State v. Murray
| Citation | 741 P.2d 759,228 Mont. 125,44 St.Rep. 1394 |
| Decision Date | 10 September 1987 |
| Docket Number | No. 86-335,86-335 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Rosanne Marie MURRAY, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
Morrison, Hauge, Ober, Young & Melcher, Robert Morrison (argued), Havre, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Marc Racicot (argued), Asst. Atty. Gen., Helena, Donald A. Ranstrom, Blaine Co. Atty., Chinook, for plaintiff and respondent.
Roseanne Murray appeals her Blaine County District Court conviction for deliberate homicide. She raises three issues on appeal; (1) whether the District Court erred in refusing to declare a mistrial because of juror misconduct; (2) whether the defendant received the effective assistance of counsel where the State allegedly failed to give timely notice of witnesses; and (3) whether the court erred in allowing evidence of the defendant's prior disciplinary acts toward her foster daughter, the victim of the homicide. We affirm.
In September 1985, the defendant and her husband had five children living with them in their home near Chinook, Montana. T.H., the victim, was a 29 month old foster daughter of the Murrays. L.F. and F.F., who were then approximately nine and eight years old respectively, were also foster daughters and were half sisters of T.H. A., an adopted daughter, was then three years old and J., almost six months old at that time, had recently been placed for adoption with the Murrays.
On September 26, 1985, the defendant called Dr. James Beggs in Chinook at approximately 3:05 p.m. and reported that T.H. had stopped breathing. Dr. Beggs and an ambulance crew went to the Murray house to assist the child. The ambulance transported T.H. to the Northern Montana Hospital in Havre. She died later that evening. The county coroner listed the cause of death as internal injuries with associated bleeding, infection and shock. The autopsy of T.H. showed multiple bruises, abrasions and internal injuries. For purposes of this appeal, we need not recite the horrible specifics of the injuries nor all of the circumstantial evidence pointing to the defendant as the perpetrator. Police arrested the defendant and the State charged her with deliberate homicide.
The Blaine County District Court scheduled defendant's trial for April 7, 1986. On March 28, 1986, ten days prior to trial, the State gave notice of its intent to possibly call twelve additional witnesses. The defendant moved to continue the trial date or, in the alternative, to deny the prosecution the right to call the additional witnesses. Ultimately, the defense appeared to acquiesce in the court's decision not to continue the trial and to allow the State to call some of the additional witnesses.
On April 2, 1986, the State filed notice of its intent to introduce evidence of prior acts of violence or discipline toward T.H. At the omnibus hearing in January 1986, the State had indicated it would not rely on evidence of past acts. In response to the April notice, the defense moved (1) to quash the State's notice of intent to introduce evidence; (2) in limine, to prevent the State from introducing evidence of the defendant's prior acts; and (3) for more specific information on the date, conduct and relevance of defendant's prior acts. The court ruled against the defense on all three aspects of its motion and allowed the State to introduce evidence of the defendant's prior disciplinary acts.
The case went to trial on April 7, 1986. Evidence at trial revealed that (1) F.F., L.F. and T.H. may have been abused, sexually and otherwise, prior to living with the Murrays; (2) that the two older children acted in violent and sexually inappropriate ways toward the younger children; and (3) that F.F. was especially violent towards T.H. Defendant's testimony implied that T.H. may have been fatally injured by her nine year old half sister, F.F. Eventually, the jury convicted the defendant of deliberate homicide. The court sentenced defendant to fifty years in prison and designated her a nondangerous offender for parole purposes. This appeal followed.
The first issue is whether the court erred in refusing to declare a mistrial because of juror misconduct. Defendant complains about the alleged misconduct of two jurors. After the trial had commenced, juror Schaeffer was seen entering the local office of the state Social and Rehabilitative Services (SRS). At that point, evidence had already shown that SRS was involved peripherally in the case. The judge admonished the jury as a whole to avoid SRS personnel and the SRS office. Later, the defense produced evidence that Schaeffer, during the course of a conversation with his wife, mentioned the names of the Murrays and of some of the children while he was in a restaurant. Schaeffer denied that he discussed the case in public with anyone.
