*1 MONTANA, STATE OF Respondent, Plaintiff and v. STEELE,
DUSTIN
Appellant.
Defendant
No. 03-314.
Submitted on Briefs June
2004.
Decided
October
For Honorable Mike Montana General, Stutz, Helena; Attorney General, Robert Brant Assistant Light, County Attorney, Weber, County Deputy Cascade Susan Chief Attorney, Thompson, Deputy County Attorney, Joel Great Falls. Opinion
JUSTICE NELSON delivered the of the Court. (Steele) Jay appeals judgment Eighth Dustin ¶1 Court, County, denying Judicial motion for a District Cascade his mistrial. following appeal We address the issues on and affirm: 1. Did the motion for a District Court err in Steele’s
mistrial? 2. Did the District Court sufficient evidence before it to have
support officer? Steele’s conviction of assault on
FACTUAL AND PROCEDURAL BACKGROUND undisputed. Department The facts are The Great Falls Police drugs possession received information that Steele was in and firearms. information, police Based on this obtained a search warrant.
Howеver, armed, always due to the information that Steele police attempted get conduct Steele outside his residence order to Thus, peacefully. rapport the search an officer who had an established Steele, asking contacted Steele if he would meet the officer at a local restaurant. officers, including agreed meeting, After Steele several Baumann, They
Officer witnessed Steele flee from his residence. noticed running pants, attempting keep that Steele was with his hands falling pants. items from out of his Steele’s actions were indicative to Steele, police pursued that Steele was armed. Baumann upon him, pivoted coming within several feet of Steele slowed and reaching him time into toward while at same his waistband. point, At that Officer Baumann testified that he believed Steele safety acquiring targеt him as a and that he feared for his and his gunshot drop rang life. A then out and Officer Baumann saw Steele pistol. The discovered that Steele had himself in the officers later shot *3 calf. ground, after which a Baumann tackled Steele gun ground. Thereafter,
second fell to the officers found several used possession, including pipe other items in Steele’s a knife and a inhaling drugs. home, Upon their search of Steele’s the officers found three cameras, scanner, police baggies
surveillance two residue, methamphetamine, foil marks and aluminum with burn marijuana, weapons. and several other offenses, felony including a charged eight separate counts, charge. eight Of the Steele conceded assault on a officer Regarding remaining guilty at trial that he was of seven of them. felony charge, received contested assault on a offiсer testimony, to them for deliberation. and the case was submitted deliberations, foreperson During became deadlocked. The situation, their after which time the bailiff testified advised the bailiff of to what followed. 8:15 and 8:30. my knowledge approximately
Best of it was between door, door, foreperson There was a knock on the answered said, basically, hung. split, are we are working [the I inside. She you keep on it. went I said neеd they split. pushed paper I foreperson] tried to show me where I the Court has away. anything I to see like that. said didn’t want me, mention, until at has made that we will be here instructed midnight. least keep working on it. you ground
I to find a common said need you know, As, my experience past, judges, in the most has been I this are-you keep deliberating on such matters. have done will past problem in the and I have never had a with it. above-quoted in the fаshion outside the The bailiff advised parties judge’s approval. Upon learning presence ofthe and without occurrence, motion, In of this Steele moved for a mistrial. judge stated: looking rights prejudiced [whether at that Steele’s were actions], although the actions of the are not what bailiff preferred here, they the Court would have would have occurred exactly going were Iwhat was to instruct the within moments ofthe timе that I was advised there was a motion that was to be made.
And it was the Court’s full intent to advise this go They back and continue were to to deliberate. were to do every that in effort to reach a verdict in this matter. Court, reviewing it, everything light
So after in front of and in jury exactly of the fact that the Court would have instructed this did, although I, again, condoning what the am not what has here, occurred I what have to look at is or not the whether prejudiced defendant’s been as a result of it. light my give full intent to this the instruction that deliberate,
had to continue to the Court cannot find that substantially prejudiced light defendant has been of this. appeals Steele now the District Court’s denial of his motion for a mistrial.
