STATE v GEORGE
Annotate this Case
Download PDF
No. 85-374 I N THE SUPREME COURT OF THE STATE OF MONTANA 1985 STATE OF MONTANA, P l a i n t i f f and Respondent, -vsGERALD A A GEORGE, L N Defendant and Appellant. APPEAL FROM: District Court o f t h e F i r s t J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f Lewis & C l a r k , The H o n o r a b l e Henry L o b l e , J u d g e p r e s i d i n g . COUNSEL OF RECORD: For Appellant: Cannon & Sheehy; Edmund F. H e l e n a , Montana Sheehy, J r . , Helena, For Respondent : Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana Dorothy McCarter, A s s t . A t t y . G e n e r a l , Helena Mike McGrath, County A t t o r n e y , H e l e n a , Montana J o e S e i f e r t , Deputy County A t t o r n e y , H e l e n a S u b m i t t e d on B r i e f s : O c t . Decided: Filed: Clerk 1 0 , 1985 J a n u a r y 7 , 1986 Mr. J u s t i c e Fred J. Weber d e l i v e r e d t h e Opinion o f t h e C o u r t . Defendant was tried by the Lewis and Clark County D i s t r i c t Court on a c h a r g e o f o p e r a t i n g a motor v e h i c l e a f t e r h a v i n g been adjudged an h a b i t u a l t r a f f i c o f f e n d e r . appeals h i s conviction. Defendant W a f f i r m t h e D i s t r i c t Court. e The i s s u e s on a p p e a l a r e : Did t h e D i s t r i c t C o u r t e r r i n d e n y i n g d e f e n d a n t ' s 1. motion f o r a m i s t r i a l ? Did 2. the District Court err in placing upon the d e f e n d a n t t h e burden o f p r o v i n g an e x t r e m e emergency i n o r d e r t o be found n o t g u i l t y under 3. ยง 61-11-213, MCA? Was d e f e n d a n t ' s c o n v i c t i o n s u p p o r t e d by s u f f i c i e n t evidence? On November 1 0 , 1982, d e f e n d a n t was adjudged a n h a b i t u a l t r a f f i c o f f e n d e r and h i s d r i v i n g p r i v i l e g e s were revoked. December 9, O n 1984, d e f e n d a n t and h i s g i r l f r i e n d went t o a p a r t y a t t h e home o f a r e l a t i v e i n L e w i s and C l a r k County. D e f e n d a n t ' s p a r e n t s were una.ble t o go and a l l o w e d d e f e n d a n t and h i s companion t o u s e t h e c a r , w i t h t h e u n d e r s t a n d i n g t h a t s h e was t o d r i v e t h e c a r . Defendant's f a t h e r t e s t i f i e d he d i d n o t a l l o w t h e d e f e n d a n t t o d r i v e b e c a u s e he had l o s t h i s driving privileges. Defendant l e f t the party, t e s t i f i e d t h a t when h e and h i s g i r l h i s g i r l f r i e n d drove. However, friend defendant t e s t i f i e d t h a t when he o b s e r v e d t h a t s h e was s o i n t o x i c a t e d a s t o be u n a b l e t o keep from weaving from s i d e t o s i d e , he o r d e r e d h e r t o p u l l o v e r and g o t b e h i n d t h e wheel. Defendant f u r t h e r t e s t i f i e d t h a t he would n o t have g o t t e n behind t h e wheel drive. if his g i r l f r i e n d had n o t been t o o i n t o x i c a t e d t o He also testified t h a t h e f e l t t h a t l i f e , l i m b and p r o p e r t y were i n d a n g e r w i t h h e r b e h i n d t h e wheel. Defendant drove the car into Helena and was stopped by police a short distance from his home. The police officer testified that she observed the defendant's car cross the center line and watched it weave in its own lane of traffic. When the officer stopped the car, she gave defendant the field sobriety test which he passed. The police officer then checked with the dispatcher and determined that defendant's license had been suspended. She arrested him for operating a motor vehicle while being an habitual traffic offender. The police officer also gave the defendant's companion a field sobriety test to determine if defendant's girl friend could drive the vehicle home, but she did not pass the test. Another police officer drove her home and left the vehicle there. The State emphasizes that the evidence demonstrates that defendant had several opportunities to call a cab or his father for a ride home, but did not do so. In addition, defendant passed at