Summary
concluding that the trial court's communication with the jury constituted harmless error
Summary of this case from State v. TillmanOpinion
No. 73-587
Decided July 3, 1974.
Criminal procedure — Charge to jury — Communication by judge to jury in absence of accused — Nonprejudicial error, when — Offer to reread part of charge — After jury requests elaboration — Election by jury against offer — Appeal — Claim of error not raised in Court of Appeals — Not considered.
1. A defendant in a criminal case has a right to be present when, pursuant to a request from the jury during its deliberations, the judge communicates with the jury regarding his instructions.
2. Where the jury, during its deliberations, requests elaboration of the court's instructions, and the judge, out of the presence of the defendant, communicates with the jury concerning his instructions but offers only to re-read portions of his original instructions which the jury elects not to hear, the error committed by the judge in communicating with the jury in the absence of the defendant is harmless error not prejudicial to the defendant.
APPEAL from the Court of Appeals for Montgomery County.
Police staked out a grocery store for four successive Fridays, beginning on October 29, 1971. Police officers observed a white Cadillac following the store manager from a bank to the store. At various times on those dates defendant-appellant, Walter W. Abrams, William Tincher and Allen Gibson were observed in the Cadillac by police.
On December 3, police observed Gibson and Timothy Neary in a red Chevrolet, which was driven into the store's parking lot and parked next to an alley. When the store manager arrived from the bank and started into the store, the Chevrolet was driven alongside him and Neary thrust a shotgun out of the car window. In compliance with Neary's command, the manager threw the money he was carrying into the car.
The white Cadillac had been seen by the police earlier on December 3 in the vicinity of the bank, occupied by Tincher, Abrams and Neary, and after the robbery it followed the red Chevrolet. The police succeeded in stopping both the Chevrolet and the Cadillac and arresting their occupants. Defendant-appellant was a passenger in the Cadillac.
Abrams, Tincher, Neary and Gibson were indicted for armed robbery. Gibson and Neary pleaded guilty. Abrams was convicted by a jury of the lesser included offense of robbery.
In the Court of Appeals, Abrams filed in a separate document, apart from his brief, 16 assignments of error. In his brief, however, he set forth only three assignments of error: (1) That the trial court erred in not granting his motion for directed verdict; (2) that he was denied a "constitutional right when he was denied his fundamental privilege to be present in person when additional instructions were given by the trial judge to the jury"; and (3) that the judgment was against the manifest weight of the evidence.
The Court of Appeals found each of the three foregoing assignments of error to be without merit and affirmed the judgment of conviction.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Lee C. Falke, prosecuting attorney, and Mr. Randal A. Anderson, Jr., for appellee.
Mr. Jack H. Patricoff, for appellant.
Seven propositions of law are presented by appellant in this appeal. One, relating to appellant's motion for diminution of the record in the Court of Appeals, is moot as a result of the granting of that motion by the Court of Appeals. Of the other six propositions of law, only one was assigned as error in the Court of Appeals, briefed and considered by that court.
This court is not required to "consider a claim of error that was not raised in any way in the Court of Appeals and was not considered or decided by that court." Toledo v. Reasonover (1965), 5 Ohio St.2d 22, 213 N.E.2d 179; State v. Lisiewski (1969), 20 Ohio St.2d 20, 24, 252 N.E.2d 168, State v. Phillips (1971), 27 Ohio St.2d 294, 302, 272 N.E.2d 347. Therefore, this court will consider only that proposition of law which presents an issue assigned as error and considered by the Court of Appeals.
Appellant frames that issue as follows: "A trial judge in a felony trial should not be permitted to have a secret communication with the jury during deliberations in the absence of defendant or his counsel, concerning additional instructions which the jury had requested."
The record shows, in an affidavit of the trial judge which was filed in the Court of Appeals pursuant to that court's allowance of appellant's motion for diminution of the record, that during jury deliberation the trial judge "received a question from the jurors requesting further elaboration of the court's charge on aiding and abetting. The court, out of the presence of counsel for defendant or the court reporter, advised the jurors that the only further instructions he would give them would be to re-read his original charge on that subject, and the jurors elected not to have the original charge re-read to them."
