State v. McCullyState v. McCully
The defendant McCully was convicted of possession of marijuana,
After the case was submitted to the jury, it returned and requested that the testimony of Agent Louque, a principal State‘s witness, be repeated to it. The defendant objected, urging undue emphasis on the agent‘s testimony would thus result. Alternatively, the dеfendant wanted the other evidence read also.
Despite the defendant‘s repeated objection, the trial court permitted thе tape containing this agent‘s testimony to be repeated to the jury.1
A clear violation of an express statutory prohibition occurrеd when the trial court permitted, over defense objection, the testimony of the witness to be repeated to the jury after it had retired to thе jury room. Article 793 of the Code of Criminal Procedure provides: “A juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. * * *.”
The explicit prohibition against re-reading of recorded testimony was аdded by the 1966 code. Official Revision Comment (a). The earlier prohibitions2 against access to any written evidence or to any notes of testimony were retained, as was the legislative requirement that jurors should rely upon their memories. The general policy behind all these prohibitions is a fear that the jurors might give undue weight to the limited portion of the verbal testimony thus emphasized. State v. Free-time, 303 So.2d 487 (La.1974).
We are mindful that the overwhelming majority of jurisdictions рermit testimony
The Louisiana legislature has recently re-enforced a traditional prohibition against jury re-examination of trial evidence by the additional express prohibition of Article 793 against re-reading testimony to jurors. We cаnnot ignore this deliberate policy choice and this express enactment by our legislative branch. It is for the legislature to repeal оr modify this prohibition, not for us to refuse to enforce it.
Nor can we characterize this erroneous violation of a specific statutоry prohibition as harmless. For one thing, as “a substantial violation of a ... statutory right“, it cannot under Article 921 of the Code of Criminal Procedure be regarded as harmless. For another, the jury‘s re-hearing of the testimony solely of the chief prosecution witness (see Footnote 1) can only be rеgarded as prejudicial to the accused, accepting the legislative policy which prohibited doing so as overemphasizing such testimony in preference to other testimony in the record.3
To characterize as harmless this express and prejudicial violation of a statutory right is to ignore the legislative mandate and, in effect, to repeal the legislative prohibition. This, we cannot do.
Decree
Accordingly, the conviction and sentence are annulled, and the case is remanded for a new trial in accordance with law.
Reversed and remanded.
SANDERS, C. J., dissents with written reasons.
SANDERS, Chief Justice (dissenting).
Recently, in State v. Freetime, La., 303 So.2d 487 (1974), a majority of the Court reversed a conviction because the trial judge granted the jury‘s request to see defendant‘s written confession after beginning deliberations. I dissented on the ground that Article 793 of the Louisiana Code of Criminal Procedure permits the trial judge, upon the jury‘s request, to send to it a “document” for physicаl examination. I believe that the Code Article was not violated.
In the present case, the repetition of the witness‘s testimony did violate the Code Article. See
The repeated testimony of Agent Louque was not the only dаmaging testimony against the defendant. Carmen Dufrene, another state‘s witness, also testified that the defendant had marijuana in his possession and smokеd it.
Here, there is other conclusive evidence of guilt. I do not think that the repetition
The A.B.A. Standards for Criminal Justice, supra, has addressed the question of prejudice, as follows:
“When a jury retires to consider thеir verdict, their discussion may produce disagreement or doubt or failure of definite recollection as to what a particular witness said in thе course of his testimony. If they request enlightenment on the subject through the reading of his testimony, in the absence of some unusual circumstance, the request should be granted. The true administration of justice calls for such action. When there is a doubt in the minds of jurors as to what a witness said, it cannot be рrejudicial to anyone to have that doubt removed by a rehearing of his testimony. There is no need to chary for fear of giving undue prominenсe to the testimony of the witness. If ... a jury is to be considered intelligent enough to be entrusted with powers of decision, it must be assumed they have sense еnough to ask to have their memories stimulated or refreshed only as to those portions of the testimony about which they are in doubt or disagreеment.”
In my opinion, the error is not reversible, and the conviction should be affirmed.
For the reasons assigned, I respectfully dissent.