least two establishments where he could have used a telephone to call for a ride. The State points out that defendant told the police officer that his girl friend could drive the car to his father's house, but failed to mention that he was driving because his companion was too drunk to drive. Followi.ng a jury trial and conviction, the defendant appeals. I Did the District Court err in denying defendant's motion for a mistrial? Following the trial, the giving of instructions and oral argument, the case was submitted to the jury at approximately 3 :10 p.m. At 9 :15 p.m., with a written verdict. the jury returned to the courtroom The verdict, which was signed by the foreperson, showed that ten jurors found the defendant guilty of operating a motor vehicle after having been adjudged an habitual traffic offender. The verdict also showed that two jurors found him not guilty. The judge examined the verdict and read the verdict into the record. that the jury be polled. The State requested Counsel for the defendant objected to the jury being polled and moved for a mistrial on the basis that there was a hung jury, as a result of the 10-2 vote. The District Court then pointed out to the jury that they were required to reach a unanimous verdict in a criminal case if that was possible. He inquired whether they might return to the jury room, deliberate further and cone up with a unanimous verdict. The foreperson indicated that he did not think it was possible, but two other jurors thought that it was possible and that they should try again. At that point, defense counsel pointed out his concern that pressure to reach a unanimous verdict put on the two individuals who voted not guilty. Defense counsel argued that it was improper to put any pressure upon those two individuals and that he thought there had been a mistrial. He also pointed out that typically no one should know what the vote of the jury had been and that it was improper for the jury now to go back to try to reach a unanimous verdict. In response, the district judge said to the jury: THE COURT: I don't think we should have any more discussion on this before the jury. Ladies and gentlemen, I am going to ask you to return to your juryroom and spend a reasonable amount of time trying to reach a verdict which is unanimous one way or the other, guilty or not guilty. So you will be remanded to the custody of the bailiff to return to your juryroom and see whether you can, within a reasonable time, achieve a unanimous verdict. As far as anyone having any pressure put on them, if you will read the instructions, you will see very clearly the duties of a juror in that regard as to how he is to react to the opinions of the other jurors. I t h i n k it i s q u i t e c l e a r a s t o what a j u r o r i s t o do. I d o n ' t t h i n k a n y o f you s h o u l d t h i n k any p r e s s u r e i s b e i n g p u t on you. That i s n o t t h e purpose o f t h e Court. However, I do want t o p o i n t o u t t o you t h a t a l o t o f t i m e and e f f o r t h a s been p u t i n on t h i s and w e h a v e no conclusion. I f it i s p o s s i b l e t o g e t o n e , I would D o e s n ' t mean you h a v e t o come up l i k e t o see o n e . w i t h one. A l l right. W i l l you p l e a s e r e t u r n t o y o u r juryroom and d e l i b e r a t e f o r a w h i l e and see i f you c a n come up w i t h a v e r d i c t which i s unanimous i n n a t u r e , and w e w i l l g e t you a n o t h e r v e r d i c t form C o u r t i s i n recess. t o use. A l l r i g h t . A f t e r t h e j u r y had d e p a r t e d t o t h e j u r y room, c o u n s e l f o r t h e defendant again objected t o the jury being s e n t ba.ck and r e q u e s t e d t h a t h i s motion f o r a m i s t r i a l be g r a n t e d . The r e c o r d shows t h a t s h o r t l y a f t e r 10:OO p.m., t h e jury r e t u r n e d t o t h e c o u r t r o o m w i t h a unanimous v e r d i c t f i n d i n g t h e defendant g u i l t y a s charged. The j u r y was d i s m i s s e d a t D e f e n d a n t r e l i e s upon B r a s f i e l d v . U n i t e d S t a t e s ( 1 9 2 6 ) , 272 U.S. 448, present case. as authority In Brasfield, for reversible error in the t h e U n i t e d S t a t e Supreme C o u r t c o n s i d e r e d t h e s i t u a t i o n i n which a j u r y had f a i l e d t o a g r e e upon a v e r d i c t a . f t e r some h o u r s o f d e l i b e r a t i o n . court had inquired numerically. to how the jury was divided The U n i t e d S t a t e s Supreme C o u r t h e l d t h a t " t h e inquiry i t s e l f Brasfield, as The t r i a l should be regarded a s ground f o r r e v e r s a l . " 272 U.S. at 450. The C o u r t r e a s o n e d t h a t the i n q u i r y s e r v e s no u s e f u l p u r p o s e t h a t c a n n o t b e o b t a i n e d by questions not requiring the jury extent of the division, bear an Defendant improper argues and that t o r e v e a l t h e n a t u r e and and t h a t s u c h a n i n q u i r y b r i n g s t o coercive in the influence present upon case the the jury. court was a d v i s e d by t h e j u r y how it was n u m e r i c a l l y d i v i d e d w i t h t h e same a d v e r s e r e s u l t . Defendant a l s o r e f e r s 1 9 7 7 ) , 257 N.W.2d t o People v. 751 and S t a t e v . R a n d a l l Curry (Mich. App. ( 1 9 6 0 ) , 137 Mont. 534, 353 P.2d 1-054. Both of these cases addressed the so-called Allen instruction, which instructed the jury that each juror ought opinions; if to a much pa-y proper respect to the other's larger number of the panel is for conviction, dissenting jurors should consider whether the doubt in their minds was a reasonable one; and, on the other hand, if the majority is for acquittal, the minority ought seriously to ask themselves whether they may not consider the correctness of and alter their judgments. The courts in both cases condemned the use of the instruction. The courts held that the inevitable effect of Allen-type instructions is to suggest to minority jurors that they should surrender their own convictions and follow the majority. In given. the present case, no Allen-type instruction was To the contrary, jury instruction 5 included the following pertinent paragraphs: The law requires the jury verdict in this case to be unanimous. Thus, all twelve of your number must agree in order to reach a verdict upon the charge contained in the Information whether the verdict be guilty or not guilty. The jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment. This means that you may fully and fairly discuss among yourselves all of the evidence you have seen and heard in this courtroom about this case together with the law which relates to this case as contained in the Judge's instructions. In the course of deliberations, a juror has a right to re-examine his own views and change his opinion if he is convinced to do so by fair and honest discussion by any member or members of the jury, based upon the evidence the jury saw and heard in the trial and the law as given you in these instruction. However, no juror should surrender his honest opinion as to the weight or effect of evidence or as to the innocence o r ' guilt of the defendant because the majority of the jury feels otherwise, or for the purpose of returning verdict or to prevent a mistrial. an unanimous The court here did not make a prohibited inquiry of the jury as to how it was divided numerically. The information was furnished by the jury to the court by a written verdict, which disclosed the 10-2 vote notwithstanding the instruction requiring a unanimous verdict. None the characteristics of instructions an Allen this case instruction which had the could be construed as coercing a minority juror into following the majority. correct The instructions as given, clearly set forth the rule that no juror should surrender his honest opinion because the majority of the jury feels otherwise, or for the purpose of returning a unanimous verdict or to prevent a mistrial. At the time he returned the jury to the jury room, the district judge emphasized that as far as pressure is concerned, the jury should read the instructions, which will clearly