STANDARD OF REVIEW grant We review a district court’s or denial of a motion for a mistrial to determine whether the district court its discretion. abused *4 14, 1279, Kennedy, 53, 14, State MT v. 85 P.3d ¶ ¶ 14. ¶
DISCUSSION Did. denying the District Court err Steele’s motion a mistrial? argues responded Steele that “the bailiff not have to the
jury,” province as is the Court-not the bailiff-to “[i]t [District] jury’s so, By doing argues answer the Steele that “the bailiff concerns.” parties parties’ opportunity denied the and the counsel the to consult Court, right parties the is the under” 46- [District] which have § 16-503(2), response argues MCA. In that the bailiffs jury, namely ground,” the that needed find a common “to law, Montana, jurors required to “[i]n violated Montana since are not ground.” find common that Steele contends bailiffs directive basis, impermissible charge.” “an on that constituted ‘Allen’ argues that his convictions should have been vacated. (the State) arguing responds The State of Montana first that vacated, that his convictions should have “Steele does not been distinguish conceded at that he between those counts his counsel trial such, committed, single “[s]ince and the count he contested at trial.” As jury’s verdict on the uncontested counts would have been unaffected conduct, a mistrial on those counts would not bailiffs Therefore, impartial argues, have denied him a fair and trial.” the State appropriate regarding “the district denial Steele’s motion court’s the uncontested counts.” Regarding jury, the bailiffs statements to the the State contends “[tjhere 46-16-503(2), MCA, case,” “inapplicable
that
is
to this
is no
§
testimony
suggеstion
jurors disagreed
about
or desired
law,
trigger
point
instruction
on a
the two situations
Further,
argues
“nothing in
applicability of the statute.”
the State
minority
following
coercing
juror
this case
into
‘could
construed
”
majority,’
that “the bailiff ... did not know if there was
jurors
split, having refused their
view or how the
Rather,
attempts
provide
split.”
the State contends
substance of the
statements
“is consistent with the district
juries,”
at issue in
court’s advice to its
and is similar to
stаtement
(1986),
George
v.
Bailiffs Actions 46-16-503(2), MCA, Section states: deliberation, any After retired for if there has jurors if the disagreement among as to the cause, they any point arising in the desire to be informed on of law notify keep together, them who shall appointed shall the officer
209
notify
requested may
given, in
then
the court. The information
court,
parties.
the discretion of the
after consultation with the
678,
(1976),
193,
held
In State v. Herron
545 P.2d
jury
that the communications between the
and the court via the bailiff
95-1913(d),
(1947),
attorney
violated then
RCM
as “defendant’s
§
present
way
protect
client
the
not notified nor
and had no
to
from
Herron,
jury’s
198,
confusion.”
and to after the told the bailiff that Ultimately, deadlocked. convicted Steele of assault on a However, Herron, officer. unlike the bailiff in the bailiff here did not Rather, jury. judge stated, misadvise the condoning latеr while not actions, that she would have advised the of the same. disagree any here did not as to of the received, law, nor did regarding desire information as the 46-16-503(2), MCA, did in Herron. triggered, was not and the § District Court did not err in Steele’s motion for a mistrial on that basis. While we do not conclude that bailiffs comments to the here,
require on the facts it reversal we also want to make clear that we not prerogative do condone the bailiffs actions. It is not within the any judge-to give court officer-other than the trial instructions deliberations, regarding seemingly its however innocuous those might apparently practice be. The bailiff here made it a to make similar juries-he having past.” comments to other testified to “done it in the All say lucky; upon we can is that this he it bailiff is next time takes provide gratuitous jury, might up himself to advice to a trial he wind costing taxpayers retrying thousands оf dollars in the case. We encourage judges specifically the trial of this state to court instruct employees appropriate officers and limits of their duties when dealing juries. with trial
Allen Violation
at issue in State v. Randall
(1960),
instruction
the United States
was similar to
instruction
in Allen v. United States
Supreme
approved
Court
U.S.
others acquittal, minority arguments others if the are for ... they may ought seriously whether not consider themselves ask *6 judgment, concurred or alter the correctness of their which is not associates, by they and discuss the in most of those with whom are sufficiency carry to weight or of that evidence which fails in conviction the minds of their fellows.
