According to a federal task force, a
serial killer may be responsible for the disappearances of three women
who were mentally retarded and lived in Minnesota and North Dakota. The
task force is focusing on Floyd Tapson, 38, who is charged in
Montana with the rape and attempted murder of a 22-year-old woman with
mental retardation. Tapson pleaded not guilty in the Montana case and is
free on bail.
Tapson, a former supervisor in group
homes in northwestern Minnesota and eastern North Dakota, is being
investigated in three cases covering a nine-year period -- the homicide
of a Moorhead, Minn., woman who was mentally retarded and the
disappearances and presumed murders of women with similar disabilities
in Wadena, Minnesota, and Grand Forks, N.D. Additionally, investigators
in Maryland are reviewing cases of women who disappeared in the late
1980s, when Tapson worked at a group home en Baltimore.
On 11 august 1999, the former
group home manager was sentenced to life in prison for trying to murder
a mentally disabled woman in Billings last year. Calling Tapson "a
cold-blooded, would-be killer" and "a grave risk" to
women with disabilities, District Judge G. Todd Baugh ordered the
maximum sentence sought by Yellowstone County prosecutors. Under Montana
law, Tapson, 38, will have to serve at least 30 years in prison before
he is eligible for parole.
An unrepentant Tapson, who continued
to say the victim had fabricated her accusations and suggested that he
should be released having served four months since his conviction. The
sentence, one of the stiffest in Yellowstone County in recent years,
could also have far-reaching effects as a task force of detectives in
North Dakota and Minnesota try to solve the murders of three
developmentally disabled women in those states.
Task-force members consider Tapson
their prime suspect and hope that the long sentence will motivate Tapson
to aid their investigations. Members of the task force have said they
may offer Tapson immunity in exchange for his cooperation. Representing
Tapson, Billings attorney Jeff Michael said afterward that Tapson may be
willing to talk with those investigators, although Tapson continues to
say he had nothing to do with the deaths of those women.
Yellowstone County prosecutors had
stated that in October 1998 Tapson lured the mentally challenged
woman to the group home where he worked, took her to his home,
restrained her with handcuffs for several hours in his basement and then
repeatedly raped her. To cover his crime, he drove the woman west of
town on the Molt Road, shot her twice at close range - once in the head
- and left her for dead. Despite her injuries, the woman crawled through
a barbed-wire fence and ran to a nearby home for help. She survived and
identified Tapson as her assailant.
Judge denies Tapson's bid to move retrial
By Greg Tuttle
Of The Gazette Staff
September 26, 2002
Floyd Tapson can get a fair trial in Yellowstone County
and prosecutors did not violate his right to a speedy a trial, a judge
District Judge Gregory Todd has denied a request by Tapson's public
defenders to move the trial from Billings. Tapson's attorneys had argued
that media coverage of the case had made it impossible for him to
receive a fair trial here.
Chief Public Defender Sandy Selvey had also asked the judge to throw
out rape and kidnapping charges against Tapson. Todd denied that request
in a written ruling filed last Friday.
Tapson's trial is scheduled to begin Oct. 7. It will be the second
time prosecutors have asked a jury to convict the former group home
manager of kidnapping, raping and trying to kill a disabled Billings
woman in 1998.
At his first trial in 1999, the alleged victim, then 22, testified
that she asked Tapson for a ride, then was abducted and raped. The woman
said Tapson drove her to a remote area, shot her twice and left her for
A jury convicted Tapson, now 42, of attempted murder, but could not
agree on the rape and kidnapping charges.
Tapson was serving a life sentence when the Montana Supreme Court
ruled last Dec. 20 that his rights were violated at the first trial when
the trial judge met privately with jurors during their deliberations.
The Supreme Court ordered a new trial, and at his arraignment in April
prosecutors charged Tapson again with all three felony counts.
Selvey said prosecutors violated Tapson's right to a speedy trial by
refiling the rape and kidnapping charges years after the jury at his
first trial could not decide if he committed those crimes.
Todd said prosecutors had no choice but to wait until Tapson's
appeal of his conviction for attempted murder was decided by the
The judge also said Tapson's ability to prepare his defense has not
been hurt by the passing of time, and that nearly all of the
witnesses from the first trial have been located and are available
for the second trial.
"If anything, (Tapson) has the benefit of having previously seen the
state's witnesses, evidence and theory of the case," Todd said.
Selvey also said local media coverage has made it impossible for
Tapson to receive a fair trial in Billings. At a hearing last month,
Selvey described the coverage as "overwhelming" and "highly
prejudicial." Selvey specifically objected to news accounts that
described Tapson as a suspect in several unsolved murder cases in
other states, and asked Todd to move the trial to another county.
Prosecutors objected, saying there was no evidence that news
accounts of the case have been sensational, factually inaccurate or
editorial in tone.
Todd sided with prosecutors.
"Even though 24 news articles were submitted by Tapson and those
articles contain publicity about Tapson and comments by prosecutors,
Tapson has not shown actual prejudice sufficient to meet the change
of venue standard," the judge wrote.
In a related issue, Todd agreed with a request by Tapson to
interview potential jurors individually before selecting a jury
panel for the second trial. Usually, jurors are interviewed as a
group before 12 are chosen to hear evidence.
