State v. Counts
Decision Date | 19 April 1984 |
Docket Number | No. 83-347,83-347 |
Citation | 209 Mont. 242,41 St.Rep. 681,679 P.2d 1245 |
Court | Montana Supreme Court |
Parties | STATE of Montana, Plaintiff and Respondent, v. John Harvey COUNTS, Sr., Defendant and Appellant. |
Cok & Wheat, Michael D. Cok, Bozeman, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Wm. Nels Swandal, County Atty., Livingston, for plaintiff and respondent.
Following a jury trial in the District Court of Park County, defendant was convicted of the offenses of aggravated assault and attempted aggravated assault under sections 45-5-202(1)(a) & (c) and 45-4-103(1), MCA. He was sentenced to five years in the penitentiary for each offense. The terms were to be served concurrently with the last three years of each sentence suspended. He was also sentenced to a consecutive two-year term for the use of a firearm. Defendant appeals. We affirm the judgment of the District Court.
The sole issue presented is whether the District Court erred in denying the defendant's motion for a mistrial on the grounds of a juror's communication during lunch with a key prosecution witness.
The criminal offenses occurred in Park County at the home of Mrs. Girdler. Defendant and his nephew were visiting Mrs. Girdler on the morning of September 23, 1982. The State's evidence is summarized as follows. John Renbourne, a neighbor of the Girdlers, arrived at the Girdler home to deliver some photographs. As Renbourne approached the house, he met defendant and his nephew. Renbourne extended his hand in greeting to defendant, but defendant struck Renbourne, knocked him to the ground and repeatedly kicked him. Mrs. Girdler witnessed the incident. When she screamed, the defendant ceased the kicking. After Renbourne had gone into the Girdler home to clean his wounds, defendant pulled a gun out of his pocket and pointed it at Renbourne.
Defendant's testimony was corroborated by his nephew. Defendant admitted striking and kicking Renbourne and also pulling his gun on Renbourne. He claimed that these acts were justified by self-defense. Defendant testified that Renbourne approached him with a gun, that Renbourne was fighting and kicking him, and that he pulled the gun because Renbourne said: "Shoot me, shoot me, shoot me or I will kill you."
No question is raised as to the sufficiency of the evidence to convict on both counts charged. The sole issue pertains to alleged jury misconduct involving Mrs. White, a juror, and Mrs. Girdler, who testified as a witness for the prosecution. During the lunch recess on the first day of trial, juror White and her husband were seated at a restaurant in Livingston. Mrs. Girdler came in and was invited by Mrs. White to join them for lunch. They spent about thirty minutes having lunch. Both Mrs. White and Mrs. Girdler testified that their conversation did not concern the defendant or the trial.
Both the District Court and counsel for the defendant questioned Mrs. White and Mrs. Girdler at length. Because of the possible appearance of improper conduct, we set forth significant portions of the examination by the court of juror White and witness Girdler:
The testimony by the witness, Mrs. Girdler included the following:
Defense counsel also interrogated the witness and failed to find any indication that the luncheon conversation in any way concerned the trial of the case or the defendant.
The acquaintance between Mrs. White and Mrs. Girdler had been disclosed in the course of the voir dire. In response to questioning by counsel, Mrs. White indicated that she had known Mrs. Girdler and her folks for a long time, that it was just an acquaintance and that anything she knew about Mrs. Girdler would not influence her decision about Mrs. Girdler's testimony. Mrs. White was not challenged by defense counsel during the voir dire.
The essential contention of the defendant is that, based upon Turner v. Louisiana (1965), 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, a new trial is warranted because of the interaction between the juror and a witness for the State. In the Turner case, two deputy sheriffs who were key prosecution witnesses were also in charge of the jurors. The Court emphasized that this was a continuous and intimate association throughout a three day trial. Defendant contends that here, as in Turner, a new trial should be granted because of the lunch together, the possibility of communication, the appearance of impropriety, and the social interaction between the juror and the witness.
Immediately prior to the luncheon in question, the District Court admonished the jury as follows:
The record does not disclose that juror White discussed the case with Mrs. Girdler or anyone else.
The ruling of the District Court on a motion for mistrial is not to be lightly disturbed. As we stated in Schmoyer v. Bourdeau (1966), 148 Mont. 340, 420 P.2d 316:
148 Mont. at 343, 420 P.2d at 317-18.
In this state, if jury misconduct is shown tending to injure the defendant, prejudice to defendant is presumed. However, this presumption is not absolute and may be rebutted by testimony of the juror showing facts which prove that prejudice or injury did not occur. See State v. Eagan (1978), 178 Mont. 67, 79, 582 P.2d 1195, 1202 and cases cited therein. In the present case, any presumption of prejudice arising from the unusual circumstance of a lunch between a juror and a principal witness has been overcome by the testimony of both the juror and the witness during the course of the trial and prior to...
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Mason v. Ditzel
...evidence that the juror and the party discussed the case and properly denied Mason's motion for a mistrial. See State v. Counts (1984), 209 Mont. 242, 248, 679 P.2d 1245, 1248 (any presumption of prejudice arising from the unusual circumstance of a juror inviting a principal witness for lun......
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State v. Wright, 00-840.
...a new trial, this Court will not lightly disturb that ruling. Mason v. Ditzel (1992), 255 Mont. 364, 842 P.2d 707, and State v. Counts (1984), 209 Mont. 242, 679 P.2d 1245. "To overthrow it this Court must be shown by evidence that is clear, convincing, and practically free from doubt, of t......
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State v. Murray
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