                                 No. 8 8 - 2 5 8
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1988




STATE OF MONTANA,
                  Plaintiff and Respondent,
          -vs-
WALTER HARRY DeGRAW,
                  Defendant and Appellant.




APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and for the County of Stillwater,
                  The Fonorable G. Todd Baugh, Judge presiding.
COUNSEIJ OF RECORD:
          For Appellant:
                  Jeffrey T. Renz, Billings, Montana

          For Respondent :

                  Hon. Mike Greely, Attorney General, Helena, Montana
                  Kathy Seel-ey,Asst. Atty. General, Helena
                  C. Ed Laws, County Attorney, Columbus, Montana
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                  III                 Submitted on Briefs:     Sept. 15, 1 9 8 8

                                         Decided:   December 2, 1 9 8 8
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                                                                   -
                                     Clerk
Mr. Justice William E. Hunt, Sr. , del-ivered the Opinion of
the Court.


     Walter Harry DeGraw, the defendant, appeals the decision
of the District Court of the Thirteenth Judicial District,
Stillwater County, denying defendant's motion for a new trial
or, in the alternative, a mistrial due to jury misconduct.
We affirm in part, reverse in part, and remand for a new
trial.
     DeGraw raises the following two issues on appeal:
     (1) Whether the District Court erred in refusing to
grant a new trial or declare a mistrial when, during the
trial, the jury foreman learned of defendant's alleged
criminal record.
     (2)   Whether the District Court erred in refusing to
give defendant's proposed instruction no. 4, instructing that
if two conclusions can be reasonably drawn from the
testimony, one favoring the defendant's innocence and the
other tending to establish his guilt, the jury should adopt
the conclusion of innocence.
     On December 8, 1986, DeGraw, the defendant, was charged
by information under 5 45-5-202, MCA, with two counts of
felony assault.   DeGraw's case proceeded to trial. before a
jury on Count I on July 27, 1987. The State dismissed Count
I1 for lack of evidence. The jury returned a verdict on July
29, 1987, finding DeGraw guilty of felony assault.
     Approximately a week after the verdict, Pierce, a juror
who served on DeGraw's jury, contacted defense counsel and
stated that Young, the foreman for the DeGraw jury, informed
the jurors d-uring deliberations that he had reliable
information from the sheriff's department. Upon learning of
possible jurv misconduct, DeGraw mo~7ed for a new trja,. The
District Court held an evidentiary hearing on the motion on
December 15, 1987.
     Foreman Young testified at the hearing that on the day
before the jury deliberated, he had been a third party to a
conversation in which a cook at a restaurant stated that
DeGraw "had a criminal record as long as your arm." Young
also testified that during the deliberations the jurors "were
conversing about the credibility of Mr. DeGraw, and I said I
had heard some things about Mr. DeGraw ..  . . " Juror Pierce
testified that foreman Young told the jurors before they
started deliberations and before the vote was taken that "he
had reliable information from the sheriff's department . . .
about Mr. DeGraw [and] did we want to hear it    . . . .   "   The
jury declined to hear the offered information.
     The District Court denied DeGraw's motion for a mistrial
or, in the alternative, a new trial, and subsequently
sentenced DeGraw to seven years imprisonment for the offense
of felony assault and two years for the use of a firearm
during the commission of the offense.       The District Court
suspended seven years of the sentence.      DeGraw appealed.
     The first issue raised on appeal is whether the District
Court erred in refusing to grant a new trial or declare a
mistrial when, during the trial, the jury foreman learned of
DeGraw's alleged criminal record.
     A defendant's right to a fair and impartial jury is
guaranteed by both our state and federal constitutions. 1972
Mont. Const. Art. 11,         24; U.S.    Const. Amend. VI.
Consequently, jury misconduct tending to injure the defendant
creates a presumption of prejudice to the defendant.      The
presumption, however, is not absolute and may be rebutted by
evidence showing that prejudice or injury did not occur.
State v. Murray (Mont. 1987), 741 P.2d 759, 762, 44 St.Rep.
1394, 1397; State v. Eagan (1978), 178 Mont. 67, 79, 582 ~ . 2 d
1195, 1202.
     Upon reviewing whether a district court erroneously
denied a defendant's motion for a new trial based on jury
misconduct, a district court's ruling is given considerable
weight.   Eaqan, 178 Mont. at 76, 582 P.2d at 1200.     This
Court, however, is in as good a position as a district court
to make this determination when no factual disputes exist as
to a juror's conduct. Eagan, 178 Mont. at 76, 582 P.2d at
1200 (citing People v. Brown (1976), 61 Cal.App.3d 476, 132
Cal.Rptr. 217, 220-21).   In this case, no dispute exists as
to Young's conduct. He admitted that he was a third party to
a conversation in which a person stated that DeGraw "had a
criminal record as long as your arm." He also admitted that,
before the deliberations began, he informed the jurors that
he had heard some things about DeGraw.       This Court may
therefore conduct an independent review after examining the
whole record.   Eagan, 178 Mont. at 76, 582 P.2d at 1200.