Randall,
540-41,
P.2d at 1057.
It is not in line with our to by majority jurors. contrary a view to that entertained Randall, P.2d at 353 1058. an Allen Randall addressing we also considered Without 377, 711 George P.2d State v. argument
instruction George, by judge the was not language In held that the used rather, instruction, and, with another Allen-type an was consistent verdict, jury’s written given. reсeiving after the Specifically, instruction guilty of the defendant judge jurors that ten had found noticed traffic having adjudged been an habitual operating a motor after vehicle offender, guilty. judge read jurors found him not while two had pointed then out to the that verdict into the record and other, guilty or verdict, way “one required to reach a unanimous get a possible if it to judge noted that guilty.” not George, verdict, judge like to see one.” unаnimous “would 380-82, P.2d at at 1381-82. have the did not holding such an instruction Allen-type instruction, judge
inevitable effect of an
we noted that
being put
clearly
jurors
pressure
indicated to the
that no
on them
verdict,
judge “merely asked that
to return a unanimous
and that the
” George,
room and deliberate ‘for awhile.’
return to
382-83,
Mont. at
and to after the advised him judge-and аlthough not Although was deadlocked. not instructions, judge-these George, like those in did not condoned attempt pressure jurors, minority did nor assert jurors change, positions that their as did the instruction at issue Therefore, “merely Randall. we conclude these instructions deliberating, asked” the to continue and the District Court did not err in Steele’s motion for a mistrial on that basis. 2. Did the District Court have sufficient evidence before it support Steele’s conviction peace of assault on a officer? argues himfor to have committed the offense of assault officer, bodily on a Officer Baumann must have feared serious injury by And, most, weapon. testimony use of a Officer Baumann’s “supports bodily injury by that he contention feared serious ‘what ” reasonably appeared weapon.’ such, to be a As “Officer Baumann’s not sufficient basis for a rational trier of fact to have found that Mr. Steele caused a reasonable ” apprehension injury ‘by weapon.’ use of a Steele’s conviction charge of assault on a officer should be vacated and the *7 dismissed. “[wjhile require That State
¶32 Montana law does not actually Officer perceive weapon by Bauman[n] to feel threatened it, perceive in this he did weapon case the moment he heard Steel such, fire beyond “[a] it.” As rationale triеr of fact could have found a weapon reasonable doubt that when Steele fired his concealed as approached” him, point Bauman[n] at that Steele violated 45-5- § 210(l)(b), MCA. 45-5-210(l)(b), MCA, person Section that “[a] states commits judicial person
the offense assault on a if the of officer or officer purposely knowingly apprehension causes ... reasonable of serious bodily injury judicial weapon.” in a оfficer or officer of a A use instrument, article, that, weapon defined “an is or substance regardless function, readily capable being to primary of its of used 45-2-101(78), A produce bodily injury.” death or serious MCA. Section person actually weapon by the use of need not see a to feel threatened 215, 23; (1988), State weapon. State v. Misner 234 Mont. 763 P.2d 212 33, P.2d 86. Hagberg
v.
after
county welfare office
Misner,
left
the defendant
that had
welfare officer—an occurrence
becoming agitated with the
pickup. The welfare
walked to his
frequently happened-and
before
reaching
right
his
get
pickup,
into his
then watched him
officer
“stood there
point,
At that
the welfare officer
grab
hand to
his rifle.
go
seconds,”
“going
to
off
that the defendant
shock for a few
scared
Thereafter,
something.”
