State v. MacKState v. MacK
Glenn A. Mack was charged by bill of information with simple burglary,
According to the evidence adduced at trial, the instant offense occurred in a parking lot adjacent to a New Orleans hotel. The hotel manager saw the defendant park his own car in the lot, then break into a hotel guest‘s car. The guest was notified, and when he went out to the lot he found the defendant rummaging through the glove compartment.
“A. In all cases the court shall charge the jury that:
* * * * * *
(2) It is the duty of the jury, in considering the evidence and in applying to that evidence the law as given by the court, to give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence in the case ...”
Instead, the jury was instructed:
“... You are prohibited by law and your oath from going beyond the evidence to seek for doubts upon which to acquit the defendant, but must confine yourself strictly to a dispassionate consideration of the testimony given upon the trial. You must not resort to extraneous facts or circumstances in reaching your verdict. That is, you must not go beyond the evidence to find facts or circumstances creating doubts, but must restrict yourselves to the evidence that you heard on the trial of this case....”
This portion of the jury charge is clearly wrong.
“I included all of that in my general charge. Of course, there was no special charge submitted on behalf of the defendant, so, he can‘t reserve any error in the judge‘s charge as a result.”
The judge then declined to hear any more argument.
The judge was in error. The defendant is not required to submit special charges before he can effectively make an objection and reserve an assignment of error on an adverse ruling.
The state advances two arguments in support of its position that the instant charge presents no reversible error. First, the state contends that defense counsel‘s objection was untimely because not lodged until after the jury had retired. Second, the state maintains that the judge‘s instructions on reasonable doubt, when read as a whole, provide substantial compliance with
Timeliness of the Objection
Of course, a defendant may not wait until his appeal before he complains of the trial judge‘s failure to comply with
Otherwise, his objection shall be deemed waived. C.Cr.P. 841 .
In the past, this court has held that objections to the judge‘s general charge are untimely if lodged after the jury has retired for deliberations. See, e. g., State v. Jefferson, 379 So.2d 1389 (La.1980); State v. Williams, 366 So.2d 1365 (La.1978); State v. Beard, 312 So.2d 278 (La.1975). These cases are premised on the belief that, once the jury has retired, it is too late for the trial judge to correct his error.
State v. Jefferson, supra, involved a charge given after the jury returned. Defendant objected, in a general way, after the jury again retired to deliberate. We held, not only that the issue was not before us (because of the lack of a contemporaneous objection), but that there was no merit in the assignment. State v. Williams, supra, and State v. Beard, supra, were cited as authority.
The Code of Criminal Procedure of 1928 provided, in article 391 (later preserved in
“... It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.”
We recognize today that trial judges may, and frequently do, recall the jury for further instructions. See
State v. Jefferson, supra; State v. Williams, supra and State v. Beard, supra, are therefore overruled to the extent that they are in conflict with this opinion.
Whether “Substantial Compliance” Occurred
The state contends that the judge‘s instructions on reasonable doubt, when read as a whole, substantially comply with the intent of
This court found that the general charge did not convey the substance of 804 in a straightforward manner. However, the judge had informed the jury that reasonable doubt could be based upon unsatisfactory evidence, and that the jurors were to determine which facts were not proven. Although this charge was found to be less clear and less direct than the statutory language, we held that “... the instructions given by the trial court substantially complied
“... Our approval of the trial court‘s formulation, however, is limited to the particular charge given within the context of the particular instant case. It would have been preferable for the trial court to have read the exact language of Article 804 to the jury, and future use of the general charge used in the instant case could easily result in reversible error. See, State v. Gibbs, 355 So.2d 1299 (La. 1978).” Id.
The state correctly points out that the instant charge, when read as a whole, includes the same statements reluctantly labeled substantial compliance in Henderson. The trial in the instant case occurred a full seven months after Henderson announced our dissatisfaction with unclear and indirect interpretations of
A correct understanding of reasonable doubt is essential in every criminal jury trial. A vital part of that definition is the statutory formulation of
For the reasons assigned, the conviction and sentence are reversed, and the cause remanded to the district court for a new trial.