Todd said that speaking to potential jurors individually would help
ensure that Tapson gets a fair trial without moving it to another
county. It will also aid the attorneys in deciding whether a
potential juror's knowledge of the case from press accounts "has
inflamed his or her passions or created a bias" against Tapson, the
Tapson hearing covers emotional state
By Greg Tuttle
Of The Gazette Staff
July 16, 2003
In an unusual courtroom exchange, a prosecutor and a man accused of
attempted murder, rape and kidnapping sat across from each other at a
table Tuesday afternoon and engaged in freewheeling exchange about the
defendant's emotional state.
Yellowstone County Attorney Dennis Paxinos wanted
Floyd Tapson to admit that much of the anxiety he feels as a defendant
in the criminal case was the result of his own actions. Tapson remained
polite during the 10-minute conversation witnessed only by the District
Court judge, the attorneys and a few courtroom observers. There was no
"You don't like answering these questions, do you?"
Paxinos pressed Tapson midway through the conversation.
"I don't mind, sir," Tapson replied.
Earlier, during questioning by his court-appointed
attorney, Tapson had complained that the stress of waiting for his trial
on charges that he tried to kill a disabled Billings woman after he
raped and kidnapped her had increased in the nearly two years since he
won the right to a second trial. Tapson said he has had to sit through
numerous court hearings and "listen to the clicking of that camera," he
said, referring to a newspaper photographer.
"It's all very stressful," he said.
Paxinos revisited the comment about the clicking
camera when he cross-examined Tapson. The men sat at a courtroom table
about 10 feet apart after the judge said Tapson did not have to take the
"Are you saying you should have a private trial, that
the public shouldn't be invited?" Paxinos asked Tapson.
"No sir," Tapson shot back.
The hearing before Judge Gregory Todd was to consider
four recent motions filed by Tapson and his public defenders, Carl
DeBelly and Robert Eddleman. After hearing about 31/2 hours of testimony
from several witnesses, Todd said he would rule on the matters in late
July or early August. Tapson's trial is scheduled to begin Sept. 15.
Prosecutors say Tapson, 42, abducted a 22-year-old
disabled Billings woman in October 1998, held her bound in his home for
several hours while he sexually assaulted her, then drove her to a
remote area near Molt and shot her twice. He was convicted of the
charges in 1999 and sentenced to life in prison. But the Montana Supreme
Court reversed the convictions in December 2001 and ordered a new trial.
After four previous delays in the second trial,
Tapson's defense team filed four new motions in the case last month.
Tuesday's hearing was held to take evidence on the defense motions.
Among the issues raised by the defense is a request
that evidence collected before a search warrant was issued be thrown
out. Tapson said Yellowstone County sheriff's detectives took swabs of
his skin and clothes for gunshot residue and a combing of his pubic hair
without his consent.
Sgt. George Jensen testified Tuesday that the
evidence collected before the search warrant could have been lost if
they waited for a court order.
Tapson is also seeking to have other evidence,
including a handgun found in his home, thrown out before the trial
His attorneys argue that the search warrants obtained
by the detectives are invalid because they were signed by Justice of the
Peace Larry Herman. The defense said Herman did not properly file a
certificate with the county after he was appointed to the Yellowstone
County Justice Court position in 1997, and, therefore, all the evidence
obtained in the search warrant is invalid.
Herman testified Tuesday that he was not required to
refile the certificate because he was a city court judge at the time of
his appointment and the certificate he filed for that position was valid
for the Justice Court judgeship.
The defense is also asking Todd to dismiss the rape
and kidnapping charges before trial and to move the trial out of
Yellowstone County because of pretrial publicity.
Tapson is being held in the county jail on $1 million
bond pending the trial.
The Billings Gazette
Ten years after woman's disappearance, family seeks closure
Forum Communications Co.
Saturday, December 23, 2006
GRAND FORKS, N.D. (AP) - Ten years after Kristi Nikle disappeared, her
aunt says the family's life has been a roller coaster.
Authorities recently focused their search on identified human remains
found in a remote Montana ravine two years ago. But they said last week
the remains were not a genetic match with Nikle.
Darlene Stevens, Nikle's aunt, said Nikle's family last saw her Oct. 2,
1996. A couple of days later, a family friend got a brief glimpse of her
with an older "boyfriend," Stevens said. Then the 19-year-old Nikle
Darlene Stevens holds a picture of her niece Kristi Nikle, who
disappeared in 1996, Friday, Dec. 23, 2006, in Grand Forks, N.D. Ten
years after Nikle disappeared, her aunt says the family's life has been
a roller coaster. Authorities recently focused their search on
identified human remains found in a remote Montana ravine two years ago.
But they said last week the remains were not a genetic match with Nikle.
"As far as we know, she's alive. Until we know differently," Stevens
said. "You want to hold onto hope that she is alive. But, there's no way
she'd be alive and in her right mind and not call. No way."
The disappearance has changed Nikle's family. Stevens said her 13-year-old
son cannot walk by himself to the grocery store a few blocks from her
"In our whole family, if anybody goes anywhere, you better tell someone
'cause we'll freak out if we can't find you," she said. "I wouldn't want
anybody, not even my worst enemy, to feel ... I wouldn't wish this on
Kristi Nikle, although socially capable, had the mental ability of a 10-year-old,
family members have said. In 1996, she was 5 feet, 3 inches tall and
weighed about 100 pounds. She had long brown hair.
Authorities interviewed Floyd Tapson, a man originally from Hannah who
was convicted in Montana in a 1998 attack on a developmentally disabled
woman near Billings. Montana authorities tipped Grand Forks police that
Tapson had worked in group homes in the Grand Forks area. He has denied
any involvement in Nikle's disappearance.