describe the duties of the jury and instruct them as to how a juror is to react to the opinions of other jurors. The District Court further emphasized that no juror should think any pressure was being put upon them him. The defendant argues that by sending the jury back, the court committed reversible error by discouraging the dissenters from taking a view contrary to the majority. Had that been done, we would reverse the conviction without hesitation. standards However, the instructions clearly set forth the to deliberating. be applied by each of the jurors in Those instructions were strengthened by the comments of the District Court. While the District Court did encourage their attempt to secure a unanimous verdict, based upon their initial failure to do so, he did indicate clearly that none of them should feel any pressure was being put upon them. He merely asked that they return to the jury room and deliberate "for awhile" and see if they could come up with a unanimous verdict. In construing Brasfield, the Ninth Circuit Court of Appeals recently stated in Locks v. Sumner (9th Cir. 1983) , 703 F.2d 403, that a defendant's right to an impartial jury and fair trial may be infringed if a trial judge's inquiry into the jury's balloting would be likely to coerce certain jurors into relinquishing their views in favor of reaching a una.nimous decision. To determine whether such coercion of the jury's deliberative process occurred, the inquiry by the judge must be viewed in light of the context in which it was made, not in isolation. Locks, 703 F.2d at 406-07. After a careful review of the record and the manner in which the jury disclosed their initial vote, we conclude that the District Court was correct in refusing to grant a mistrial because of the initial verdict of 10 guilty, 2 not guilty. Did the District Court err in placing upon the defendant the burden of proving an extreme emergency in order to be found not guilty under S 61-11-213, MCA? Section 61-11-213, MCA, the habitual traffic offender statute under wh.ich defendant was convicted, reads follows: Habitual traffic offender operating motor vehicle guilty of misdemeanor. Any person found to be an habitual traffic offender under this part, and who thereafter operates a motor vehicle in this state while the order of the court ~rohibitins such operation remains in effect, shali be guilt$ of a misdemeanor, and upon conviction thereof shall be imprisoned for a period of not more than 1 year or fined. not more than $1,000, or both. However, in cases wherein the prohibited operation of a motor vehicle by an habitual traffic offender is necessitated in a situation of extreme emergency in as o r d e r t o s a v e l i f e , limb, o r p r o p e r t y , he s h a l l n o t be deemed g u i l t y o f a v i o l a t i o n under t h i s p a r t . The d e f e n d a n t was u n a b l e t o c i t e any c a s e a u t h o r i t y on t h e question here. Defendant p o i n t s o u t t h a t i n most s t a t e s , t h e q u e s t i o n o f o p e r a t i o n o f a motor v e h i c l e by an h a b i t u a l offender in an extreme emergency is a question to be considered a t sentencing, r a t h e r than t o determine g u i l t o r innocence a t t h e t i m e o f t r i a l . Defendant a r g u e s t h a t , under t h i s p e c u l i a r s t a t u t o r y p r o v i s i o n , t h e S t a t e had t h e burden o f p r o v i n g beyond a r e a s o n a b l e d o u b t t h a t t h e d e f e n d a n t was not - f a c i n g an extreme emergency which j u s t i f i e d h i s d r i v i n g the vehicle. At d e f e n d a n t moved to the close dismiss of on the the prosecution's ground that the case, State f a i l e d t o prove t h a t d e f e n d a n t was n o t f a c i n g such a n e x t r e m e emergency. The D i s t r i c t Court d e n i e d t h a t motion. The d e f e n d a n t a r g u e s t h a t i f a p e r s o n i s d r i v i n g a motor v e h i c l e i n an extreme emergency, t h e r e i s no o f f e n s e . He t h e r e f o r e a r g u e s t h a t t h e q u e s t i o n o f a n extreme emergency