State v. Steele

• Decision Date: 05 October 2004
• Docket Number: No. 03-314.,03-314.
• Citation: 323 Mont. 204,99 P.3d 210,2004 MT 275
• Parties: STATE of Montana, Plaintiff and Respondent, v. Dustin STEELE, Defendant and Appellant.
• Court: Montana Supreme Court

99 P.3d 210

2004 MT 275

323 Mont. 204

STATE of Montana, Plaintiff and Respondent, v. Dustin STEELE, Defendant and Appellant.

No. 03-314.

Supreme Court of Montana.

Submitted on Briefs June 8, 2004.

Decided October 5, 2004.

For Appellant: Carl B. Jensen, Jr., Public Defender Office, Great Falls, Montana.

For Respondent: Mike McGrath, Montana Attorney General, Robert Stutz, Assistant Attorney General, Helena, Montana; Brant Light, Cascade County Attorney, Susan Weber, Chief Deputy County Attorney, Joel Thompson, Deputy County Attorney, Great Falls, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Dustin Jay Steele (Steele) appeals the judgment of the Eighth Judicial District Court, Cascade County, denying his motion for a mistrial.

¶ 2 We address the following issues on appeal and affirm:

¶ 3 1. Did the District Court err in denying Steele's motion for a mistrial?

¶ 4 2. Did the District Court have sufficient evidence before it to support Steele's conviction of assault on a peace officer?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 The facts are undisputed. The Great Falls Police Department received information that Steele was in possession of drugs and firearms.

¶ 6 Based on this information, the police obtained a search warrant. However, due to the information that Steele was always armed, the police attempted to get Steele outside his residence in order to conduct the search peacefully. Thus, an officer who had an established rapport with Steele contacted Steele, asking Steele if he would meet the officer at a local restaurant.

¶ 7 After Steele agreed to the meeting, several officers, including Officer Baumann, witnessed Steele flee from his residence. They noticed that Steele was running with his hands in his pants, attempting to keep items from falling out of his pants. Steele's actions were indicative to the police that Steele was armed. Officer Baumann pursued Steele, and upon coming within several feet of him, Steele slowed and pivoted toward him while at the same time reaching into his waistband.

¶ 8 At that point, Officer Baumann testified that he believed Steele was acquiring him as a target and that he feared for his safety and his life. A gunshot then rang out and Officer Baumann saw Steele drop a pistol. The officers later discovered that Steele had shot himself in the calf.

¶ 9 Officer Baumann tackled Steele to the ground, after which a second gun fell to the ground. Thereafter, the officers found several other items in Steele's possession, including a knife and a pipe used for inhaling drugs.

¶ 10 Upon their search of Steele's home, the officers found three surveillance cameras, a police scanner, two baggies of methamphetamine, aluminum foil with burn marks and residue, marijuana, and several other weapons.

¶ 11 Steele was charged with eight separate offenses, including a felony assault on a peace officer charge. Of the eight counts, Steele conceded at trial that he was guilty of seven of them. Regarding the remaining contested felony assault on a peace officer charge, the jury received testimony, and the case was submitted to them for deliberation.

¶ 12 During deliberations, the jury became deadlocked. The foreperson advised the bailiff of their situation, after which time the bailiff testified to what followed.

Best of my knowledge it was approximately between 8:15 and 8:30. There was a knock on the door, answered the door, the foreperson said, we are split, basically, we are hung.

I said you need to keep working on it. I went inside. She [the foreperson] tried to show me where they split. I pushed the paper away. I didn't want to see anything like that. I said the Court has instructed me, or has made mention, that we will be here until at least midnight.

I said you need to find a common ground and keep working on it. As, has been my experience in the past, most judges, you know, are—you will keep deliberating on such matters. I have done this in the past and I have never had a problem with it.

¶ 13 The bailiff advised the jury in the above-quoted fashion outside the presence of the parties and without the judge's approval. Upon learning of this occurrence, Steele moved for a mistrial. In denying his motion, the judge stated:

In looking at that [whether Steele's rights were prejudiced by the bailiff's actions], although the actions of the bailiff are not what the Court would have preferred would have occurred here, they were exactly what I was going to instruct the jury within moments of the time that I was advised that there was a motion that was to be made.