Grand Forks police plan to continue working with their Montana
counterparts in the search for clues to what happened to Nikle, Lt. Rahn
"We're still looking at a broad area in Montana," he said.
"How they found those bones, over a cliff and a dent on the skull _ I
feel really bad," Stevens said of the remains in the ravine. "There is
someone else out there, wondering and waiting, Those bones belong to
Her niece would now be 30 years old.
"You could be anywhere, and see somebody and think, 'gee, that looks
like Kristi,'" she said.
The continuing search is important to Nikle's family.
"We just want closure, that's all," her aunt said.
Man guilty of kidnapping suspect in unsolved murders
Nov 04, 2003
By The Associated
BILLINGS, Mont. - A man
who pleaded guilty to kidnapping and trying
to kill a disabled woman in 1998 remains a
suspect in unsolved cases in North Dakota
and Minnesota, a police detective says.
New evidence will be sent
to the FBI crime lab for analysis that could
link Floyd Tapson, 42, to the two cases,
Grand Forks Police Detective Mike Sholes
"Physical evidence has
surfaced," Sholes said. He declined to
Tapson, of Billings,
agreed to a 75-year prison sentence as part
of a plea agreement last week on charges of
kidnapping and attempted murder. He was
charged in the 1998 attack on a 22-year-old
developmentally disabled woman. Sentencing
was set for Nov. 21.
unsolved crimes in North Dakota and
Minnesota are similar to the Montana crime,
in which they say Tapson befriended a woman
at a group home where he worked, raped her
and tried to kill her.
The link to Tapson grew
stronger when the investigators found that
Tapson held similar positions at group homes
in the areas where other women disappeared,
The first case involved
the disappearance of Carla Beth Anderson,
23, of Wadena, Minn., in 1987. Tapson was
tentatively ruled out as a suspect in that
case after an interview and polygraph exam
last year, Sholes said.
"He didn't appear as
strong of a suspect as he was," Sholes said.
"That doesn't mean the possibility doesn't
Tapson remains the top
suspect in the 1994 killing of a 22-year-old
woman in Moorhead, Minn., and the 1996
disappearance of a 19-year-old woman in
Grand Forks, Sholes said.
Both cases involve
victims who were developmentally disabled.
Kristi Nikle, 19,
disappeared in the Grand Forks area in 1996;
Renae Lynn Nelson, of Moorhead, Minn. 22,
disappeared in 1994 and was found dead in
the Red River months later.
"Tapson has never
provided us any information on any of the
cases to help him or eliminate him. He
strongly denies any involvement in any of
these things," Sholes said.
"As far as ours go and as
far Clay County (Minn.) goes, nothing has
"We're going to keep
progressing. Obviously, science, technology
develops daily," Sholes said.
The detective also said
he wants to talk with Tapson again.
"I have every intention
in the world of going back and visiting with
him for as many times as it takes," Sholes
said. "He's been cooperative, but I'm under
the impression he's not telling me
Sholes said analyzing the
new evidence could take months, but
authorities have time on their side in
"He's not going anywhere,"
Kristi Lynn Nikle
Missing since October 10, 1996 from Grand Forks, Grand Forks County,
Classification: Endangered Missing
Date Of Birth: November 8, 1976
Age at Time of Disappearance: 19 years old
Height and Weight at Time of Disappearance: 5'3"; 101 lbs.
Distinguishing Characteristics: White female. Brown hair; blue eyes.
Medicals: Kristi Nikle has a mild mental disability.
Nikle was last seen in Grand Forks, North Dakota on October 10, 1996. On
October 10, 1996, her father contacted local law enforcement authorities
in Grand Forks, North Dakota, and reported that he had not seen or heard
from his daughter in one week. An extensive investigation was conducted,
however the whereabouts of Kristi Nikle remain unknown.
A former North Dakota man, Floyd Tapson, has been named a person of
interest in Nikle's disappearance. Tapson was convicted of kidnapping
and shooting a mentally handicapped woman in Montana in 2003. He is
serving a 75-year prison sentence.
STATE v. TAPSON
STATE of Montana, Plaintiff and Respondent,
Floyd TAPSON, Defendant and Appellant.
Argued Sept. 10, 2001. -- December 20, 2001
Chad Wright (argued), Appellate Defender, Helena, MT,
For Appellant.Mike McGrath, Montana Attorney General, Jim Wheelis (argued),
Assistant Montana Attorney General, Helena, MT; Dennis Paxinos,
Yellowstone County Attorney, Billings, MT, For Respondent.
¶ 1 Floyd Tapson was convicted by a jury in the
Thirteenth Judicial District Court, Yellowstone County, of attempted
deliberate homicide and sentenced to life in prison. He appeals his
judgment and conviction. We reverse and remand for further proceedings
consistent with this opinion.
¶ 2 Tapson raises two issues on appeal which we have
restated for clarity as follows:
¶ 3 1. Whether defense counsel rendered deficient
performance during voir dire for not questioning or challenging two
prospective jurors whose daughters had been violently raped and whether
Tapson was prejudiced because these prospective jurors served on the
final jury panel.
¶ 4 2. Whether the District Court committed
reversible error by entering the jury room alone, without counsel or
Tapson present, and without a waiver by Tapson of his constitutional
right to be present.
¶ 5 Because we conclude that Issue 2 is dispositive,
we do not address Issue 1.
