995.

Joseph B. Gary, Bozeman, Richard L. Kalar, Boulder, CO, for appellant.

Joseph P. Mazurek, Atty. Gen. and John Paulson, Asst. Atty. Gen., Helena, for respondent.

GRAY, Justice.

Welsh E. Brogan (Brogan) appeals from the judgment and sentence entered by the Sixth Judicial District Court, Park County, following a jury verdict convicting him of the felony offense of possession of unlawfully taken wildlife in violation of § 87-3-118(2), MCA. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err in denying Brogan's motion for a new trial based on juror misconduct?

2. Did the District Court err in refusing to provide further instruction as requested by the jury?

3. Did the District Court err in failing to make a record of the jury's question and its response?

4. Did the District Court abuse its discretion in admitting prior acts evidence?

5. Did the District Court err in determining that § 87-3-118(2), MCA, is not unconstitutionally vague?

Brogan is the owner-operator of a wild game farm located in Corwin Springs, Montana. He breeds and raises elk for commercial sale. His operation consists of a series of penned pastures, including a 440-acre upper pasture which is secured by an electric fence.

In January 1991, officials from the Montana Department of Livestock examined Brogan's elk. They determined that the elk had been exposed to tuberculosis, quarantined his farm and forbade any movement of the elk to or from the farm.

In February 1992, investigators from the Montana Department of Fish, Wildlife and Parks (Department) placed the Brogan game farm under surveillance in response to an anonymous tip. They determined that, at that time, Brogan's lower pasture contained 154 elk, ten animals more than his most recent official report to the Department. Two Department wardens examined the perimeter fence to the upper pasture and determined that it was completely intact; the upper pasture contained two elk. Based on the wardens' observations, as well as the discrepancy in total number of elk, the Department decided to conduct an inspection of Brogan's farm.

The inspection was held on February 18, 1992. Three wild and untagged elk were found in the upper pasture on the day of the inspection. Initially, Brogan refused to admit that there were excess elk on his farm. He later stipulated that he had excess elk and that they were wild. He claimed, however, that he had left the gate to the upper pasture open in an effort to lure the elk out.

Brogan was charged with possession of unlawfully taken wildlife, a violation of § 87-3-118(2), MCA (1991). Prior to trial, the State of Montana (State) advised that it intended to introduce Brogan's previous convictions on similar charges. The District Court denied Brogan's motion in limine which sought to exclude that evidence. The case went to trial and resulted in a hung jury and mistrial.

The State refiled its complaint. The second trial resulted in a jury verdict convicting Brogan of violating § 87-3-118(2), MCA (1991). The District Court denied Brogan's subsequent motion for a new trial.

Brogan's sentence was deferred for two years provided he complies with the following conditions: (1) serve two years probation; (2) obey all laws; (3) pay $3,000 in restitution; (4) pay a $10,000 fine; (5) pay the costs of his trials in the amount of $4,358.20; and (6) forfeit his hunting, fishing and trapping privileges for three years. Brogan appeals from the judgment and from the court's denial of his motion for a new trial, which asserted each of the issues raised in this appeal.

STANDARD OF REVIEW

Section 46-16-702(1), MCA, provides that:

(1) Following a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice.

The grant or denial of a motion for a new trial is within the discretion of the trial court. State v. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1076. Absent an abuse of discretion the court's decision will be affirmed. State v. Hatfield (1995), --- Mont. ----, ----, 888 P.2d 899, 901.

1. Did the District Court err in denying Brogan's motion for a new trial based on alleged juror misconduct?

Brogan submitted affidavits from three jurors in support of his motion for a new trial. Juror Jay O'Dell stated that, during the deliberations, one of the members of the jury "asserted that it was Mr. Brogan's legal duty pursuant to Montana law to go to the upper pasture to check after his helper reported seeing elk tracks in the pasture." The other two affidavits also state that, after he was informed about the tracks, the subject juror claimed Brogan owed a duty to either check the upper pasture or have it checked, to determine if there were wild elk on his property.