And it was the Court's full intent to advise this jury that they were to go back and they were to continue to deliberate. They were to do that in every effort to reach a verdict in this matter.

...

So the Court, after reviewing everything in front of it, and in light of the fact that the Court would have instructed this jury exactly what the bailiff did, although I, again, am not condoning what has occurred here, what I have to look at is whether or not the defendant's been prejudiced as a result of it.

In light of my full intent to give this jury the instruction that they had to continue to deliberate, the Court cannot find that the defendant has been substantially prejudiced in light of this.

¶ 14 Steele now appeals the District Court's denial of his motion for a mistrial.

STANDARD OF REVIEW

¶ 15 We review a district court's grant or denial of a motion for a mistrial to determine whether the district court abused its discretion. State v. Kennedy, 2004 MT 53, ¶ 14, 320 Mont. 161, ¶ 14, 85 P.3d 1279, ¶ 14.

DISCUSSION

¶ 16 1. Did the District Court err in denying Steele's motion for a mistrial?

¶ 17 Steele argues that "the bailiff should not have responded to the jury," as "[i]t is the province of the [District] Court—not the bailiff—to answer the jury's concerns." By doing so, Steele argues that "the bailiff denied the parties and the parties' counsel the opportunity to consult with the [District] Court, which is a right the parties have under" § 46-16-503(2), MCA. In addition, Steele argues that the bailiff's response to the jury, namely that the jury needed "to find a common ground," violated Montana law, since "[i]n Montana, jurors are not required to find common ground." Steele contends that the bailiff's directive constituted "an impermissible `Allen' charge." Hence, on that basis, Steele argues that his convictions should have been vacated.

¶ 18 The State of Montana (the State) responds first that in arguing that his convictions should have been vacated, "Steele does not distinguish between those counts his counsel conceded at trial that he committed, and the single count he contested at trial." As such, "[s]ince the jury's verdict on the uncontested counts would have been unaffected by the bailiff's conduct, denying a mistrial on those counts would not have denied him a fair and impartial trial." Therefore, the State argues, "the district court's denial of Steele's motion was appropriate regarding the uncontested counts."

¶ 19 Regarding the bailiff's statements to the jury, the State contends that § 46-16-503(2), MCA, is "inapplicable to this case," as "[t]here is no suggestion that the jurors disagreed about the testimony or desired instruction on a point of law, the two situations that trigger the applicability of the statute." Further, the State argues that "nothing in this case `could be construed as coercing a minority juror into following the majority,'" given that "the bailiff ... did not know if there was a majority view or how the jurors were split, having refused their attempts to provide the split." Rather, the State contends that the substance of the bailiff's statements "is consistent with the district court's advice to its juries," and is similar to the statement at issue in State v. George (1986), 219 Mont. 377, 711 P.2d 1379. The State also argues that, unlike the situation in State v. Randall (1960), 137 Mont. 534, 353 P.2d 1054, "members of Steele's jury were not told to give `proper regard and deference to the opinions of each other.'"

¶ 20 We address Steele's arguments separately.

Bailiff's Actions

¶ 21 Section 46-16-503(2), MCA, states:

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.

¶ 22 In State v. Herron (1976), 169 Mont. 193, 545 P.2d 678, we held that the communications between the jury and the court via the bailiff violated then § 95-1913(d), RCM (1947), as "defendant's attorney was not notified nor present and had no way to protect his client from the jury's confusion." Herron, 169 Mont. at 198, 545 P.2d at 681. Specifically, the jury in Herron asked the bailiff to convey a question to the presiding judge as to whether they should sign the first verdict form before proceeding to the their determination of the next charge. The jury was confused by two separate instructions given to them. The judge and the bailiff conversed off the record, not in the presence of the parties. Thereafter, the bailiff returned to the jury room, misadvising them that they were to arrive at only one verdict and should therefore only sign one verdict form. The jurors were confused by this instruction, given that the defendant was charged with multiple counts, and the jury ultimately failed to return a verdict. Herron, 169 Mont. at 195-96, 545 P.2d at 680.

¶ 23 Here, the bailiff advised the jury "to find a common ground," and to "keep working on it," after the jury told the bailiff that they were deadlocked. Ultimately, the jury convicted Steele of assault on a peace officer. However, unlike the bailiff in Herron, the bailiff here did...