*1
Gen.,
David
Leroy,
At the close of the state’s moved for a judgment acquittal biased insufficiency the evidence. This mo- tion was denied. rested Randolph then presenting without any evidence. deliberate, After the jury retired to bailiff informed the judge trial jury wanted the use of a dictionary. request court denied this and thereafter bailiff advised the court that the had a question. The court instructed the bailiff jurors to have the write out their bailiff, give who then was to give it to the court. At this time the court asked the bailiff if he knew the where- abouts of the defendant or his the bailiff did not know. The court subse- quently made the same inquiry of the re- porter and prosecutor’s office. Neither knew, however, as the defendant’s counsel had informed the clerk’s office where found. he could be prosecuting The trial attor- judge’s then went chambers ney where received from the bailiff a with the paper following request sheet written on it: (right “Please define control control) as stated in instruction # 11.” given, Instruction # had read: “In this to warrant a verdict of guilty of OF MORE POSSESSION THAN THREE OUNCES OF MARI- JUANA, you must find evi- from the dence, Skinner, beyond Michael E. a reasonable doubt: Donnelly, Donnelly Fawcett, Boise, & for defendant-appellant. August 1. That on or about appeal Randolph’s 1. This follows second trial. was unable to reach a verdict. ended in His first triаl a mistrial when the *2 “Now, County, In Twin Falls Idaho said think the defendant object should have an opportunity defendant, WIL- The THOMAS communication, is, RANDOLPH, JR., LIAM explain sense that he if he A. exercised control or had the desires, this communica- why particular right marijua- to exercise control over tion his client. That is what prejudiced (3) greater na in an amount than three would have been done if counsel had been weight; ounces net here, through my failure to check knowledge B. had of presence; its clerk, go further my with the or failure to the sub- knowledge C. had defendant, go than I did to find marijuana. stance was opportunity from this prevented “These are the essential elements object now and object. you want to of allegations material the crime of Pos- fine, if wish your argument you make session of More Than Three Ounces of fine. time to consider that’s Marijuana, and the оf Idaho is re- State quired to of these elements prove each talking objection, about a valid “. .. I’m a reasonable doubt. beyond here, me, seems to objection and a valid persons may joint “Two or more have objection be an based on the merits marijuana of if illegal possession each wrong, the defi- of the definition. If it’s thereof, of each has control nition, wrong, jury and then the then it’s knowledge of its and of its na- improperly instruct- certainly has been marijuana.” ture as ed.” hearing 11-12. After Record, pp. Vol. matter judge, discussing The after respective coun- arguments by as made attorney, personally
with the prosecuting
sel,
order of the trial court that
it was the
typed
following reply
on the same sheet
denied.
the motions be
“The
paper
jury:
of
as received from the
denial,
phrase
physical custody
or the
argu-
from this
Randolph appeals
means —
gave
physical custody.”
judge
The
then
very
of the
nature of
ing that because
paper
to the bailiff with directions to
communica-
deliberating jury’s request,
room,
place
take it to the
and to
it in
have
necessarily
tion from the court
the case file
returned
he was
jury,
after
it.
on the
had an effect
and denied a fair and
thereby prejudiced
This was done.
trial,
must
and that his conviction
impartial
The
a verdict
jury subsequently returned
be reversed. The state submits
therefore
learning
of
of the communi-
guilty. Upon
correctly
ruled
the trial
Ran-
cations between the court and
prejudice before a
Randolph had to show
judgment
filed motions for
notwith-
and,
granted
arguendo,
trial could be
new
verdict,
mistrial, or,
standing the
for
pre-
communication created
even
alternative,
hearing
for
At the
a new trial.
of
the definition
sumption
prejudice,
motions,
on
the trial
acknowl-
these
and thus
given was correct
“control” as
conduct in so
edged
impropriety
of his
presumption.
rebuts the
communicating
with the
in the absence
dealing
followed in
procedure
to be
counsel,
or defendant’s
defendant
request
supplemental
for a
with a
prej-
rejected
presumption
an automatic
is set forth in
struction in a criminal case
udicial error and indicated that he would
as follows:
I.C.