the defendant closed
deep
end and do
counts
charged with two
pickup and drove off. Misner was
door of his
216-18,
Misner,
hand gun. might have that Steele Steele, the officer believed knowledge of *8 him while Steele, turn he saw Steele approached the officer towards As raising from his waistband. The officer at the same time his arms target. thought acquiring this moment that Steele was him as a shot, drop he Officer Baumann then heard a after whiсh saw Steele holding During the short pistol that Steele was behind his back. seeing drop pistol, hearing gunshot interval between and Steele physical safety Officer Baumann testified that he was worried about his unarmed, Thinking and was in fear of his life. Steele was thereafter fall, during ground, tackled him to the and another Bowman clutching dropped pistol that Steele was in his front waistband ground. Hagberg, Similar to both victims’ Misner and safety
Officer Baumann testified thаt he was worried about his and was Hagberg, like the fear of his fife. officer’s observations attempting something noticed that Officer Baumann Steele was hold fleeing, and, upon stopping, in his waistband while rose his hand from his waistband in a motion indicative to Officer Baumann of Steele Further, Steele, targeting him. Officer Baumann knew and from knowledge gun aware that might person. have a on his knowledge observations, hold, Based on Officer Baumann’s Hаgberg, actually we did Misner and in that Officer Baumann did not pistol have to see the person had on his in order to feel Therefore, pistol. threatened use of the we hold that sufficient support evidence existed to Steele’s conviction of assault on a officer. points concurrence, As Justice Cotter out in her
advised, prior deliberations, to their should not surrender opinions regarding guilt their honest the innocencе or argument Steele. “[t]he dissent’s failed to juror give up mention that no opinion his or her honest concerning guilt Steele,” misplaced. or innocence of Mr. instructions, had with them in the room all of the admitted including quoted Instruction No. Justice Cotter in her Requiring repeat concurrence. the bailiff to this instruction-as effect, seemingly propounds-in take dissent asks bailiff to actions clearly which this Court and the District Court stated did not Indeed, advising condone. the dissent first faults the bailiff for Yet, goes midnight.” that “we will be here until at the dissent least regarding failing to fault the bailiff to advise the further their opinions guilt. honest of Steele’s innocence or midnight” problem As to the with the bailiffs “here until at least statement, specifically has the bailiff testified “the Court me, mention, until at least instructed or has made that we will be here *9 midnight.” Nowhere in this statement did the bailiff “indicate”-as the hung jury dissent “there could not be a another least —that quite possibly three and one-half hours and not even then.” Rather-and simply-the they jury bailiff advised the of the time frame under which operating particular day. were on that Finally, citing George, “[i]n the dissent claims that direct ¶43 applicable precedent, jury pressured contradiction to was into reaching Interestingly, agreement George, a verdict.” held we jury verdict, that, pressured reaching given that the was nоt into a George, was aware that should not surrender their opinions majority pressure returning honest under unanimous verdict. See 27-29. ¶¶ Affirmed. GRAY,
CHIEF JUSTICE JUSTICES REGNIER and RICE concur. COTTER concurs. JUSTICE separately I concur in I write to add that the the Court’s decision.
jury instructions, Court, clearly the District set forth the respect juror right correct rule with of a to hold firm in his or her minority opinion. juror The was that told in Instruction No. “no opinion weight should surrender an honest as to the or effeсt of guilt evidence or as to the innocence or of the Defendant because the otherwise, purpose returning an feels or for the prevent unanimous verdict or to a mistrial.” When faced with a motion George, for mistrial in State v. the submission to the of a found significant. George (1986), similar instruction State v. 1379, 1382-83. I here, significant find the to be same
therefore concur. dissenting.
JUSTICE WARNER I that the actions must dissent from the Court’s conclusion bailiffs require do not that officer be conviсtion of assault reversed. error The actions of the bailiff are stated at above. The first ¶ telling jurors would be “here
made bailiff was midnight.” only until at least This indicated not should deliberate, hung jury there not for at continue to but that could even then. possibly least another three and one-half hours and not Then, say find a on to needed to went required it there ground. common This is a direct statement is, juror jurors going to have be a unanimous verdict. Thаt some or juror to mention that no change their vote. The bailiff failed concerning guilt or innocence of give up opinion his or her honest just reach a unanimous verdict. Mr. Steele coercing The extraneous instruction had the effect of minority juror following majority. into In direct applicable pressured into precedent, contradiction to reaching George, a verdict. 711 P.2d at on a officer conviction should be reversed and assault I remanded for a new trial. dissent from our failure to do so. joins foregoing LEAPHART
JUSTICE dissent.