Brogan argues that, based on these affidavits, one of the jurors in this case "assume[d] the role of the court by instructing other members of the jury in regard to the law of the State of Montana." The State does not dispute the information contained in the affidavits. It claims, however, that the affidavits could not be considered for the purpose of impeaching the verdict because the alleged juror's comment did not fall within one of the three exceptions to Rule 606(b), M.R.Evid. That rule generally provides that a juror may not testify as to what occurred during the jury's deliberations except when the information pertains to: (1) whether extraneous prejudicial information was improperly brought to the jury's attention; (2) whether any outside influence was brought to bear on any juror; or (3) whether any juror was induced to assent to any verdict or finding by resort to the determination of chance. Rule 606(b), M.R.Evid.

The District Court considered the affidavits to the extent necessary to determine whether they could be used to impeach the verdict and concluded that the affidavits established only that the juror had expressed his opinion about the law. The court relied on Harry v. Elderkin (1981), 196 Mont. 1, 637 P.2d 809, for the proposition that, in order to use the affidavits to impeach the verdict under Rule 606(b), M.R.Evid., there must be some outside influence more than mere misapprehension of the law. See Elderkin, 637 P.2d at 813.

In Elderkin, the jury in a personal injury suit found the plaintiff 85% negligent. The plaintiff moved for a new trial, arguing juror misconduct or irregularity. The motion was denied and the plaintiff appealed. Elderkin, 637 P.2d at 811-12.

The plaintiff renewed her argument regarding the jury on appeal, relying on an affidavit from the jury foreman which claimed that the jury did not understand the instructions regarding contributory negligence, comparative negligence and mitigation of damages. We pointed out that cases addressing juror affidavits fall into categories involving either external or internal influence on the jury. Elderkin, 637 P.2d at 813. Where external influence is exerted or external prejudicial information is brought to the jury's attention, juror affidavits can be the basis for overturning the judgment. Elderkin, 637 P.2d at 813. Examples of external influence include a juror's telephone call obtaining information with regard to previous litigation by the plaintiff, visiting the scene of an accident or bringing a newspaper article about the trial into the jury room for the jurors to see. Geiger v. Sherrodd (1993), 262 Mont. 505, 510-11, 866 P.2d 1106, 1109 (citations omitted).

Regarding internal influences, however, we have held that juror affidavits "may not be used to impeach the verdict based upon internal influences on the jury, such as a mistake of evidence or misapprehension of the law." Elderkin, 637 P.2d at 813 (citations omitted). In this case, the affidavits claim that the subject juror made a comment about the law. At most, the subject juror's comment was his lay opinion about the law which, under Elderkin, constituted a misstatement or misapprehension of the law. Thus, the juror affidavits relate to an internal influence on the jury.

We conclude that the juror affidavits Brogan submitted do not fall within the exceptions stated in Rule 606(b), M.R.Evid., and, therefore , that they could not be used to impeach the jury's verdict. We hold that the District Court did not abuse its discretion in denying Brogan's motion for a new trial based on the juror affidavits.

2. Did the District Court err in refusing to provide further instruction as requested by the jury?

During its deliberations, the jury submitted a question to the court regarding a game farmer's legal obligations. Neither the precise nature of the question nor the court's response was recorded; thus, neither is part of the record on appeal. Nonetheless, because the parties do not dispute the essential facts and the District Court ruled on the issue in denying Brogan's motion for a new trial, we will address the issue.

It is undisputed that the jury posed a question to the court regarding the legal obligations of a game farmer in Montana, including whether Brogan had a duty to inspect his pastures. The court declined to give further instructions and told the jury to rely on the instructions already provided. Brogan argues that the District Court's failure to provide further instruction entitles him to a new trial.

Section 46-16-503(2), MCA, provides:

After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties.

Brogan acknowledges...