State v. LewisState v. Lewis
Bob E. Lewis (defendant) was charged with distribution of marijuana,
Defendant was arrested in connection with an undercover drug surveillance operation. On December 9, 1989, Iberville Parish Sheriff‘s Officer James Gales was working undercover and wearing a hidden wire used to tape-record conversations. Before he went to the Hop-N-Shop, where the surveillance began, Detectives Edward Engolio and Howard Marionneaux, utilizing standard procedure, sеarched Gales to make sure there was no contraband in his possession. The detectives gave Gales money to purchase drugs аnd then dropped him off at the Hop-N-Shop. He met Benny Joe Carringone there and talked to him briefly. Defendant, who Gales knew as Carringonе‘s brother-in-law, approached and joined the conversation. Engolio and Marionneaux could see and hear the men during this convеrsation. Carringone asked Gales if he needed a “30.” During the trial, testimony indicated this phrase
At the trial, Carringone testified that his girlfriend was defendant‘s sister, but he denied referring to defendant as his brother-in-law. Carringone stated that defendant was a casual friend. Carringone further testified that, although it was possiblе he could have been seen having a conversation with defendant at the Hop-N-Shop, he did not recall seeing Gales there. During his testimony defendant denied seeing Gales at the Hop-N-Shop parking lot on December 9, 1989, but stated he could have seen Carringone.
EVIDENCE IN DELIBERATION ROOM
Defendant contends that the trial court improperly granted a jury request and allowed the jury during its deliberation to listen to the taped conversation between Gales and defendant. During the trial defendant objected to the granting of this request1 and, following the trial, filed a motion for new trial based upon the same grounds as the objection.
Louisiana Code of Criminal Procedure article 793 provides:
A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes оr to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discrеtion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.
The Louisiana Supreme Court has recognized that jurors may, during deliberations, inspect physical evidence in order to arrive at a verdict but cannot inspect written evidence to assess its verbal contеnts. State v. Perkins, 423 So.2d 1103, 1109 (La 1982); State v. Freetime, 303 So.2d 487, 489 (La.1974). The general rule, as expressed by
The legislature has made an express choice in this instance of denying access to written evidence during the deliberations, except for the sole purpose of physical examination. This court must follow the explicit prohibition of article 793. As stated by the Louisiana Supreme Court in State v. Freetime, 303 So.2d at 488-89:
The policy choice thus represented is to require jurors to rely on their own memory as to verbal testimony, without notes and without reference to written evidence, such as to depositions or transcribed
testimony. The general reason for the prohibition is а fear that the jurors might give undue weight to the limited portion of the verbal testimony thus brought into the room with them....
Furthermore, the Louisiana Supreme Court has interpreted article 793 to absolutely prohibit the repetition of testimony to the jury.2 State v. Adams, 550 So.2d 595, 598-99 (La.1989); State v. Johnson, 438 So.2d 1091, 1102 (La.1983); State v. Perkins, 423 So.2d at 1109-1110. Moreover, that court has found reversible error fоr violations of the rule expressed in article 793. See, e.g., Adams, 550 So.2d 595 (reversible error for trial court to permit jury to view the tapes and transcript of defendant‘s confession during its deliberations); Perkins, 423 So.2d 1103 (trial court committed reversible error by allowing jury to view a copy of defendant‘s statement in the jury roоm); and Freetime, 303 So.2d 487 (conviction reversed where trial court allowed jury to review defendant‘s confession during deliberations).
The jury was permitted during its deliberations to have a tape recorder and tape of the conversation between the undercover officer and defendаnt recorded the night of the offense. The colloquy between the court and jury is significant:
THE COURT: Do you have a request?
FOREPERSON: Yes, we would like the tape.
THE COURT: Give them the tape and [the] recorder.
We can see no difference between this cirсumstance and allowing a jury to view a transcript of a defendant‘s statement or confession or a transcript of a witness‘s testimony. Obviously, the jury was allowed to do more than make a physical examination of the tape when the jury was also given a tape recordеr with the tape. Thus, for the above reasons, we conclude that the trial court committed reversible error when it permitted the jury to have the tape and a tape recorder during its deliberations.
For these reasons, we reverse defendant‘s conviction and sentenсe and remand this case for a new trial.
CONVICTION AND SENTENCE REVERSED AND REMANDED.
Notes
The transcript shows that defendant objected after the court had given the jury the tape and recorder and it had retired to deliberate further. In his brief, defense counsel states:
The State, in the instant case, contends that no timely objection was made by defense counsel. This is not true. Defense counsel purposely did not object in the presence of the jury because this would tend to convey a message to the jury that the defense counsel was trying to hide something by not allowing them to hear the tape. Hоwever, as soon as the jurors left the room, the objection was made on the record and it is submitted that such objection was timely made.