     We hold that, under the present set of facts, defense
counsel established a presumption of prejudice to DeGraw and
the State failed to rebut this presumption. The evidence is
uncontroverted that foreman Younq was dining at his sister's
restaurant the evening before the jury delivered its verdict
and that he was a third party to a conversation at the
restaurant in which someone stated that DeGraw "had a
criminal record as long as your arm."    The record is also
uncontroverted that Young was affected enough by the
conversation   that   the  following   day   prior  to   the
deliberations when the jurors were discussing DeGraw's
credibility, Young informed the jurors that he had reliable
information from the sheriff's department and asked whether
they wanted to hear it. Although the jurors declined to hear
the offered information, the injury to DeGraw had already
occurred when Young heard the prejudicial comments from a
third party and then when he informed the remaining eleven
jurors that he had reliable information from the sheriff's
department.   Undoubtedly, most people are likely to assume
that information from the sheriff's department is not
favorable when pertaining to a person who is being tried for
felony assault.
     Three jurors--Pierce, Myers and foreman Young--were
questioned at a hearing to determine whether jury misconduct
prejudiced DeGraw.    The District Court found that Young
considered the information "nothing more than 'small-town
gossip,'" and that Young did not allow the information to
affect his decision. The District Court then noted that the
other jurors did not allow Young to share the information and
that Young could not have 'contaminated' the rest of the jury
by merely mentioning that he had heard something.         The
District Court, citing Putro v. Baker (1966), 147 Mont. 139,
147, 410 P.2d 717, 721-22, recognized that a juror cannot
purge himself merely by declaring that extraneous information
did not affect his judgment, but then concluded that "the
testimony of these jurors shows that prejudice or injury did
not occur." We disagree.
     We stated the applicable law first in 1890 in State u .
Jackson (1890), 9 Mont. 508, 24 P. 213, where we held that
the State may remove the presumption of prejudice by using
the
     testimony of the jurors to show facts which prove
     that prejudice or injury did not or could not
     occur.   For example, if a juror is temporarily
     separated from his fellows  . . . he may show that
     during such separation he saw or talked to no one,
     and that no influences were brought to bear upon
     him of any character.    This court, however, has
     never held, and does not now hold, that, if the
     contact of the juror with outside, prejudicial
     influences    be     clearly    demonstrated   and
     uncontroverted, the juror may purge himself by
     testifying that such influences did not affect his
     judgment in forming his verdict.
Jackson, 9 Mont. at 522, 24 P. at 216-17. In a more recent
decision, Eagan, a disqualified juror may have made his
prejudice known to other jury members.    The District Court
relied completely on the responses from the challenged iuror
that he had not discussed the case with the other jurors. We
noted that improper conduct is imputed to the entire jury
panel when one juror is found guilty of improper conduct.
Eagan, 178 Mont. at 78, 582 P.2d at 1201 (citing Kinkaid v.
Wade (1966), 196 Kan. 174, 410 P.2d. 333, 337). We then held
that "[wle cannot assume   . . .   that the remainder of the jury
panel had been safeguarded from contamination in the absence
of some interrogation add.ressed to those jurors to dispel the
possibility that prejudice existed . . . . " Eagan, 178 Mont.
at 78, 582 P.2d at 1201.
     In the present case, the District Court relied
completely on the responses of the three jurors who testified.
at a subsequent hearing concerning jury conduct.          The
remaining nine jurors were never polled. The record does not
contain any other evidence that would establish that
prejudice to DeGraw did not arise. We cannot assume that the
entire jury panel was safeguarded from contamination.     The
presumption of prejudice that is created when uncontroverted
evidence establishes that prejudicial statements concerning a
defendant reached one or more jurors, is not rebutted when,
as in this case, no evidence existed to rebut the presumption
other than the testimony of three of the twelve contaminated
jurors.
     The District Court also stated that "[flacts more
prejudicial on their face than the facts in the case at bar
have not warranted a mistrial in other cases." In light of
the three cases the District Court cited, which we review
below, we disagree.    In State v. Counts (1984), 209 Mont.
242, 679 P.2d 1245, a juror and a key witness for the
prosecution, who were acquaintances, had lunch together
during the trial. The acquaintanceship between the juror and
the witness had been disclosed during voir dire.          The
District Court and the defense counsel questioned both the
witness and the juror because of the appearance of improper
conduct, but unlike the present case with DeGraw, failed to
find any indication that the luncheon conversation concerned
the trial or the defendant in anyway. Counts, 209 Mont. at
244-46, 679 P.2d at 1246-47.        The record contained no
evidence to dispute the District Court's finding and we
therefore held that no prejudice to the defendant occurred
and the appearance of impropriety was not a sufficient basis
for reversal. Counts, 209 Mont. at 249-50, 679 P.2d at 1249.
     In State v. Gillham (1983), 206 Mont. 169, 670 P.2d 544,