Factual and Procedural Background
¶ 6 On October 14, 1998, the State charged Tapson
with three felony counts: sexual intercourse without consent, in
violation of § 45-5-503, MCA; aggravated kidnaping, in violation of
§ 45-5-303(1)(c), MCA; and attempted deliberate homicide, in violation
of §§ 45-4-103 and 45-5-102, MCA. The charges stemmed from an incident
that occurred on October 8, 1998, involving Josephine Red Star, a
developmentally disabled woman.
¶ 7 Red Star alleged that Tapson duped her into
coming to his house where he threatened her with a gun, handcuffed her,
and locked her in his basement for seven or eight hours. Red Star knew
Tapson because he worked at the group home where her former boyfriend
lived. Red Star further alleged that when Tapson finally released her
from the basement, he took her to his bedroom where he sexually
assaulted her. He then drove her to a secluded area outside of town
where he shot her twice-striking her once in the cheek and once in the
hand-before she managed to get away and run to a neighboring house for
¶ 8 When law enforcement officers questioned Tapson,
he told them that he had not seen Red Star since late August and that he
had been at work when the incident allegedly occurred. He later
changed his story and alleged that Red Star had arrived at his house on
her own, that they ate pizza and drank beer while watching movies, and
that they had consensual sex. He also stated that, afterwards, they
went target shooting at Red Star's request and that she was shot either
by accident or that she shot herself.
¶ 9 The case proceeded to trial on March 26, 1999.
Since the case had received considerable pre-trial publicity, the State
and defense counsel agreed to an extended jury selection process
including individual voir dire. On the second day of voir dire,
several prospective jurors revealed that they had either close friends
or family members who had been victims of crimes similar to those
charged against Tapson. One prospective juror had a friend that was
kidnaped, raped and murdered. Two other prospective jurors revealed
that they each had a daughter who was the victim of a violent rape.
Defense counsel did not challenge these prospective jurors for cause,
nor did he use any peremptory challenges to remove these individuals.
Both of the prospective jurors whose daughters were raped ended up
serving on the final jury panel.
¶ 10 On April 8, 1999, the second full day of jury
deliberations, the District Court met with counsel on the record to
notify them that the jury had a verdict on one of the three counts but
was unable to reach a verdict on the other two counts. The court
recessed until Tapson could be present. Neither the court nor the
parties knew which charge the jury had decided or how it had decided
¶ 11 Once Tapson was present, the State suggested
substituting the existing verdict form that listed all three charges,
with six verdict forms-one “guilty” form and one “not guilty” form for
each of the three charges. The State maintained that substituting
verdict forms would avoid the problem of the jury switching its current
verdict on the one charge for some sort of last minute compromise. The
State also suggested that the Judge take the forms into the jury room
rather than handling the matter in open court. Since defense counsel
voiced no opposition to these suggestions, the Judge took the forms into
the jury room. Neither counsel nor Tapson were present. The Judge
did not return to the courtroom until eleven minutes later. There was
no record of whether the Judge spent the entire eleven minutes with the
jury or only a portion of that time. Nor was any record made of what
the Judge told the jury, whether the jury had any questions, or whether
the Judge gave any responses.
¶ 12 The jury returned a verdict of “guilty” on the
charge of attempted deliberate homicide. The jury foreperson stated
that the jury was “unanimous in the opinion that we could not reach a
verdict in the others.” The court then dismissed the jury and set a
time for sentencing. On August 10, 1999, the court sentenced Tapson to
life imprisonment. Tapson appeals his conviction and sentence.
¶ 13 Whether the District Court committed reversible
error by entering the jury room alone, without counsel or Tapson present,
and without a waiver by Tapson of his constitutional right to be present.
¶ 14 The federal constitutional right to be present
at all criminal proceedings is one of the most basic rights contained in
the Confrontation Clause of the Sixth Amendment. Illinois v. Allen
(1970), 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353. “The
defendant's right to be present at all proceedings ․ which may take his
life or liberty is designed to safeguard the public's interest in a fair
and orderly judicial system.” Sturgis v. Goldsmith (9th Cir.1986), 796
F.2d 1103, 1109.
¶ 15 In Montana, the right of a criminal defendant to
be present at his trial is expressly guaranteed by the Montana
Constitution: “In all criminal prosecutions the accused shall have the
right to appear and defend in person and by counsel․” Art. II, Sec. 24,
Mont. Const. Since the right to appear and defend in person is found
within Montana's Declaration of Rights, it is a fundamental right. A
right is “fundamental” under Montana's Constitution if the right is
either found in the Declaration of Rights or is a right “without which
other constitutionally guaranteed rights would have little meaning.” Butte
Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309,
¶ 16 This Court recognized as early as 1922, when
interpreting an identical provision of the 1889 Montana Constitution,
that “the defendant must be present throughout the entire trial.” State
v. Reed (1922), 65 Mont. 51, 56, 210 P. 756, 757 (emphasis added). The
Court stated in Reed:
No principle of law, relating to criminal procedure,
is better settled than that, in felony cases, nothing should be done in
the absence of the prisoner. It is his unquestioned right “to be
confronted with his accusers and witnesses.” He has the legal right to
be present when the jury are hearing his case, and at all times during
the proceeding of the trial, when anything is done which in any manner
affects his right․
Reed, 65 Mont. 51, 58, 210 P. 756, 758 (citation
¶ 17 There are no other reported cases in Montana
where a judge entered the jury room alone and instructed the jury off
the record. While we do not believe that the Judge in this case
intended to influence the jury in any way, other jurisdictions have made
it clear that to insure that jury deliberations remain free of any
extraneous influences, the jury room door must remain closed to judges.
