STATE v STAFFORD
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NO. 83-147 IN THE SUPREBE COURT OF THE STATE OF MONTANA 1984 STATE OF MONTXqA, Plaintiff and Respondent, -vsMICHAEL JOSEPH STAFFORD, Defendant and Appellant. APPEAL FROPI: District Court of the Second Judicial District, In and for the County of Silver BOW, The Honorable Arnold Olsen, Judge presiding. COUNSEL OF RECORD: For Appellant: W. D. Plurray, Jr., argued, Butte, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Judy Browning argued, Asst. Atty. General, iielena Robert IT. McCarthy, County Attorney, Butte, Montana Submitted : Decided: January 10, 1934 March 5 , 1984 Filed:;. - Clerk . J u s t i c e F r a n k B. t h e Court. Mr. Defendant J r . d e l i v e r e d t h e O p i n i o n of Morrison, Michael Stafford Joseph v i o l a t i n g s e c t i o n 61-7-103(1), M.C.A.--leaving an accident involving personal i n j u r i e s . before a jury guilty, charged with t h e scene of The c a s e was t r i e d i n t h e D i s t r i c t C o u r t of t h e Second J u d i c i a l S i l v e r Bow County. District, was The j u r y r e t u r n e d a v e r d i c t o f and d e f e n d a n t was s e n t e n c e d by t h e t r i a l c o u r t . W e reverse. While Ramsay driving Road in through Silver an intersection Bow County, of U.S. defendant 10 and broadsided a n o t h e r a u t o m o b i l e , d r i v e n by Norwood R u s s e l l , which c a r r i e d a s p a s s e n g e r s R u s s e l l ' s w i f e and s o n . w e r e both injured. Russell check h i s c o n d i t i o n . right, R u s s e l l and h i s w i f e approached d e f e n d a n t ' s car to D e f e n d a n t t o l d R u s s e l l t h a t h e was a l l b u t t h a t h e was l e a v i n g b e c a u s e t h e p o l i c e would b e coming. Defendant weakened condition, d r o v e away, passed and R u s s e l l , out. A passing who was iri a motorist saw d e f e n d a n t ' s c a r and r e c o r d e d t h e l i c e n s e p l a t e number b e f o r e he l e f t t h e scene. highway A while patrolman inspecting the arrived accident shortly received d e f e n d a n t was a t a n e a r b y r e s i d e n c e . a thereafter, radio and call that D e f e n d a n t had d r i v e n t o t h e home o f a f r i e n d who c a l l e d t h e Highway P a t r o l t o r e p o r t the incident. defendant The p a t r o l m a n w e n t admitted that h e had t o t h e residence, been in where an accident. The p a t r o l m a n matched a g r i l l found a t t h e s c e n e o f t h e a c c i d e n t t o the defendant's car. charged personal with leaving injuries. D e f e n d a n t was t h e r e u p o n a r r e s t e d and the scene Defendant, of an who was accident involving intoxicated at the t i m e o f t h e c r a s h , was a l s o c h a r g e d w i t h d r i v i n g u n d e r t h e influence of alcohol. Defendant pleaded guilty to the D.U.I. charge. Defense counsel was advised by the court that if the defendant pleaded guilty he would receive a fine of $500 and ten days in jail. Defendant rejected the bargain and pleaded not guilty to the crime of leaving the scene of an accident. His main defense was that the mental state of "knowledge" was a key element of the crime, and that he lacked that mental state at the time of the accident. Defendant maintained that he could not remember causing the accident or leaving the scene with knowledge that people had been harmed. The jury found him guilty. After the trial, defendant's affidavit from one of the jurors counsel procured an (Crippen) stating that another juror (Warren Stillings) had told the jury during deliberations that, because defendant was drunk while driving, he should be convicted of the other charge on that basis alone. That juror also passed out a letter to the jury addressing a jury's duty to resist judicial instructions and acquit defendants in tax resistance cases. Counsel alleged that these incidents were prejudicial and he moved for a new trial. The court denied the motion, and later sentenced defendant to thirty days in the county jail and a fine of $1,000.00. The following issues are raised on appeal: 1. the Whether the verdict of the jury is invalid because presentation and endorsement of written material advocating abuse of the jurors' role amounted to extraneous prejudicial influence. 2. Whether defendant is entitled to a new trial because one of the jurors was prejudiced against drunk drivers and against following judicial instruction and the evidence. Whether the judge's conduct during the trial was 3. improper and prejudicial to the defense. Whether the jury was improperly and prejudicially 4. instructed on the effect that an intoxicated condition may have on the requisite mental state. Whether the jury was improperly and prejudicially 5. instructed because the trial court failed to include "knowledge of injury" as an element of the offense. Whether the trial court prejudicially failed to 6. instruct the jury on physical impairment of the ability to form the requisite mental state. Whether the jury was improperly and prejudicially 7. instructed on the inference to be drawn from the failure to produce a witness. 