the defendant was convicted of attempted deliberate homicide.
After the verdict was announced, defense counsel polled the
jurors regarding their exposure to media coverage of the
trial.   One juror admitted to reading a newspaper article
before the defendant presented his case.         The article
summarized the State's case. The juror testified that it was
an accurate and factual report and "about the same" as the
admissible testimony already before the jury. Gillham, 206
Mont. at 180-81, 670 P.2d at 550-51. But again, unlike the
present case, no evidence was before the court demonstrating
that the information was prejudicial or other than what was
already before the jury.    We agreed that juror misconduct
occurred but adopted the reasoning of the Oklahoma court
which stated that "the burden of persuasion is on the
defendant to show by clear and convincing evidence that (1)
the jurors were specifically exposed to media reports which
(2) were prejudicial to the defendant.  Mere proof that a
juror or jury was exposed to factual account of the trial
will not meet this burden of persuasion." Gillham, 206 Mont.
at 181, 670 P.2d at 551 (quoting Tomlinson v. State (Okla.
Cr.App.1976), 554 P.2d 798, 804).     We then held that the
defendant failed to meet his burd-en of establishing the
prejudicial nature of the questioned media information.
Gillham, 206 Mont. at 181, 670 P.2d at 551.
     In State v. Murray (Mont. 1987), 741 P.2d 759, 44 St.
Rep. 1394, two jurors' conducts were questioned. After the
trial had begun, juror Schaeffer was seen entering the local
office of the state Social and Rehabilitative Services (SRS)
after evidence had already been shown that SRS was
peripherally involved in the case. Evidence was also
presented that Schaeffer had, during the course of a
conversation with his wife at a restaurant, mentioned the
names of the defendant and his children.     Juror Schaeffer
then testified that he did not discuss the case in public at
a restaurant and that he had not formed an opinion as to the
defendant's guilt or innocence prior to jury deliberations.
Murray, 741 P.2d at 761-62, 44 St.Rep. at 1396-97.
     Juror McCoy's conduct was also questioned in Murray.
During the course of the trial and after evidence of sexual
abuse to the children had been presented, juror McCoy made
several anonymous phone calls to a county attorney who
assisted with the prosecution of the defendant.      Without.
knowing the identity of the caller, the county      attorney
finally spoke with the caller and listened to her concern
that criminal cases involving sexual abuse charges should be
closed to the public.    The county attorney explained to the
cal-ler that sexual abuse evidence was properly admissible in
a public trial   in the present case.   The county attorney
later discerned the identity of the caller and informed the
trial judge and the defense counsel.   Murray, 741 P.2d at
761-62, 44 St.Rep. at 1396-97.
     Juror McCoy testified at a subsequent hearing that she
did not form an opinion as to the defendant's guilt or
innocence prior to deliberations, that she held no prejudice
against the defendant, and that she could be a fair and
impartial juror.    The county attorney 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. Murray, 741 P.2d at 761-62, 44 St.Rep.
at 1396-97.
     Unlike the present situation with DeGraw, no prejudicial
statements were made by either juror Schaeffer or juror
McCoy.   We held, however, that the defendant established a
presumption of prejudice as a result of juror Schaeffer's and
juror McCoy's conducts, but that the District Court properly
concluded that sufficient evidence existed to rebut the
presumption. Murray, 741 P.2d at 762, 44 St.Rep. at 1397.
     The District Court, in the present case, cited the above
three cases as having facts more "prejudicial on their face
than the facts in the case at bar  . . . ." We disagree. In
the present case, the evidence is uncontroverted that foreman
Young was a third party to a conversation in which someone
stated that DeGraw "had a criminal record as long as your
arm." The evidence also establishes that while the jurors
were discussing DeGrawls credibility, foreman Young mentioned.
that he had some reliable information from the sheriff's
office.    In the above three cases, the jury misconduct
presented in each case does not equal the amount of injury
cast upon DeGraw by the prejudicial statements made to
foreman Young and by him to the remaining eleven jurors
during the del-iberations. We therefore hold that the State
failed to rebut the presumption of prejud.ice established by
DeGraw and reverse the District Court on this issue and
remand for a new trial.
     The second issue raised on appeal is whether the
District Court erred in refusing to give defendant's proposed
instruction no. 4. This instruction reads:
     You are instructed that if the testimony in this
     case, in its weight and effect, be such that two
     conclusions can be reasonably drawn from it, one
     favoring the defendant's innocence and the other
     tending to establish his guilt, the jury should
     adopt the conclusion of innocence.
The State objected to the instruction arguing that the
instruction is confusing and that it is covered by the
instruction that includes the presumption of innocence. The
District Court refused this instruction stating that it was
not an entirely correct statement of the law.
     Included in the instructions the District Court gave to
the jury were the following:
                      Instruction - - 2
                                  No.