See United States v. Smith (7th Cir.1994), 31 F.3d 469, 471 (“[T]he
unusual practice of a judge entering the jury room to speak privately
with jurors is almost certain to run afoul of a defendant's right to be
present during trial proceedings.”); Commonwealth v. Patry (2000), 48
Mass.App.Ct. 470, 722 N.E.2d 979, 983 (“[J]udges should not enter jury
rooms at any time to conduct the court's business, even with the parties'
consent or at the invitation of the jury.”); Graves v. State (Ala.Crim.App.1979),
377 So.2d 1129, 1130 (“No communication, whatever, should take place
between the judge and the jury after the cause has been submitted to
them, unless in open court with all the parties and their attorneys
present. The sanctity of the jury room must remain inviolate, and it
is the trial judge's responsibility to maintain that sanctity.
Anything less is an abdication of his judicial responsibility.”); Graham
v. State (App.1942), 73 Okla.Crim. 337, 121 P.2d 308, 311 (“To permit
various persons, under one pretext or another, to be with the jury in
its deliberations is to open the door to grave abuse and to strike
directly at the heart of the system.”); State v. Wroth (1896), 15 Wash.
621, 47 P. 106, 107, overruled in part by State v. Caliguri (1983), 99
Wash.2d 501, 664 P.2d 466 (“In the discharge of his official duty, the
place for the judge is on the bench. As to him, the law has closed the
portals of the jury room, and he may not enter.”)
¶ 18 In United States v. United States Gypsum Co.
(1978), 438 U.S. 422, 460, 98 S.Ct. 2864, 2885, 57 L.Ed.2d 854, wherein
counsel agreed to let the judge meet privately with one juror, the
United States Supreme Court explained the danger inherent with ex parte
meetings with the jury during deliberations:
Any ex parte meeting or communication between the
judge and the foreman of a deliberating jury is pregnant with
possibilities for error. This record amply demonstrates that even an
experienced trial judge cannot be certain to avoid all the pitfalls
inherent in such an enterprise. First, it is difficult to contain,
much less to anticipate, the direction the conversation will take at
such a meeting. Unexpected questions or comments can generate
unintended and misleading impressions of the judge's subjective personal
views which have no place in his instruction to the jury-all the more so
when counsel are not present to challenge the statements.
In Gypsum, the Supreme Court held that this
unrecorded meeting between judge and juror warranted reversal because it
was impossible to gauge how the meeting affected the jury's verdict. Gypsum,
438 U.S. at 462, 98 S.Ct. at 2886.
¶ 19 The State contends that Gypsum does not apply
here because the jury in Gypsum was still deliberating and the jury in
the case sub judice was not. The State, however, is mistaken. No one
actually knew the status of the jury's deliberations in this case. The
Judge noted prior to his decision to enter the jury room that “there
appears to be a hung jury on two counts and a verdict on one․” Likewise,
the prosecutor commented that “nobody here knows which decision they
¶ 20 Tapson argues that there is no discernable
difference between the position of the jury in his case and that of the
jury in Gypsum as both juries were deadlocked when the judge entered the
jury room. Both cases involved “active deliberations” because the jury
foreman had not yet signed the verdict and the verdict had not been
returned to the judge and pronounced in open court. See
§ 46-16-603(1), MCA. Furthermore, a jury note indicating some sort of
verdict does not guarantee a unanimous verdict. Tapson still had the
right to poll the jurors in open court about their present state of mind
with regard to the verdict. State v. Pyatt, 2000 MT 136, ¶¶ 16-17, 300
Mont. 25, ¶¶ 16-17, 1 P.3d 953, ¶¶ 16-17. Moreover, the jury could
have been directed to further deliberate or could have been discharged
because of lack of unanimity on all counts. See § 46-16-604, MCA.
¶ 21 In addition to a criminal defendant's
fundamental right to be present at all critical stages of trial, a
criminal defendant has the fundamental right to a public trial. Art.
II, Sec. 24, Mont. Const. A public trial ensures that the defendant has
the means for proving procedural facts necessary to protect his or her
rights and to see that the defendant is not “unjustly condemned.” State
v. Keeler (1916), 52 Mont. 205, 218, 156 P. 1080, 1083.
¶ 22 The right to a public trial extends to the
entire trial including the judge's instructions to the jury. Commonwealth
v. Patry (2000), 48 Mass.App.Ct. 470, 722 N.E.2d 979, 982-83. In Patry,
the judge met with the jurors to give supplemental instructions three
times in the jury room because the courtroom was being used for other
purposes. Both defense counsel and the prosecutor agreed to this
procedure and accompanied the judge into the jury room along with the
court reporter. On appeal, the court reversed Patry's conviction
holding that, even with the presence of counsel and a court reporter,
giving supplemental instructions to the jury in the jury room violated
the defendant's Sixth Amendment right to a public trial. Patry, 722 N.E.2d
at 982-83. Unlike Patry, Tapson's counsel was not present in the jury
room with the judge and no court reporter attended the meeting to record
¶ 23 The State contends that defense counsel waived
Tapson's right to be present and that Tapson is bound by the actions of
his attorney. The State cites State v. LaDue, 2001 MT 47, ¶ 28, 304
Mont. 288, ¶ 28, 20 P.3d 775, ¶ 28, for the idea that “an objection
concerning jurisdictional or constitutional matters must be raised
before the trial court, unless specific exceptions apply under
§ 46-20-701(2), MCA, and if the objection is not made it will not be
heard on appeal.”
