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PG IX(E) Appellate Review Of Supplemental Instructions.
PG IX(E)(1) Whether Informal Mid-Deliberation Exchange Between Judge And Juror Counts As Jury Instruction.
Any mid-deliberation exchange between the judge and jurors should count as a jury instruction even if it was “rather informal” and occurred after the formal charge. (See Shafer v. South Carolina (2001) 532 US 36 [149 LEd2d 178; 121 SCt 1263, 1274] [labeling the trial judge’s answer to the jury’s mid-deliberation question an “instruction” and criticizing it because it “did nothing to ensure that the jury was not misled”]; Bollenbach v. United States (46) 326 US 607 [90 LEd2d 350; 66 SCt 402] [reversing and remanding because a “supplemental instruction” from the trial court following a question by the jury was “simply wrong”]; Belmontes v. Woodford (9th Cir. 2003) 350 F3d 861 [rejecting government’s argument that “rather informal” mid-deliberation exchange did not count as jury instruction]; McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 836, overruled in part on other grounds, Weeks v. Angelone (2000) 528 US 225 [145 LEd2d 727; 120 SCt 727 [explaining that the trial judge’s duty to instruct the jury adequately “continues until a verdict is reached and returned. As they work towards a verdict, the jurors must stay in the channel charted for them by state law. To this end, they may need ongoing guidance”].)
PG IX(E)(2) Cognizability Of Error In Supplemental Instructions.
The correctness of the court’s reinstruction of the jury in response to a jury inquiry should be reviewable, even without an objection, pursuant to PC 1259. (People v. Thompkins (87) 195 CA3d 244, 251, fn 4 [240 CR 516].) However, if counsel expresses on-the-record support for the court’s inaction, then any error in failing to respond may be either waived or invited. (People v. Beardslee (91) 53 C3d 68, 116 [279 CR 276]; People v. Medina (90) 51 C3d 870, 900-01 [274 CR 849]; People v. Thoi (89) 213 CA3d 689, 698 [261 CR 789].)
Moreover, if the defendant’s complaint is that the response to the jury was too limited, then the issue is waived unless the trial attorney requested clarifying or amplifying instructions. People v. Beardslee (91) 53 C3d 68, 116 [279 CR 276] [compare failure to respond to inquiry: no waiver (Id. at 96-97) with partial response: waiver (Id. at 116)]; see also People v. Medina (90) 51 C3d 870, 902 [274 CR 849].)
PG IX(E)(3) Error In Supplemental Instruction More Likely To Be Prejudicial.
See People v. Miller (2008) 164 CA4th 653 [error in supplemental instruction was prejudicial because the jurors’ question focused on the very element which was omitted in the supplemental instruction].