19-2204
unless a
grant any
decline to
the motions
delib-
retired for
showing
prejudice
to the defendant
“After the
eration,
be-
brought
any disagreement
communication was
if there is
caused
or if
testimony,
The trial
as to the
to the attention of the court.
tween them
any point
they
desire to be informed
provided
then
defendant’s
cause,
objection
arising
to make
of law
them into
He
conduct
showing
prejudice.
require
stated:
the officer to
present a
court. Upon being brought
appears
into
that the communication could not
the information required
must be
have had any
jury.
effect on the
of,
to,
in the presence
or after notice
the we do
require
appli-
not find this to
literal
prosecuting attorney and the defendant
cation.
literal application
Such
would re-
or his
after
sult in a
se
reversal
all such commu-
*3
called.”
nications,
approach
rejected
an
already
by
Court in Rueth : “A
requir-
se rule
This absolute proscription of communica-
ing
appear
reversal in all instances would
tion between judge
jury except
under
207,
be unwise.”
Id.
be harmless There no oth- appearing adhering principles error. the Court error, er incident of reversible we therefore in Rueth. Other than that espoused were affirm decision of district court. principles fails comprehend the Court and here
which were reaffirmed result, today’s opinion at the wrong arrives BAKES, McFADDEN, J., J., con- C. example of an is a commendable cur. attempt con- court’s to achieve desirable SHEPARD, J., the result concurs sistency in law. decision State, supra, J., Rueth v. based on (Shepard, needs to emphasis Some additional dissenting). Judge Cunningham placed on views BISTLINE, Justice, dissenting. procedures regard remedying *4 First, must be employ. to determined Although not majority a the Court did recognize he to the quick noted that join opinion in an which I earlier authored case, conforming to the statu- impropriety in this to ob- of not gratifying indeed serve that now members of and that did not have tory provisions1 there are four substance, Judge length guess Cunningham to what was at well discuss so I some detailing perplexity saying, probably, including his to counsel: I’m court this the court, spent great talking they a deal more time “If counsel will refer to 94 A.L.R. regarding theory distinguished will find an exhaustive about as from sub- annotation specific question. this I it’s fair to think stance. general improp- case, that state the law is it’s particular question that “In this there’s no any er for communication to be had between my in mind the should be but what defendant jury, verbally the court and either or written object any given right the to to communica- de- communications the absence of the tion, shortly give and I defendant will the fendant or is defendant’s counsel. There But, right. me that in this it seems to an even as to annotation when a defendant presuming that it awful lot of to takes an right, and his waives this cases counsel some communication, ques- presume the that the they they’re right hold that waive not this if answer, it has tion and the manner in which courtroom, any in the but determina- without done, any prejudiced the been defendant my part tion on the as to whether or not way, accept theory the so I the that don’t defendant and his counsel by the waived presumes, for in this mere act itself instance think, absence, say their I’ll I and that going require to case I’m not to the defendant find, conduct, would lined, the as I have out- that saying prove prejudiced, that I’m he was all improper. not is That should there him, prejudice is I cannot that it did see have been between the communication face, particularly presumptive in view on its or either or verbal. written of the facts which I have stated. course, comes, question “The that next “Now, I I should said think defendant is, grant for a is this to motion sufficient object an have nication, to to the commu- mistrial, judgment, new or motion for is, object in the that he that sense requested. of the that motions defendant has Court, desires, why explain to if he shade, “You can find about an nuanc- prejudiced particular his communication es, you want to answers to this if That is what would have been done client. short, in this In hav- annotation. here, my through and fail- been you ing gone parade ground, can all over the clerk, my to ure to check with the failure your pick justify and it. There favorite case defendant, go go to find the further than I did holding prejudice is are cases presumed; and harm prevented opportunity to from this he was holding are cases that there there you object. now and make want presumption. is no such holding There are cases fine, you your argument time to con- show, wish up that