The most serious misconduct was that of juror McCoy. While the trial was in progress and after there had been evidence of sexual abuse of the children, juror McCoy made several phone calls attempting to contact Mr. Ranstrom, the Blaine County Attorney who assisted with the prosecution of defendant. Juror McCoy refused to identify herself and Ranstrom initially refused to talk with her for that reason. On her third call to Ranstrom's office, McCoy left an anonymous message quoting a newspaper article that "[e]ven criminal court cases involving sexual abuse charges are closed to the public ..." Still without knowing McCoy's identity, Ranstrom returned her call to explain that the evidence of sexual abuse was properly admissible in a public trial in this instance. McCoy replied that she still didn't like it (apparently referring to the evidence of sexual abuse). Ranstrom stated that he didn't like it and that the victims and "perpetrators" probably didn't like it either. Ranstrom later ascertained that the caller was juror McCoy and he informed the court and defense counsel of what had transpired. The article to which juror McCoy referred had appeared some months before in the Chinook, Montana, newspaper. The article talked of the sexual abuse of children in general terms and quoted several people, including one of the prosecutors of this case, on the problems of sexual abuse cases. The article made no mention of the instant case.
McCoy's actions violated the instructions given by the court at the start of the trial. The court had instructed, among other things, that the jurors should not talk about this case with anyone; that the jurors could not talk with any of the witnesses or attorneys involved in the case; that the jurors must not consult any books, encyclopedias or any other source of information, unless the judge authorized them to do so, and that the jurors should not read about the case in the newspapers.
The defense moved for a mistrial, complaining mainly about juror McCoy but also about juror Schaeffer. The court denied the motion.
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:
"We hold that once the District Court has considered the matter, however it is raised, whether on a question for mistrial or motion for a new trial this court will not lightly disturb that ruling. To overthrow it this court must be shown by evidence that is clear, convincing, and practically free from doubt, of the error of the trial court's ruling. 148 Mont. at 343, 420 P.2d at 317-18.
State v. Counts (Mont.1984), 679 P.2d 1245, 1248, 41 St.Rep. 681, 686.
In Counts, the defendant moved for a mistrial because of the possibility of juror misconduct. We stated,
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. (Citation omitted.)
Here, juror McCoy testified (1) that she called prosecutor Ranstrom to ask why the evidence of sexual abuse was not heard in closed hearings; (2) that she found the newspaper article accidentally; (3) that, prior to the close of evidence, she had not formed or expressed any opinion as to the guilt or innocence of the defendant; (4) that she was not prejudiced either for or against the defendant; and (5) that she could be a fair and impartial juror. Juror Schaefer testified that he did not discuss the case in public at a restaurant and that he had not formed an opinion as to guilt or innocence prior to jury deliberations. Prosecutor Ranstrom also testified that the phone conversation with juror McCoy was basically limited to the propriety of allowing sexual abuse evidence in hearings open to the public. Lastly, we note that the newspaper article was general in nature and made no mention of the instant case.
Arguably, the jury misconduct tends to injure the defendant and, therefore, prejudice should be presumed. However, we find that the District Court could properly conclude that there was sufficient evidence to rebut any presumption. We affirm the denial of the motion for mistrial because there is not clear and convincing evidence of the error of the court's ruling.
The second issue is whether the defendant received the effective assistance of counsel where the State allegedly failed to give timely notice of witnesses. Appellant relies on State v. Sotelo (Mont.1984), 679 P.2d 779, 782, 41 St.Rep. 568, 571, wherein this Court stated that where counsel "has not been afforded sufficient time to prepare a defense, the accused's specific rights have been violated and his general right to a fair trial has been denied."
Ten days before trial, the State gave notice of its intent to possibly call twelve additional witnesses. After the defendant's objection, the State agreed not to call five of...
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