State v. McMahon, 94-196

• Decision Date: 04 May 1995
• Docket Number: No. 94-196,94-196
• Citation: 271 Mont. 75,51 St.Rep. 353,894 P.2d 313
• Parties: STATE of Montana, Plaintiff and Respondent, v. Gary Dennis McMAHON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 313

894 P.2d 313

271 Mont. 75

STATE of Montana, Plaintiff and Respondent, v. Gary Dennis McMAHON, Defendant and Appellant.

No. 94-196.

Supreme Court of Montana.

Submitted on Briefs March 16, 1995.

Decided May 4, 1995.

Bruce E. Becker, Livingston, for appellant.

Joseph P. Mazurek, Atty. Gen., Micheal Wellenstein, Asst. Atty. Gen., Helena, John V. Potter, Meagher County Atty., White Sulphur Springs, for respondent.

LEAPHART, Justice.

Gary Dennis McMahon (McMahon) appeals his conviction in the Fourteenth Judicial District, Meagher County, of misdemeanor assault and two counts of felony intimidation. We reverse.

Since this matter is being remanded for retrial, we set forth only enough facts to put the issue into proper context.

On September 16, 1993, McMahon took a high dosage of valium and codeine, brandished a rifle, and the sheriff was summoned. The sheriff called to the scene found McMahon laying face down on the floor of his trailer. The sheriff also found two pill bottles and took them from the trailer to ascertain the threat the pills posed to McMahon. McMahon allegedly came from the trailer with a knife and threatened the sheriff physically and verbally until the bottles were given back to McMahon. McMahon was handcuffed and bound at the knees and ankles, and strapped to a gurney. It is alleged that McMahon threatened to kill the sheriff and sheriff's wife and threatened ambulance and hospital personnel. He was charged with misdemeanor assault and two counts of felony intimidation.

Six issues are presented:

1. Was there sufficient evidence to support McMahon's conviction for misdemeanor assault.

2. Was the information charging McMahon with intimidation defective?

3. Was McMahon properly charged with intimidation?

4. Did the District Court err in denying McMahon's motion for a directed verdict?

5. Did the District Court err in denying McMahon's motion for mistrial when, during voir dire and in front of other prospective jurors, several prospective jurors commented on McMahon's reputation and one prospective juror commented on her fear of McMahon arising out of the incident in question?

6. Whether McMahon's intoxication rendered him incapable of forming the requisite criminal intent.

Since we reverse on the basis of improper juror comments during voir dire (Issue 5) we need not discuss Issues 1, 2, 3, 4, and 6.

Did the District Court err in denying McMahon's motion for mistrial when, during voir dire and in front of other prospective jurors, several prospective jurors commented on McMahon's reputation and one prospective juror commented on her fear of McMahon arising out of the incident in question?

When asked about the difficulty of following the judge's instructions regarding the presumption of innocence, prospective juror P.H. stated that "I was kind of involved, you know what I mean. When someone calls and says, 'You better come get your children, because there's a guy with a gun,' then you know, I ran. I was scared and they were scared. So, I don't know." Prospective juror K.M. stated he should not be a juror because of extensive time spent with McMahon in the classroom and his knowledge of McMahon. He stated that "I've had different situations arise with him." When being questioned about potential bias, prospective juror C.C. stated "I could try to listen to all of the evidence. It's kind of hard, because I've seen him downtown in action. I know he's capable of doing things." The judge admonished that he did not want the prospective jurors to address the specifics of any prior knowledge they had about the defendant, but merely to answer whether they had prior knowledge. McMahon's counsel moved for, and the judge denied, a motion for a mistrial.

The standard of review applied to a district court's denial of a motion for mistrial is "clear and convincing evidence that the trial court's ruling was erroneous." State v. Gollehon (1993), 262 Mont. 293, 302, 864 P.2d 1257, 1263 (citation omitted). "The decision of a district court judge as to the impartiality of a jury should not be set aside unless there is clear abuse of discretion." State v. Sullivan (1994), 266 Mont. 313, 320, 880 P.2d 829, 834. Regarding juror prejudice, this Court further stated that:

It is only where [jurors] form fixed opinions of the guilt or innocence of the defendant which they would not be able to lay aside and render a verdict solely on the evidence presented in court that they become disqualified as jurors.

Sullivan, 880 P.2d at 834; Great Falls Tribune v. District Court (1980), 186 Mont. 433, 439-40, 608 P.2d 116, 120. Although the Court in Sullivan was considering whether the district court erred in its failure to strike individual jurors for cause, its analysis is applicable to the instant case.

In State v. Dixon (1994), 264 Mont. 38, 869 P.2d 779, we upheld the conviction where the prosecutor's improper comments were considered insignificant when viewed in the context of the entire record. We noted that the judge instructed the jury not to use comments such as counsel's as evidence, and to consider only evidence when debating the verdict. Dixon, 869 P.2d at 781. In State v. Walton (1986), 222 Mont. 340, 342, 722 P.2d 1145, 1146, the prosecutor made potentially erroneous and prejudicial comments regarding presentation of evidence to the judge but the judge admonished the prosecutor, issued precautionary statements to the jury, and the jury ultimately rejected several of the State's charges. In State v. Gafford (1977), 172 Mont. 380, 563 P.2d 1129, we held that non-responsive and prejudicial answers by a prospective juror were not cause for reversal when the defendant's motion was not made at the first recess following the answers and the answers had been invited by further questions of defense counsel which were common and expectable. In State v. Rhodes (1974), 164 Mont. 455, 524 P.2d 1095, we held that a mistrial for prejudice against the defendants, caused by a juror's comments, was not warranted because defense counsel did not make a sufficient showing of prejudice.

These cases demonstrate a trend that improper comments by prosecutors or prospective jurors about the defendant or about the evidence, are not grounds for mistrial if the judge instructs the jury to disregard the questionable comment and if the court is satisfied that the juror can lay aside a fixed opinion and render a verdict solely on the evidence presented. Sullivan, 880 P.2d at 834. In the instant case, the judge admonished the prospective jurors to avoid bias and to confine their discussion to the fact that they may have a bias rather than the substance or source of that bias.

We conclude, however, that the prospective juror comments in this case were so prejudicial that reversal is warranted. Comments by prospective jurors C.C. and K.M. damaged McMahon's reputation from the start. Prospective juror P.H.'s at the start of a two-day trial--in which one of the primary issues was whether McMahon had the ability to carry out his threats--clearly prejudiced McMahon's right to a fair and impartial jury. McMahon contends that his threats were conditional only and he had no ability to carry them out. Certain prospective jurors commented, in the presence of the entire panel of venireman, that they had "seen him downtown in action," that "situations" had arisen with him, and that the incident in question caused one of the prospective jurors to...