it’s to the defendant to thoughts? your What are that’s fine. sider But, prove, by weight I and to what evidence now, whole, I on the as sits know, prove prej- don’t that there was motion, deny say, I would because as udice. follow, line and do believe would follow grated in “This leads to a matter that has decisions found this annotation my sometime, quite craw that is that and pre- is no courts, these facts there shows under past particularly in the prejudiced sumption courts, the defendant wаs great spent time a more have deal presumption or some a considering they until there is such than on con- the rules have weight brought sidering might to the attention of Court have effect rules deny prejudiced, I my opinion, a while that he was defendant. It’s candid theory, I motion.” it’s well to discuss think it should benefit of the Rueth which had “After the have retired for delib- not then been handed down.2 eration, if is be- any disagreement there or if testimony, tween them as Where I differ from the other members point on any desire to be informed they understanding in the cause, arising of law application steps 3 and 4 of the Rueth into the officer to conduct them require four-step procedure. particular, ap- our brought into Upon being court. parent disagreement narrows down to the required the information must be situation where the communication to, of, or after notice shown, here, ensuing as is so con- prosecuting attorney the defendant cern is appears whether it to have been of or his or after such a character that it have affected added.) called.” the jury. Examples of mere technical er- in judge-jury rors readily communications Here, unlike we deal with a known coming (and to mind would include preserved communication—but it isn’t been include): known to a note or verbal communication, it is an instruction merely inquiry to the judge asking permission to law, from the court as to the and furnished home; call an inquiry from the foreman on a whereon particular point complaining of the heating system, or of jurors enlightenment. wanted further the air conditioning; an inquiry as din- said, As a matter of law it cannot be *5 ner arrangements; an inquiry as to hours step procedure, 4 of the to have four-step deliberation; of ad infinitum. com- Such not had effect. any munications, course, “may affect” the That is contention. exactly Randolph’s jury in a sense of having some adverse or hand, state, persuaded on the other has beneficial affect on jur- some or all of the instruction, the although Court that ors, personally, but I expect any would not given to the after it had retired to serious argument that “may affect deliberate, in of a given and violation statu- jury” such applicаtion personal in a tory designed preserve mandate context. deliberations, correct, tegrity was What that language is meant to apply to and, so, being where is the harm? is communications may which affect practicing that most attorneys, submit jury in its deliberations. Any contention to experience even of little in the criminal the contrary would be pure sophistry. field, trial will have little trouble in perceiv- point From that simply stеps one to the ing argu- the fallaciousness of state’s instruction, next. An in writing, sent from ment and the Court’s rationale. the trial court to jury, comprised that, enough following It is not such a twelve members who have taken an oath to occurred, violation here defense instructions, follow the court’s can hardly given are an after-the-fact be said to be other than a communication of instruction, attempt see the and to demon- а character which may have affected the strate error inherent therein. Nor will reaching in its simply verdict. More put in myself attempt that box and put, the test is whether the communication out, doing. climb as counsel here avoided may And, affected the verdict. only answer is that an instruction to the instruction, Perhaps goes, as far as it jury as a matter of law is unarguably such underlying is not incorrect. Is that a communication. It is exactly that classifi- principle of Rueth Is ? the end of cation of communication which specifically appellate I think inquiry? not. Had the must given with, not be unless there is been complied statute defense coun- compliance full with sel, I.C. 19-2204: thing, § for one could have asked for and Judge Cunningham I would surmise that had it been available. granted would have a new trial on the basis of with counsel from Randolph’s given precluded been time to furnish the it also instructiоn, respect instructions. For cer- with clarifying arguing additional tain was not all that com- instructions. As the instruction evidence other Bland, request- the definition law has its best plete: supplying in was noted “[t]he ed, many re- highest the court wrote in terms and commands observance find in need of lawyers inviolability trial would also sanctity its spect where to-wit, custody or the defining, “physical recognized uniformly is provisions all its custody.” “Physical custo- physical interest of the courts. The and enforced problem. no dy” probably maintaining its ad- large people what, physical is the exactly, always But reproach above ministration custody? personal private if not exceed equal add- any litigant.” interest asked, And, for the may well be who ed.) P. at 782-83. I.C. 9 Idaho at state or who on the court can absolute mandatory in its terms. 