should not be c o n s i d e r e d a s an a f f i r m a t i v e d e f e n s e t o be proved by t h e d e f e n d a n t by a p r e p o n d e r a n c e o f t h e e v i d e n c e . I n making h i s argument, d e f e n d a n t t e n d s t o i g n o r e t h a t portion of $ 61-11-213, MCA, which p r o v i d e s that a person s h a l l n o t be deemed g u i l t y o f a v i o l a t i o n i n c a s e s where t h e p r o h i b i t e d o p e r a t i o n o f t h e motor v e h i c l e " i s n e c e s s i t a t e d i n a s i t u a t i o n o f extreme emergency i n o r d e r t o s a v e l i f e , l i m b , o r property." W e have c a r e f u l l y reviewed t h e t e s t i m o n y on t h e p a r t o f d e f e n d a n t and h i s f a t h e r , the defendant's behalf. the only witnesses t o t e s t i f y i n The evidence fails to show an extreme emergency r e q u i r i n g t h e d e f e n d a n t t o d r i v e i n o r d e r t o save l i f e , limb, o r property. Neither t h e defendant nor h i s a l l e g e d l y i n e b r i a t e d companion w e r e r e q u i r e d t o d r i v e a t all. They c o u l d have chosen t o walk. State, A s p o i n t e d o u t by t h e t h e d e f e n d a n t c o u l d have c a l l e d f o r a c a b o r c a l l e d f o r h i s f a t h e r t o come p i c k them up. H e c h o s e t o do n e i t h e r . Defendant's his testimony d r i v i n g was t h a t drive the car commendable condition, drive. showed i t was n o t because that he that basic reason s a f e t o have h i s g i r l s h e was stopped inebriated. her from in t h e r e was no r e q u i r e m e n t a t t h a t p o i n t that t h a t he Defendant h a s f a i l e d t o p r o v e t h a t h e comes w i t h i n t h e r e q u i r e m e n t s o f S 61-11-213, MCA. i s t r u e t h a t t h e S t a t e i s r e q u i r e d t o prove every It e l e m e n t o f an o f f e n s e beyond a r e a s o n a b l e d o u b t . v. friend it was While driving for Patten ( 1 9 7 9 ) , 183 Mont. pointed. o u t St.Rep. in 727, S t a t e v. the 417, 600 P.2d Gratzer State is 194. See S t a t e However, ( 1 9 8 4 ) , 682 P.2d not required to 141, prove as 41 the n o n e x i s t e n c e o f e v e r y f a c t t h a t may c o n s t i t u t e an e x c u l p a t o r y circumstance a f f e c t i n g t h e g u i l t o f t h e defendant. The State points 5 61-11-213, MCA, out that t h e emergency p r o v i s i o n i s n o t an element o f t h e o f f e n s e . defense t o t h e charge. of It i s a I t i s of course appropriate t h a t t h e burden o f p r o o f o f t h a t extreme emergency b e p l a c e d upon t h e defendant. Defenda.nt p r e s e n t s two a d d i t i o n a l l e g a l t h e o r i e s on t h i s i s s u e , n e i t h e r o f which was p r e s e n t e d a t t h e d i s t r i c t c o u r t level. W w i l l n o t c o n s i d e r such arguments r a i s e d f o r t h e e f i r s t time on a p p e a l . Vogel v . Gibson's (Mont. 1 9 8 4 ) , 681 P.2d 40, 4 2 , 4 1 St.Rep. We burden hold that the District upon t h e d e f e n d a n t o f d e f i n e d under S 61-11-213, MCA. Court Discount Centers 874, 876-77. properly placed the p r o v i n g extreme emergency a s III Was defendant's conviction supported by sufficient evidence ? On this issue, defendant presents an argument sirnil-ar to that on the preceding issue. He contends that there was a sudden emergency which required him to drive. Defendant argues that he did not realize his girl friend was too intoxicated to drive until after they had driven some distance, and it therefore became appropriate for him to drive. As previously stated, defendant has failed to prove that it was necessary that he drive to save life, limb or property in an extreme emergency. proof requirements of the statute. The State clearly met the The defendant failed to prove by a preponderance of the evidence the existence of an extreme emergency, defined by the statute. We hold that the verdict was supported by sufficient evidence. The judgment of the District Court is affirmed. /* We concur: /
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