¶ 24 Since Gypsum, the right to be present at all
federal criminal proceedings has been codified at Rule 43(a),
Fed.R.Crim.P. While this right can be waived, the waiver can only occur
by failing to appear at trial or through an express personal waiver by
the defendant. United States v. Felix-Rodriguez (9th Cir.1994), 22 F.3d
964, 967 (citations omitted).
¶ 25 “Waiver is defined as the voluntary abandonment
of a known right.” State v. Musgrove (1978), 178 Mont. 162, 170, 582
P.2d 1246, 1251 (emphasis added). See also Welsh v. Great Falls
(1984), 212 Mont. 403, 411, 690 P.2d 406, 411. This Court will not
engage in presumptions of waiver; any waiver of one's constitutional
rights must be made specifically, voluntarily, and knowingly. Park v.
Sixth Jud. Dist. Court, 1998 MT 164, ¶ 36, 289 Mont. 367, ¶ 36, 961 P.2d
1267, ¶ 36 (citing Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct.
1019, 1023, 82 L.Ed. 1461; State v. Lucero (1968), 151 Mont. 531, 538,
445 P.2d 731, 735).
¶ 26 Moreover, before a defendant can waive a
fundamental right, “such waiver, to be recognized by the courts, must be
informed and intelligent for there can be no waiver by one who does not
know his rights or what he is waiving.” State v. Allison (1944), 116
Mont. 352, 360, 153 P.2d 141, 145. In holding that the defendant in
Allison had not expressly waived his right to remain silent, this Court
The rights guaranteed by the Constitution apply to
all alike-the well-informed who know their rights as well as to the
ignorant who never heard of such rights. There stands the right like
the rock of Gibraltar and it so remains protecting the life and liberty
of every person whether the particular person knows about it or not.
Allison, 116 Mont. at 360, 153 P.2d at 144-45.
¶ 27 No one informed Tapson that the Judge's
intrusion into the jury room implicated two of Tapson's fundamental
rights-the right to personally appear at all criminal proceedings and
the right to a public trial. While Tapson's counsel professed to waive
these rights, there is nothing in the record to indicate that Tapson
himself was apprised of these rights, nor is there anything in the
record indicating that he personally made a knowing, intelligent and
voluntary waiver of these rights. On the contrary, the judge explained
that he was going to personally enter the jury room with the new verdict
forms and instruct the jury because it was the easiest way to handle
this process. Tapson could not have been fully informed when the
option to proceed in private or in open court was only presented as a
matter of convenience.
¶ 28 Consequently, we hold that in the future, when
there is some circumstance arguably making it necessary for the trial
judge to enter the jury room while the jury is present, a trial court
must, contemporaneously, explain to the defendant, on the record, the
defendant's constitutional right to be present at all critical stages of
the trial and the right to a public trial. If a defendant chooses to
waive these rights, the court must obtain an on-the-record personal
waiver by the defendant acknowledging that the defendant voluntarily,
intelligently and knowingly waives these rights.
¶ 29 The State further argues that Tapson was not
prejudiced when the Judge entered the jury room to exchange verdict
forms. The State maintains that it is unreasonable to believe that the
Judge, in the space of a minute or so, “through some sort of subtle,
unspoken communication, changed the minds of twelve people who had
reached a verdict on one count after two days of deliberation and said
they could not decide the others.” Moreover, the State contends that
Tapson cannot show that the Judge's appearance in the jury room had any
effect on the verdict or the undecided charges.
¶ 30 Tapson points out, on the other hand, that in
the space of a minute or so, the jury could have asked questions about a
lesser charge of failure to render aid as opposed to attempted
deliberate homicide; the jury could have inquired into which charge
carries the maximum allowable punishment; and the jury could have
forged a compromise on the Judge's response. The deficit in the record
makes it impossible to say beyond a reasonable doubt that there was no
prejudice to Tapson.
¶ 31 Although the most important factor here is the
actual intrusion of the Judge into the jury room during deliberations,
the lack of a record “makes it impossible to say that, beyond a
reasonable doubt, there was no prejudice to the defendant, and therefore
harmless error.” State v. Hilliard (Ct.App.1982), 133 Ariz. 364, 651
P.2d 892, 897. Therefore, the court in Hilliard adopted the rule that
“it is reversible error for the judge to enter the jury room after the
jury has retired to deliberate, regardless of the intent or content of
any ensuing communication, and regardless of the prejudice, or lack
thereof, resulting.” Hilliard, 651 P.2d at 898.
¶ 32 While we agree with the underlying premise of
Hilliard that a judge should avoid entering the jury room under almost
any circumstance, we also determine that a defendant can, with proper
advice, waive his or her constitutional right to be present at all
critical stages of the trial and the right to a public trial. Hence,
we now adopt the rule that absent a contemporaneous, personal, knowing,
voluntary, intelligent and on-the-record waiver by the defendant,1
if a judge enters the jury room while the jury is present and without
counsel, the defendant, and the court reporter, reversal will be
¶ 33 Accordingly, we hold that the District Court
committed reversible error in this case by entering the jury room with
the jury present but without counsel, Tapson and the court reporter and
without a contemporaneous, personal, knowing, voluntary, intelligent and
on-the-record waiver by Tapson of his constitutional rights to a public
trial and to be present at all critical stages of the trial.