BLANCHE, J., dissents with reasons.
MARCUS, J., dissents and assigns reasons.
WATSON, J., dissents for reasons assigned by MARCUS, J.
BLANCHE, Justice (dissenting).
I respectfully dissent. This writer would not overrule this Court‘s previous holdings that an objection to the court‘s charge after the jury has retired is untimely. State v. Jefferson, 379 So.2d 1389 (La.1979); State v. Williams, 366 So.2d 1365 (La.1978); State v. Beard, 312 So.2d 278 (La.1974).
MARCUS, Justice (dissenting).
LEMMON, Justice, Concurring in the Denial of Application for Rehearing.
The purpose of the rule requiring that objections to jury instructions be interposed timely is to afford the trial judge an opportunity to correct the error pointed out by the objection. The corollary of the timely objection rule is the concept that a party should not be allowed to remain silent until after the verdict and then complain for the first time that the instructions were improper and prejudicial.1
On original hearing the court held that an objection to a “patently erroneous” jury instruction was not untimely “if made immediately after the jury is retired“. The erroneous instruction given in this case was previously condemned in State v. Gibbs, 355 So.2d 1299 (La.1978). Thus, defense counsel had no reason to anticipate that it would be given.2 Obviously, both respect for the trial court and good tactics would dictate that defense counsel not interrupt the trial court while in the process of instructing the jury. If defense counsel had waited until the end of the instructions and requested that he be permitted to object (and set forth the grounds for his objection) out of the presence of the jury, he would have unquestionably been entitled to do so, and if the trial court had denied him such opportunity, I would unhesitatingly find that the objection was properly preserved. To force defense counsel to object in the jury‘s presence on the ground presented here (and be overruled) would be to compound the damage. Because I perceive little difference between an objection out of the jury‘s presence immediately after the instructions and an objection out of the jury‘s presence immediately after the jury‘s retirement, I joined the opinion of the court and concur in the denial of rehearing.3
It is evident that an objection, to be considered timely, must be interposed at a point in time when the trial judge can effectively correct any error in the instructions. Ideally, the court should conduct a conference with counsel, between the close of the evidence and the delivery of the instructions, at which the judge rules on requests relative to jury instructions and affords counsel an opportunity to make appropriate objections on the record to general and special instructions. Again ideally, the court should afford counsel, after delivery of the instructions, an opportunity to object (at the bench or outside the jury‘s presence) to the general charge, in order that corrections or clarifications be made before the jury retires. However, the Code of Criminal Procedure contains no requirement that the trial judge either conduct such conferences or otherwise afford counsel a specific opportunity to make objections prior to the jury‘s retiring to deliberate.
In the federal system
Unlike
According to the court reporter‘s note, defense counsel in the present case objected to the general charge after the jury retired to deliberate. (Presumably, this was immediately after the jury retired, since the proceedings were still “on the record” when the objection was entered.) The record does not reveal that counsel was afforded any earlier opportunity to object for the record; rather, the record indicates that at the completion of the testimony, the court immediately proceeded into closing arguments and jury instructions and then sent the jury to consider its verdict.
There was no significant difference between an objection just before or just after the jury retired. In either case the judge, if inclined to correct the error, would have had to reinstruct the jury on reasonable doubt. Although defense counsel could have interrupted the jury instructions (and requested retirement of the jury to argue the objection) at some point after the erroneous instruction was read, recalling the jury from the deliberation room at the outset of deliberations would not have caused a significantly greater disruption. In either case, the purpose of the Code‘s timely objection rule was served. The simple way to avoid the problem was for the trial judge to conduct an instruction conference or to otherwise afford counsel an opportunity for objections on the record before the jury retired.
Finally, the erroneous instruction in this case involved fundamental law, and the error deprived defendant of having the jury instructed that a reasonable doubt may arise out of the lack of evidence.