Brief Bank # B-684 (Re: F 17.50a [Concluding Instruction: Jury’s Right To
Written Instructions, Exhibits, Read-Back Of Testimony, Etc.].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE.
THE PEOPLE OF THE STATE
OF CALIFORNIA, No. A000000
Plaintiff and Respondent, San Mateo County Superior
Court No. SC00000
vs.
JOHN DOE,
Defendant and Appellant.
__________________________________/
APPELLANT’S OPENING BRIEF
Appeal From the Judgment and Sentence of
the Superior Court of San Mateo County
The Honorable Paula W. Schlichter, Judge
Mark D. Eibert
COTCHETT, ILLSTON & PITRE
San Francisco Airport Office Center
840 Malcolm Road, Suite 200
Burlingame, CA 94010
(415) 697-6000
Attorney for Appellant
ARGUMENT
THE TRIAL COURT ERRED BY REFUSING TO INFORM
THE JURY OF THEIR RIGHT TO HAVE TESTIMONY RE-READ
When the jury asked for the trial transcript in Mr. Doe’s case, the trial court should have informed them, as requested by defense counsel, of their right to have the portions of the transcript that they were concerned about reread to them. The trial judge’s actual response, that no transcript existed yet and that it was therefore unavailable, was prejudicial and reversible error under the unique facts of this case.
Jurors, as well as the parties, have a statutory right to have testimony re-read to the jury:
After the jury have retired for deliberation, if there be any disagreement between them as to the testimony… they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.
(Pen. Code, § 1138, emphasis added.) This statute has been consistently interpreted as granting the jury a statutory right to have testimony re-read, with violation of this right considered prejudicial error even if there is no objection.
In People v. Butler (1975) 47 Cal.App.3d 273, the defendant was charged with oral copulation, and attempted forcible rape, of a 14 year old girl. After almost three hours of deliberations, the jury requested that the testimony of five witnesses be re-read. (Id. at 277.) This testimony constituted practically the entire trial, and would have taken a full day to re-read. (Id. at 277-79. The Court, with the concurrence of counsel for both parties, denied the request. (Id.) The jury returned to deliberate; at 5 p.m. that day the jury’s vote stood at 9 to 3. (Id. at 279.) Three hours later, the jury found the defendant guilty. (Id.)
The Court of Appeal reversed the conviction, accepting defendant’s contention that the trial court committed prejudicial error by denying the jury’s request for rereading because the right “is grounded upon the relationship of the claimed statutory mandate of Penal Code section 1138 to the fundamental right of an accused to a fair trial conducted substantially in accordance with law.” (Butler, supra, 47 Cal.App.3d at 280.) The Court rejected the prosecutor’s “mechanical suggestion” that the statute did not require re-reading because the jurors had not shown any “disagreement” among themselves. (Id.) The Court then discussed the issue as follows:
Moreover, logic and common sense warrant the assumption that one or more of the jurors, in agreeing to the verdicts, may have been caused by the court’s rebuff to blend a degree of speculation or surmise into that part of the testimony that they had heard and understood, or–even more costly to the judicial process-may have surrendered their independent judgment to those who professed better hearing and memory.
The court was not without guidance in its moment of confusion and indecision. No attempt was made by the court to attempt a narrowing down to portions of the particular witnesses’ testimony in order to satisfy the jury’s request….. or to “pinpoint” what the jurors wanted……. Had such attempts been made, successfully, it is at least conceivable that the court and counsel, acting together, might have been able to reach stipulations as to the testimony or to prepare a summary for the jury. . . . Absent strong supervision by the trial court, and in the face of an outright rejection of the jury’s request, the appellate court is put in that position that we cannot say, or even speculate, what effect the rereading of the requested testimony would have had or what effect was created by the failure to reread that testimony.