Kirk v. State (1846), 14 Ohio 511, and Jones v. State (1875), 26 Ohio St. 208, are cited by appellant in support of his contention that the private communication with the jury by the trial judge constituted denial of a fair trial.
The syllabus in Kirk states:
"A court or judge has no right to communicate with the jury respecting the charge of the court, after the jury has retired, except publicly, and in the presence of the accused. To do so is good cause for a new trial."
The holding in Jones is to the same effect. The court in that case stated, at page 210:
"It was the right of the plaintiff in error to be present at each and every instruction given to the jury as to the law of the case." Jones was approved and followed in State v. Grisafulli (1939), 135 Ohio St. 87, 19 N.E.2d 645.
The foregoing authorities establish that the trial judge in the instant cause erred in communicating with the jury out of the presence of appellant.
The question remains whether that error prejudiced appellant's right to a fair trial.
As indicated above, the only evidence of record relative to the communication between the trial judge and jury is the judge's affidavit which was made a part of the record in the Court of Appeals upon appellant's own motion. That affidavit reveals that the trial judge neither gave the jury any additional instructions nor explained those already given. This being the case, appellant's right to a fair trial was not prejudiced by the communication between the judge and jury. Cf. United States v. McNair (C.A.D.C. 1970), 433 F.2d 1132. The error, therefore, was harmless beyond a reasonable doubt, Chapman v. California (1967), 386 U.S. 18, and does not constitute grounds for reversal.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
HERBERT, STERN and P. BROWN, JJ., concur.
CORRIGAN, CELEBREZZE and W. BROWN, JJ., dissent.
I am unable to associate myself with the opinion and judgment of the majority for the reason, merely, of the facts expressed by the trial judge in his affidavit filed in the Court of Appeals on April 6, 1973, and by order of that court made a part of the proceedings in the trial of appellant. Those facts make clear that, during the jury's deliberations and in response to an inquiry from them, the trial judge discussed a matter of law with the jury out of the presence of counsel for defendant or the court reporter. Aptly, Sir Thomas More once observed, "This poynte is . . . metely playn inough."
On the state of the record in this case, I am unable to join with the majority in deciding that the error complained of is harmless.
As was stated in Jones v. State (1875), 26 Ohio St. 208: "It was the right of the plaintiff in error to be present at each and every instruction given to the jury as to the law of the case. This right was denied to him * * * and without inquiry as to the correctness of the instruction so given in his absence, it will be presumed that he was prejudiced thereby." (Emphasis added.)
Further, in State v. Grisafulli (1939), 135 Ohio St. 87, this court determined that a harmless error statute could not be applied, where, as here, it is a situation "* * * which discloses the clear disregard of a constitutional prerogative."
A court should not communicate with a jury in their deliberation room, nor should a court give the appearance by any action that any part of a trial is veiled in secrecy.
In my opinion, this is a situation where the possibility of harmless error cannot be considered because the probabilities for prejudice are so great as to mandate reversal.
I fully concur in the dissenting opinion by Justice Celebrezze because, in my opinion, the most crucial period of a trial is when the jury is deliberating its verdict. Any error occurring at that critical deliberation stage should be presumptively prejudicial, and therefore reversible error.
In this case, the trial judge communicated with the jury outside the presence of defendant or defense counsel. The majority concedes that error intervened, but is satisfied that the judge's communications to the jury were limited and insignificant, and therefore "harmless."
The simple fact that the jury summoned the judge leads me to infer that the jury was uncertain or confused about a significant aspect of the case. In that light, perhaps additional instructions were in order to aid in clearing up the confusion. However, neither defendant nor his counsel were present to urge that the jury's questions be answered. Defendant was without the assistance of counsel at this most critical stage of the case. "The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States (1942), 315 U.S. 60, 76.
Accordingly, I dissent.