         In determining what the facts are in the case,
    it may be necessary for you to determine what
    weight should be given to the testimony of each
    witness.     To do this you should carefully
    scrutinize    all   the    testimony   given,   the
    circumstances   under   which   each  witness   has
    testified, and every matter in evidence which tends
    to indicate whether a witness is worthy of
    belief. . . .
                      Instruction - - 7
                                  No.


    3. The State of Montana has the burden of proving
    the guilt of the defendant beyond a reasonable
    doubt.
     4.   Proof beyond a reasonable doubt is proof of
     such a convincing character that a reasonable
     person would rely and act upon it in the most
     important of his own affairs. Beyond a reasonable
     doubt does not mean beyond any doubt or beyond a
     shadow of a doubt.
     5. The defendant is presumed to be innocent of the
     charge against him. This presumption remains with
     him throughout every stage of the trial and during
     your deliberations on the verdict.      It is not
     overcome unless from all of the evidence in the
     case you are convinced beyond a reasonable doubt
     that the defendant is guilty. The defendant is not
     required to prove his innocence.
                       Instruction - - 9
                                   No.
     To convict the defendant of FELONY ASSAULT, the
     State must prove the following element:
     That the defendant purposely or knowingly caused
     reasonable apprehension of serious bodily injury to
     STEVE KETCHUM or another person by use of a weapon.
     If you find from your consideration of all the
     evidence that this element has been proved beyond a
     reasonable doubt, then you should         find the
     defendant guilty.
    If, on the other hand, you find from your
    consideration of all the evidence that this element
    has not been proved beyond a reasonable doubt, then
    you should find the defendant not guilty.
Refusing an instruction, adequately covered bv          other
instructions, is not reversible error. Wheeler v. City of
Bozeman (Mont. 1988), 757 P.2d 345, 347, 45 St.Rep. 1173,
1176; Burns v. U & R Express (Mont. 1981), 624 P.2d 487, 489,
38 St.Rep. 302, 304-05.        In the present case,        the
instructions as a whole adequately informed the jury on    the
standards addressing the presumption of innocence          and
reasonable doubt and also gave the jurors guidance          in
weighing the witnesses' testimonies. Instruction no. 4     did
not add to the court approved instructions.    The District
Court therefore did not err in refusing instruction no. 4.
     Affirmed in part, reversed in part, and remanded for a
new trial.


                                         Justice




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