State v. Randolph , 102 Idaho 153 ( 1981 )

DONALDSON, Justice.

On August 13, 1977, police, acting pursuant to a search warrant, seized two boxes, containing approximately fifty pounds of marijuana, from the trunk of a car driven by appellant Randolph. Subsequently, Randolph was charged with possession of marijuana in violation of I.C. § 37-2732(e) and the matter was brought to jury trial.¹

At the close of the state’s case, Randolph moved for a judgment of acquittal biased on the insufficiency of the evidence. This motion was denied. Randolph then rested without presenting any evidence.

After the jury retired to deliberate, the bailiff informed the trial judge that the jury wanted the use of a dictionary. The court denied this request and thereafter the bailiff advised the court that the jury had a question. The court instructed the bailiff to have the jurors write out their question and give it to the bailiff, who then was to give it to the court. At this time the court asked the bailiff if he knew the whereabouts of the defendant or his counsel, but the bailiff did not know. The court subsequently made the same inquiry of the reporter and the prosecutor’s office. Neither knew, however, as the defendant’s counsel had informed only the clerk’s office where he could be found.

The trial judge and the prosecuting attorney then went to the judge’s chambers where the judge received from the bailiff a sheet of paper with the following request written on it: “Please define control (right to control) as stated in instruction # 11.” Instruction # 11, as given, had read:

“In this case, to warrant a verdict of guilty of POSSESSION OF MORE THAN THREE (3) OUNCES OF MARIJUANA, you must find from the evidence, beyond a reasonable doubt:

1. That on or about August 13, 1977

2. In Twin Falls County, Idaho

3. The defendant, THOMAS WILLIAM RANDOLPH, JR.,

A. exercised control or had the right to exercise control over marijuana in an amount greater than three (3) ounces net weight;

B. had knowledge of its presence;

C. had knowledge that the substance was marijuana.

“These are the essential elements or material allegations of the crime of Possession of More Than Three (3) Ounces of Marijuana, and the State of Idaho is required to prove each of these elements beyond a reasonable doubt.

“Two or more persons may have joint illegal possession of marijuana if each has the right of control thereof, and each has knowledge of its presence and of its nature as marijuana.”

The judge, after discussing the matter with the prosecuting attorney, personally typed the following reply on the same sheet of paper as received from the jury: “The phrase means — physical custody or the right to physical custody.” The judge then gave this paper to the bailiff with directions to take it to the jury room, and to place it in the case file after the jury returned it. This was done.

The jury subsequently returned a verdict of guilty. Upon learning of the communications between the court and jury, Randolph filed motions for judgment notwithstanding the verdict, for mistrial, or, in the alternative, for a new trial. At the hearing on these motions, the trial judge acknowledged the impropriety of his conduct in so communicating with the jury in the absence of the defendant or defendant’s counsel, but rejected an automatic presumption of prejudicial error and indicated that he would decline to grant any of the motions unless a showing of prejudice to the defendant caused by the communication was brought to the attention of the court. The trial judge then provided defendant’s counsel with the opportunity to make objection and present a showing of prejudice. He stated:

“Now, I said I think the defendant should have an opportunity to object to the communication, that is, object in the sense that he explain to the Court, if he desires, why this particular communication prejudiced his client. That is what would have been done if counsel had been here, and through my failure to check with the clerk, or my failure to go further than I did go to find the defendant, he was prevented from this opportunity to object. If you want to object now and make your argument fine, if you wish time to consider it, that’s fine.

“. .. I’m talking about a valid objection, and a valid objection here, it seems to me, would be an objection based on the merits of the definition. If it’s wrong, the definition, then it’s wrong, and then the jury certainly has been improperly instructed.”

Record, Vol. 2, pp. 11-12. After hearing arguments as made by the respective counsel, it was the order of the trial court that the motions be denied.