8. Whether the trial court improperly imposed a higher sentence than one offered in plea-bargaining without specifically justifying the increased sentence. The first three issues raise serious questions about the fundamental fairness afforded the defendant in his trial. Clearly essential to due process in a criminal prosecution, is a fair and impartial judge and a jury made up entirely of fair and impartial jurors. Defendant first argues that Juror Stillings' encouragement to disregard the judge's instructions, and the document advocating abdication of the juror's proper function constitute extraneous prejudicial. influence which render the verdict invalid. In order to impeach this verdict with the statements of a juror, the allegations must prejudicial influence upon the jury. amount to extraneous Rule 606 (b) M.R. Evid. It appears this information crosses the "inherent in the jury process" boundary to the extent it promotes abdication of the jury function in favor of policy implementation. However, there is no evidence, other than the very nature of the material and the statements, that this information had any prejudicial effect on the other jurors. We refuse to overturn the verdict on this ground because the defendant has failed to show prejudice by the extraneous information. State v. Maxwell (Mont. 1982), 647 P.2d 348, 352, 39 St.Rep. 1149, 1153; Erickson v. Perrett (1977), 175 Mont. 87, 91, 572 Defendant next argues that juror Warren StiIlings was partial and prejudiced against drinking and drinking drivers and that he concealed that fact during voir dire. Defendant argues the juror's prejudice is evident from his conduct and statements as reported in, the affidavit of another juror. The issue has been discussed by this Court before. "If one of the jurors is incompetent because of actual bias entertained by him against the accused, voir dire, and conceals such incompetency on his - this vitiates the jury as a whole. The accused being entitled to a jury of twelve impartial men, if he has but eleven, while the twelfth is hostile to him, he has not the impartial jury which the constitution and laws contemplate that he shall have." State v. Mott (1903), 29 Mont. 292, 297, 74 P. 228, 730. Respondent does not constitutional requirement. argue that this is not the Instead, respondent argues that the affidavit of juror Crippen is incompetent to impeach the verdict under rule 606 (b) M.R.Evid. sequitur. This argument is a non The rule simply does not come into play because the allegations are submitted for their relevance to matters prior to the jury's deliberations: juror Stillings. the bias and prejudice of See C. Mueller, "Jurors' Impeachment of Verdicts and Indictments in Federal Court Under Rule 606(b)," 57 Neb.L.Rev. 920, 956-57(1978). The inquiry here is not into the validity of the verdict; rather, the competency of Warren Stillings to sit as a juror in the case, and defendant's constitutional right to twelve impartial jurors are at issue. Respondent also argues that the allegations of misconduct are simply insufficient to support a finding of bias in fact. conduct by We find the following instances of speech and juror Stillings strongly tend to establish pre-deliberative bias: 1. The juror advocated a position of disregarding the law and instructions of the judge in favor of punishing the defendant for his drinking and drunk driving. 2. The juror passed written materials which advocate jurors usurp the power of the judge and legislature, and encourage people to "get on the jury" to effect this policy. 3. The juror did not deny the challenge that he must have perjured himself to sit on the jury. We find these allegations to be sufficient to establish denial of a fair and impartial jury. Defendant assigns as error interruptions and volunteer objections. the trial court's A trial judge must take care to insure that he does not abandon his role as impartial judge in favor of that of an advocate. People v. Adler (Colo. 1981), 629 P.2d 569, 573; State v. Brown (Ariz. 1979), 602 P.2d 478, 481. We have reviewed the entire record, and indeed the trial court interrupted witnesses, and ma.de objections for the county attorney. We must grant the trial courts sufficient latitude that they can fashion. conduct trials in an orderly and expeditious In this case we believe the trial court became involved but not to such an extent as to deny fundamental fairness and due process of law. Since this case must be retried, it is necessary to address issues regarding jury instructions on criminal mental state. Defendant contends instruction No. 10 fai1.s to accurately state Montana law on the effect intoxication may have on mental state, and was so objected to at trial. We agree. The instruction is taken from section 45-2-203, MCA: "An intoxicated person is criminally responsible for his conduct unless his intoxicated condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." However, the instruction omits the following additional sentence found in the statute: "An intoxicated or drugged condition may he taken into consideration in determining the existence of a mental state which is an element of the offense." It deleted is clear from the compiler's comments that sentence is not limited to cases of intoxication. the involuntary The commentator states: "Sentence two states the exception to the general rule to intoxication as a defense, by providing that where an offense requires a specific mental state, the intoxicated state of the offender may be considered as a factor in determining whether that required mental state has been established." Montana Code Annotated Annotations, 45-2-203, Title 45, Crimes, pg. 64. Since defendant's only defense was to the element of knowledge, and was based on inability to form that menta.1 state because of a combination of intoxication and head injury, failure to fully instruct the jury on this issue was prejudicial. We also find a related error in the following jury instruction. "To sustain the charge of LEAVING THE SCENE OF AN ACCIDENT INVOLVING PERSONAL INJURIES, the State must prove the following propositions: "First: That the Defendant was knowingly the driver of a vehicle involved in the accident in question; "Second: That the accident resulted in personal