19-2204 is all of the confidence assure to them? jurors had the instructiоn read is that main contention The state’s possibility probability There is both a in that harmless was communication attending more that one or court was given by the definition of control needs, simply were not physical to their set forth in the rule as correct. musings. idle interested. are not Such stating that inapposite, Bland and Rueth way. There is a better only can be harmless a communication such effect on have had where it cоuld not Noble, 155 As stated in United States The issue the verdict. 1946): (3d F.2d Cir. correct, whether the instruction the defend- “For not are counsel and may have af- whether the communication ant entitled to hear the instructions Jus- by Chief As stated fected the verdict. incorrect, are they may, order that Supreme the California Traynor tice prompt to them and secure their *6 Rueth, approval quoted judge, correction the trial whenever suspect below is judgment “the important to make as certain as equally more than a which is an error has occurred member of the may be that each a sub- technicality’ and which affects ‘mere received the instructions. It actually right and ‘unless stantial that all instructions to therefore essential that highly probable judge orally court believes given by the trial judgment, did not affect error3 of counsel and the de- ” The Riddle added.) Traynor, shоuld reverse.’ fendant.” (1970), at 100 quoted Harmless Error 35 bar, wholly in the face of a In the case at n.2, P.2d at 80 n.2. The Idaho at 208 inferentially we are irregular proceeding may that be held type of communication that the belated instruc- asked to assume fol- in Rueth as harmless was addressed read to the that all heard tion was lows: an instruction of recognized all it as binding upon them. and hence should be reluctant to overturn the “[W]e present case followed procedure proce- results of a where the lengthy trial ability review the precluded defendant’s dural violation amounts to a mere techni- propriety, comment on its request, jury’s cality, proce- or where it is clear that the or alternative instruc- additional suggest dural violation occurred after tions, further in- or have the entire verdict, had reached its or where actually importantly, court. Mоst open structed in could in no way the misconduct involved to deliberate applies it has retired after used 3. The word “error” as here 19— procedure prejudicial violation of I.C. irregular and not to be a erroneous or cannot principle. some- I find this Rueth was itself an erro- whether the communication least, observing say Undoubtedly amazing, the other mem- neous statement. opinion of the Court’s precedential effect into ra- bers of the tionalizing mislead themselves devastating. instruction sent error-free could well be have prejudiced even have bene- losing
fited the party.” 100 Idaho
The communication case
cannot be said to amount to a mere techni-
cality, can nor it be said that it could not had effect. This instruction went
to the primary trial, issue at whether Ran- possession or control of the mari-
juana. The fact the jury requested
this definition shows were con-
cerned about whether had con-
trol, and, being given definition,
resolved the against issue Randolph.
this regard issue, although nearly iden-
tical to stronger favor of rever-
sal. There the gave no in- further
structions, removing from contention
claim as to the accuracy of a belated
struction. Were we to have adopted in that
case the state’s pushed us, now theory upon
we would have held that there was no error
simply because the court did not further
instruct. Since the improper communica-
tion here cannot be held to be harmless
error, judgment should be reversed.
STATE of Plaintiff-Respondent,
Harvey BYERS, Wilson
Defendant-Appellant.
No.13142.
Supreme Idaho.
April
Rehearing May 26, Denied Jr., Pocatello, Armstrong, L.
Howard Utah, J. Yengich, City, Salt Lake Ronald defendant-appellant. for Gen., Lynn Leroy, Atty. David H. E. Thomas, Gen., Boise, Atty. Deputy plaintiff-respondent.