Randolph appeals from this denial, arguing that because of the very nature of the deliberating jury’s request, the communication from the court necessarily may have had an effect on the jury, that he was thereby prejudiced and denied a fair and impartial trial, and that his conviction must therefore be reversed. The state submits that the trial court correctly ruled that Randolph had to show prejudice before a new trial could be granted and, arguendo, even if the communication created a presumption of prejudice, the definition of “control” as given was correct and thus rebuts the presumption.

The procedure to be followed in dealing with a jury request for a supplemental instruction in a criminal case is set forth in I.C. § 19-2204 as follows:

“After the jury have retired for deliberation, if there is any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney and the defendant or his counsel, or after they have been called.”

This absolute proscription of communication between judge and jury except under provided conditions has been expanded upon by this Court’s recent adoption of a four-step procedure to govern out-of-court judge-jury communications:

“To summarize: (1) It is for the losing party, in the first instance, to show that there was some communication off the record and not in open court. (2) The burden then shifts to the winning party to show what the communication was. If he cannot show what it was, the verdict must be set aside. (3) If he can show what the communication was but it appears to have been of such a character that it may have affected the jury, then the verdict must be set aside. (4) Only if it is made clearly to appear that the communication could not have had any effect, can the verdict be allowed to stand.” (emphasis deleted).

Rueth v. State, 100 Idaho 203, 209, 596 P.2d 75, 81 (1978).²

Applying this four-step procedure, we note that there is no burden placed upon Randolph to show prejudice. Indeed, the burden has been shifted to the state. Accordingly, we note also that the first two steps of the procedure are not at issue here. Randolph has shown the improper communication and the state has shown definitely what the communication was. The question becomes whether the communication affected the jury. We hold that the state has clearly demonstrated that the communication did not affect the jury in any manner other than harmless, and therefore the verdict shall stand.

We are aware that the Rueth standard on its face precludes affirmation except where it appears that the communication could not have had any effect on the jury. However, we do not find this to require literal application. Such literal application would result in a per se reversal for all such communications, an approach already rejected by this Court in Rueth : “A per se rule requiring reversal in all instances would appear to be unwise.” Id. at 207, 596 P.2d at 79. We agree with the sentiments expressed by Chief Justice Traynor of the California Supreme Court that automatic reversal would engender “public disaffection with the judicial process” and is a lazy way of review which would “insidiously lower the standards of justice.” R. Traynor, The Riddle of Harmless Error 35, 49 (1970). However, we do not simply pay lip service to the Rueth procedure and then tacitly discount it by our holding. Rather, we find that the application of Rueth must necessarily be tempered by countervailing considerations of this Court’s appellate responsibility to determine whether the error below was harmless or prejudicial. Accordingly, in the instant case, we find that although it was error for the trial judge to provide as he did the definitional information, the error is not of sufficient gravity to warrant reversal. It is uncontroverted by the respondent that the information provided was a correct definition. The effect of this correct definition being before the jury under the facts of this case, we find not to be prejudicial. Differing circumstances, such as those found in State v. Bland, 9 Idaho 796, 76 P. 780 (1904), wherein the judge made a personal, off the record appearance in the jury room, or as found in Rueth, supra, wherein all written record of the communication was destroyed, would compel a reversal under an application of the Rueth four-step procedure. However, such circumstances are not present in the instant case. The record of the communication is clear. The information provided is correct. Under these circumstances, we find the error in transmission of that information to be harmless error. There appearing no other incident of reversible error, we therefore affirm the decision of the district court.

BAKES, C. J., and McFADDEN, J., concur. SHEPARD, J., concurs only in the result based on Rueth v. State, supra, (Shepard, J., dissenting).

1 . This appeal follows Randolph’s second trial. His first trial ended in a mistrial when the jury was unable to reach a verdict.

2 . Although Rueth is a civil case, it is applicable in the present criminal context. As we noted in Rueth, “there is no ‘double standard that can be applied to the sanctity of a jury’s deliberations based on criminal or civil process.’ ” 100 Idaho at 209 n.4, 596 P.2d at 81 n.4 (quoting State Highway Commission v. Dunks, 166 Mont. 239, 531 P.2d 1316, 1318 (1975).