(Butler, supra, 47 Cal.App.3d at 281 [citations omitted].) The Court went on to hold that the right to have testimony reread is a right of the jury which cannot be waived by failure to object, that the error was prejudicial, and that it required reversal. (Id. at 284.) As the Court stated:
Least of all can the command of the statute be ignored at the whim of the trial judge or for the convenience of the judge and counsel, particularly when, as here, the outright refusal of the jury’s request committed the jury to the questionable task of reaching its decisions on the basis of incomplete evidence imperfectly heard. It is evident that such a proceeding is not one “conducted substantially according to law.”
(Butler, supra, 47 Cal.App.3d at 284.)
Similarly, in People v. Litteral (1978) 79 Cal.App.3d 790, the trial court refused the jury’s request to reread testimony because the court reporter was ill that day. (Id. at 793.) The Court of Appeal, First Appellate District, considered it significant that the trial judge failed to try to narrow down the jury’s request or pinpoint exactly what they wanted, or to explain possible alternatives (presumably waiting until the court reporter recovered or obtaining a new court reporter to do the rereading). (Id. at 794-95. The Court concluded that “the error was not technical. The jury was deprived of the chance to rehear testimony it felt a need to rehear.” (Id. at 796.)
As to the prejudice, the Court of Appeal agreed with the Butler Court that since the trial judge failed in his duty to inquire into precisely which testimony the jury wanted reread, the reviewing court was unable to determine whether the outcome of the trial would have changed, and therefore concluded that the error must be presumed prejudicial, even without a defense objection.
(Id. at 796-97; see also People v. Henderson (1935) 4 Cal.2d 188, 193-94 [First Appellate District case reversing a conviction because the jury asked for all testimony regarding the time of a certain event to be reread, and only a portion of it was reread to them].)
In the case at bar, the trial court flatly rejected the jury’s request for a “transcript” of the case without making any effort to determine what portion of the testimony they were interested in, or offering the rereading of specific portions as an alternative. (RT 243-45; CT 82. ) To the contrary, the trial court’s admonition that the transcript was “not available” and that the record only existed in the form of “shorthand symbols” was likely to mislead the jury into believing that no record was available for them to review at all–even in the form of rereading testimony.
There can be no doubt that the jury had disagreements about the testimony. One juror, stating that her guilty vote was “under protest,” expressed dissatisfaction with the evidence, and said that information was lacking and there were a lot of unanswered questions, about which she undoubtedly had to “speculate and surmise” (Butler, supra, ante, at p. 281) before she “went with the majority.” (RT 252.) The jury made a second request (also denied) for a review of specific evidence. [Footnote 1] (RT 246; CT 80.) Four of the twelve jurors at one point voted for acquittal. (CT 81.) Defense counsel objected to the trial court’s response to the jury’s transcript request, and essentially suggested precisely what the appellate courts have encouraged in this situation–that the jury be told about the alternative of read backs, and that the trial judge try to pinpoint exactly what they were interested in so that portion could be given to them. (RT 243-44.) The outcome may very well have been different if the divided jury had been given the information they needed to answer the disgruntled juror’s “unanswered questions.” (RT 253.)
The prosecution will no doubt argue that the jury’s request for the trial “transcript” was not specific or artful enough to implicate their right to have the testimony contained in that transcript reread. This argument is wrong for two reasons.
First, Penal Code section 1138 states that when a jury has any disagreement about the testimony and asks to be brought into court, “[u]pon being brought into court, the information required must be given” to the jury. The jury in this case was not asking for the trial transcript because they needed paper; they were vitally concerned with the information it contained. That information, which is what the statute expressly guarantees, was available in another form–rereading of the shorthand record by the court reporter. Thus, the trial court’s response that the transcript did not exist was misleading since the information the jury impliedly requested was available through other means. The jury had an express statutory right to receive that information in whatever form it existed.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE OF THE STATE
OF CALIFORNIA, No. A000000
Plaintiff and Respondent, San Mateo County Superior
Court No. SC0000
vs.
JOHN DOE,
Defendant and Appellant.
_______________________________________/
APPELLANT’S REPLY BRIEF
Appeal From the Judgment of the
Superior Court of the State of California
for the County of San Mateo
HONORABLE PAULA W. SCHLICHTER, JUDGE
MARK D. EIBERT
(State Bar #116570)
COTCHETT, ILLSTON & PITRE
San Francisco Airport Office Center
840 Malcolm Road, Suite 200
Burlingame, CA 94010
(415) 697-6000
Attorney for Appellant
I.