¶ 34 That said, the dissent has raised several
contentions that deserve response. First, the dissent takes issue with
our reviewing Tapson's constitutional claim on appeal, arguing that he
did not first raise that issue in the trial court. The dissent faults
us for not following the precedent set forth in LaDue and our statutory
law at §§ 46-20-104 and 701, MCA, that provide that a claim alleging an
error affecting jurisdictional or constitutional rights may not be
noticed on appeal if the alleged error was not objected to during trial.
¶ 35 While that is the general rule, § 46-20-701(2),
MCA, requires the defendant to, among other things, establish that the
claimed error was prejudicial. And that is the problem. Since, as we
have already pointed out, no record was made of what the trial judge
said to the jurors or what transpired in the eleven minutes that he was
absent from the court room, there is no way for Tapson to prove
prejudice. The record reflects that a recess was called “to advise the
jury of how to proceed.” Again, we are not implying misconduct on the
part of the court. However, the fact remains that Tapson could not
show what advice, if any, the Judge gave to the jurors and how that
might have affected their deliberations or verdict; he could not show
what questions, if any, the jurors might have asked and how those were
answered; and neither he nor his counsel could gauge the subtleties of
facial expression or body language of the jurors or the court that might
have provided grounds for objection. We decline to hoist a criminal
defendant on the horns of this sort of dilemma where two fundamental and
highly protected constitutional rights are involved-i.e., requiring him
to prove error prejudicially affecting his jurisdictional or
constitutional rights where the only means to meet that burden-the court
record-was not preserved by reason of the commission of the error itself.
¶ 36 Moreover, the State did not ground its argument
on appeal on the premise that Tapson waived his right of appeal by
failing to effectively object in the court below. Rather, the State
vigorously argued the merits of Tapson's claim and only incidentally
mentioned the threshold issue of whether Tapson had properly preserved
the matter for our review. Indeed, the totality of the State's
argument in this respect is contained in one-half of a paragraph out of
a 39-page brief. We are, accordingly, disinclined to give this
contention any more importance than the State apparently did.
¶ 37 Second, the dissent mistakenly relies on United
States v. Gagnon (1985), 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486,
for the idea that a defendant need not expressly waive his or her right
to be present during critical stages of the trial and that a failure to
assert that right at the time precludes this Court from reviewing the
error on appeal. Gagnon did not involve a defendant's right to be
personally present during a critical stage of the trial. In Gagnon,
the trial judge held an in-camera hearing, attended by Gagnon's counsel,
to assess a juror's concern on observing Gagnon sketching portraits of
the jury. The Supreme Court characterized the inquiry as a “minor
occurrence” and held that Gagnon's constitutional rights had not been
violated by his nonappearance at a non-crucial stage of the proceedings.
Gagnon, 470 U.S. at 527, 105 S.Ct. at 1484-85.
¶ 38 Third, while it is true that defense counsel
consented to allowing the Judge to enter the jury room and converse with
the jurors off the record, that this situation occurred at all was to
convenience the State because the prosecutor was worried that allowing
the jurors to continue with their deliberations would jeopardize the
verdict he thought they had already reached on one of the three counts.
The prosecutor did not want the Judge to bring the jurors back into
open court to receive the alternate verdict forms. Rather, the
prosecutor wanted the Judge to give the jurors the forms without their
having to leave the jury room. The record discloses the following
THE PROSECUTOR: It was not my intent to have the
jury removed from the jury room. I thought maybe we would have them
submit the verdict form signed back to you, whichever one it was, and
then we would assemble them.
THE COURT: Okay.
THE PROSECUTOR: The point is, I think we want to
make clear that the Allen instruction would only be germane or relevant
to those counts that have been decided. It has nothing to do with the
one they have already reached a verdict on.
THE COURT: Right. Let them return a verdict and
THE PROSECUTOR: “Go back and deliberate on your
other two counts.”
THE COURT: Well, however we proceed, what we need to
do first is have them return the verdict that they do have. They can
do that on the form they have got. If we send them back, we could send
them back with separate verdict forms on the other two.
THE PROSECUTOR: I guess my whole point is, we didn't
want them negotiating or determining or deciding on anything except the
two counts they have.
Again, we believe that highly-protected, fundamental
constitutional rights deserve more safeguard than to be off-handedly
waived as a matter of convenience to counsel.
¶ 39 Furthermore, contrary to the dissent's
suggestion that the rule we set forth in this case would “potentially
impose itself on each sidebar conference,” our opinion here deals with a
discrete error-i.e., the Judge entering the jury room while the jury is
present, without the presence of the defendant, counsel and the court
reporter, and without a contemporaneous, personal, knowing, voluntary
and intelligent, on-the-record waiver by the defendant of his rights to
be present at a critical stage of the trial and to a public trial. If
this rule is to be expanded to cover other errors and other rights, as
the dissent fears, then it will be on a case-by-case basis and only
after briefing and argument.
¶ 40 Finally, we have not effectively overruled our
decisions in LaDue and State v. Harris, 1999 MT 115, 294 Mont. 397, 983
P.2d 881, as the dissent suggests. Rather, we have determined that the
waiver rules in those two cases do not apply for the reasons explained
¶ 41 Reversed and remanded for further proceedings
consistent with this opinion.
¶ 42 I respectfully dissent.
¶ 43 Nine months ago, an unanimous panel of this
Court decided State v. LaDue, 2001 MT 47, 304 Mont. 288, 20 P.3d 775,
wherein the Defendant contended that his constitutional trial rights
were violated when the District Court denied his request to call
additional witnesses in his defense. In addressing this constitutional
issue, the Court acknowledged that the matter was governed by
§ 46-20-104, MCA, and § 46-20-701, MCA, which requires that “[a] claim
alleging an error affecting jurisdictional or constitutional rights may
not be noticed on appeal if the alleged error was not objected to ․” and
held as follows:
These statutes make clear that an objection
concerning jurisdictional or constitutional matters must be raised
before the trial court ․ and if the objection is not made it will not be
heard on appeal.