injuries to Don and Linda Russell; "Third: That the Defendant knowingly failed to remain at the scene to give information and render aid to the injured." This instruction sought to set forth the elements of the crime as defined by section 61-7-103, MCA, which provides as follows: "Accidents involving death or personal injuries. (1) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of 61-7-105. Every such stop shall be made without obstructing traffic more than is necessary. " (2) Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment for not less than 30 days or more than 1 year or by a fine of not less than $100 or more than $5,000 or both such fine and imprisonment. " (3) The division shall revoke the license or permit to drive of any resident and any nonresident operating privilege of any person so convicted for the period prescribed in 61-5-208." The instruction quoted above sought to delineate the elements of categories. the offense and divided those into three The trial court then sought to require knowledge of two elements but not a third. This cannot be done. Defendant argues that knowledge of personal injuries is required. Respondent takes the position that to hold that such knowledge is an element of the offense would, in the words of statute." the trial court, "make a mockery out of the The driver who leaves the scene of an accident may be foreclosing any opportunity to acquire such knowledge. Although Respondent's argument makes good Montana law leaves little room for interpretation. policy, Section 45-2-103, MCA provides in part: " (1) A person is not guilty of an offense, other than an offense which involves absolute liability, to each element described by unless, with respect - the statute defining the offense, he acts while having one of the mental states [purposely, knowingly, negligently]. . .. "(2) If the statute defining an offense prescribes a particular mental state with respect to the offense as a whole without distinguishing among the elements thereof, the prescribed mental state applies to each such element. " (emphasis added. ) Section 45-2-104 provides: "Absolute liability. A person may be guilty of an offense without having, as to each element thereof, one of the mental states [purposely, knowingly, or negligently] only if the offense is punishable by a fine not exceeding $500 and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described." Section 61-7-103, MCA under which defendant was charged, is clearly not an offense of absolute liability. An element of the offense is "an accident resulting in injury to or death of any person." Thus Montana. law clearly requires some mental state with respect to this element of the offense. In State v. Parish (Idaho 1957), 310 P.2d 1082, the Idaho court interpreted an identical "hit and run" statute, and held that knowledge of the accident and knowledge of the resulting injury to another were essential elements of the offense. "Knowledge on the part of the accused of the accident resulting in injury to another person does not require a showing by the state, by direct testimony, that the accused actually knew that the motor vehicle he was driving had struck some one. All of the facts and circumstances indicative of knowledge of such an accident may be considered by the jury in its determination of the fact of Id. knowledge." - at 1084. We court. agree with the rationale expressed by the Idaho Knowledge of personal injury or death can simply be inferred from the seriousness of the accident. Failure to r e q u i r e a showing o f knowledge w i t h r e s p e c t t o e a c h e l e m e n t was p r e j u d i c i a l e r r o r . Defendant objects to the court's trial failure to It is sufficient t o instruct i n s t r u c t on t r a u m a t i c a m n e s i a . t h a t d e f e n d a m t must h a v e a c t e d k n o w i n g l y , and t o d e f i n e t h i s mental s t a t e f o r t h e jury. Defendant inference failure of of confuse a assigns e r r o r t o an instruction unfavorable either we Although W e f i n d no e r r o r on t h i s i s s u e . do jury party not testimony to approve to produce of an be a allowing an drawn material instruction about t h e d e f e n d a n t ' s burden from witness. that in a the might criminal p r o c e e d i n g , w e f i n d no e r r o r g i v e n t h i s f i n a l s e n t e n c e o f t h e instruction: "The j u r y w i l l alwa-ys b e a r i n mind t h a t t h e law n e v e r imposes on a d e f e n d a n t i n a c r i m i n a l c a s e t h e burden or duty of c a l l i n g any w i t n e s s e s or producing any evidence." The t r i a l c o u r t i n v o l v e d i t s e l f i n t h e plea bargaining p r o c e s s by r e p r e s e n t i n g t o d e f e n d a n t ' s c o u n s e l t h a t t h e b e s t o f f e r o f s e n t e n c i n g was 10 d a y s i n j a i l a n d a f i n e o f $500. A f t e r r e j e c t i o n o f t h e p l e a b a r g a i n and t r i a l , d e f e n d a n t was s e n t e n c e d t o 30 d a y s and a f i n e o f $1,000. The c o u r t c l e a r l y i s n o t bound by t h e f i r s t o f f e r . Under the rule propounded by this Court Baldwin (Mont. 1 9 8 1 ) , 629 P.2d 222, 38 St.Rep. v. Tate must ( 1 9 8 2 ) , 196 Mont. "specifically increased sentence." point 248, out 639 P.2d the in S t a t e v. 882, and S t a t e 1149, a t r i a l j u d g e factors that justify the This r u l e w i l l apply t o t h e sentencing o f d e f e n d a n t on r e t r i a l s h o u l d d e f e n d a n t b e c o n v i c t e d . The c a s e i s remanded t o t h e D i s t r i c t Court t r i a l i n accordance with t h i s opinion. f o r a new We concur: a,m=JL-9 $ & .4& Chief Justice
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