In addition to requiring a timely objection, we have
held that the objection must specify what authority, rule, statute or
constitutional provision might be violated by the court's decision in
order to preserve the issue for appeal; the objector has an obligation
to make the basis for the objection clear to the court so that the
district court has an opportunity to correct itself. State v. Huerta
(1997), 285 Mont. 245, 261, 947 P.2d 483, 493.
LaDue did not raise at trial the constitutional issue
that he raises on appeal, and has therefore failed to preserve the
matter for our review. As he did not raise the issue at trial, he has
waived his right to appeal this issue.
LaDue, ¶¶ 27-30. While the Court makes a passing
reference to LaDue in ¶ 23, it fails to acknowledge the relevance of its
holding to this matter. Although unstated by the Court, LaDue appears
to have been overruled, and further, the statutes and holdings upon
which it relied will no longer bar constitutional claims on appeal which
were not first raised in the district court. The Court does not claim
to review the issue here pursuant to the plain error doctrine. Thus,
by issuing a decision which directly conflicts with LaDue and the
statutes, the Court leaves the law in disarray.
¶ 44 The policy behind the statutes is well founded,
and consistent with federal policy. On similar grounds, the United
States Supreme Court, in United States v. Gagnon (1985), 470 U.S. 522,
105 S.Ct. 1482, 84 L.Ed.2d 486 (per curiam), held that a defendant's
failure to object to his right to be present during all phases of the
trial is a waiver of his right to appeal the issue.
¶ 45 More than failing to object, here the Defendant
consented to the challenged procedure. It was the trial judge who
wanted to bring the jury into the courtroom. After waiting for the
Defendant to arrive so that he could be present for the in-chambers
meeting, the judge discussed the procedure for providing new verdict
forms to the jury. Excerpts from the transcript of the discussion are
THE COURT: Why don't we take that verdict, then if
we want to give them the dynamite instruction and send them back with
separate verdicts on the other two counts that wouldn't include the
count that they returned a verdict on, that would-if we do it the way
you first suggested, then we would have to bring them into the courtroom,
give them these other three sets of verdicts, send them back and have
them fill out one of those and bring them back. This would just make
less shuffling back and forth.
[THE STATE]: It was not my intent to have the jury
moved from the jury room. I thought maybe we would have them submit
the verdict form signed back to you, whichever one it was, and then we
would assemble them.
THE COURT: Does anybody have an objection if I do
that, or would you prefer that to be done on the record in the courtroom,
in which case, we will do that, bring them in and send back the verdict
[DEFENSE COUNSEL]: We have no objection to your
[THE STATE]: State has no objection to the Court
administering them personally to the jury.
(Emphasis added.) Clearly, the defense, with the
Defendant personally in attendance, participated in the discussion
regarding the proposed verdict form exchange, and then specifically
consented to it. “We will not put a district court in error for an
action in which the appealing party acquiesced or actively participated.”
State v. Harris, 1999 MT 115, ¶ 32, 294 Mont. 397, ¶ 32, 983 P.2d 881,
¶ 32. The rule of Harris is, apparently, no more.
¶ 46 The Court finds that the actions of the defense
here do not constitute a valid waiver of the Defendant's trial right
because it was not “an on-the-record knowing, voluntary, and intelligent
waiver” by a fully-advised defendant. ¶ 32.
¶ 47 In Gagnon, the United States Supreme Court
rejected a claim that contact between a trial judge and juror, to which
defense counsel had acquiesced, had not been waived by the defendant's
failure to object. Although Rule 43, Federal Rules of Criminal
Procedure, requires the presence of the defendant at all stages of trial,
the Court held:
We disagree with the Court of Appeals that failure to
object is irrelevant to whether a defendant has voluntarily absented
himself under Rule 43 from an in camera conference of which he is aware.
The district court need not get an express “on the record” waiver from
the defendant for every trial conference which a defendant may have a
right to attend.
Gagnon, 470 U.S. at 528, 105 S.Ct. 1482 (emphasis
added). The United States Supreme Court thus recognized the
impracticality of requiring the defendant to be advised of each right
through an awkward on-the-record procedure each time a trial right is
encountered. While the Court herein does not impose such a waiver
procedure on other constitutional trial rights, I fail to see why other,
equally important rights, would not logically be incorporated by the
Court's waiver rule under the rationale expressed here. In the flow of
a criminal trial, the defendant's rights are to be protected by defense
counsel. Rather than impose an unworkable waiver rule that may
potentially impose itself on each sidebar conference, I would let
counsel do their job. There are remedies if they fail to do so.
¶ 48 I acknowledge the concern regarding judges
appearing in jury rooms. However, finding that the Defendant waived
his constitutional right to be present, and also failed to preserve the
issue for appeal, I would affirm.
already noted at ¶ 28, for the defendant's waiver to be knowing,
voluntary and intelligent, the waiver must be preceded by the trial
court explaining to the defendant, on the record, his or her rights to
be present at all critical stages of the trial and to a public trial.
KARLA M. GRAY, C.J., and TERRY N. TRIEWEILER,
PATRICIA COTTER, JIM REGNIER, W. WILLIAM LEAPHART, JJ., concur