THE TRIAL COURT HAD A DUTY TO COOPERATE WITH THE JURY WHEN THEY
REQUESTED INFORMATION FROM PRIOR TESTIMONY
In this case, a divided jury asked the trial judge for information that they felt they needed, and to which they had a statutory right, to resolve an 8 to 4 disagreement over whether Mr. Doe was guilty or not guilty of the crime charged. (CT 81 [note from jury room showing that one vote stood at 8 to 4, and another at 10 to 2].) They didn’t get it.
The State argues that the trial judge had no duty even to explain to the jury how they could obtain the information they needed, even though it was in fact available, and the procedure for giving it to them (in the form of a readback) was routine and commonplace. The State’s construction of both the statute that gives the jury and the defendant a right to such information, and of the jury’s request, is strained and hypertechnical. More importantly, it is inconsistent with both the plain language and the underlying purpose of the statute, and of the judicial process itself: to give the jury the information they need to determine the fate of the citizen hauled before them.
A. The Trial Judge Should Have Cleared Up The Confusion About the Transcript That She Inadvertently Created
The trial judge in this case inadvertently confused the jury.
First, she told the jury that a written record of the trial was being made by the court reporter. (RT 244.) This led the jury to believe that the information they needed to reach their decision was available to them–which was true–but confused them about the form in which the information was kept and could be communicated to them.
Then, the trial judge refused to give the following portion of a stock jury instruction, which was requested by both the defense and the State:
… should any discrepancy exist between a juror’s recollection of the evidence and his or her notes, he or she may request that the reporter read back the relevant proceedings and the trial transcript must prevail over the notes.
(CALJIC No. 17.48 (1989 Revision) [emphasis supplied]; see CT 73 [defense request for this instruction]; CT 65-66 [State’s request for the same instruction]; CT 167 (showing that the Court gave other parts of the requested instruction, but modified it by deleting the part quoted above].) Had the trial court given the jointly requested instruction, the jury would have known the precise form in which such information could be obtained–readbacks. [Footnote 2]
Finally, when the jury asked for information they needed in the form that the judge led them to believe it was kept (transcripts) rather than the more common form that the parties jointly and vainly asked the judge to inform them of (readbacks), the trial judge responded by merely telling them, over a defense objection, that the transcript had not yet been prepared. [Footnote 3] (RT 244-45; CT 82.) The net and final effect was to lead the jury to believe that the information they wanted was not available to them in any form–which was simply not true. This impression was reinforced when, in response to the jury’s next request for information (the contents of Mr. Doe’s booking package, which a defense investigator testified contained a working cigarette lighter), the judge refused the request and told the jury “you have heard all the evidence which will be presented in this matter.” (RT 246; CT 80.) [Footnote 4]
The trial judge knew that the jury’s request for the “transcripts” was based on an erroneous impression that she had given them about the form of the record. (See RT 244.) Once it became clear that the jury wanted information from that record, and that they had been inadvertently confused about precisely how to ask for it by the trial judge’s own explanation of how the record was kept, the Court should have corrected the misimpression, and told the jury how the information they needed could be obtained, rather than compounding the error by telling them only how they could not get it.
In other words, the court had a duty to respond to the clear substance of the request, and to cooperate in giving the jury what it needed to reach an informed verdict. Penal Code section 1138 commands that “the information required [by the jury] must be given. . . .” (emphasis added). Defense counsels objection to the trial court’s refusal to provide that information should have been sustained.
For the reasons stated in Appellant’s Opening Brief, the trial court’s failure to ask the jury which information they required and to provide it to them in the best form available was reversible error in the unique circumstances of this case. [Footnote 5]
B. The Cases Cited By Appellant Are Directly on Point And Require Reversal
Respondent argues that because the jury inartfully requested a “transcript” rather than a “readback” of the testimony, they were not entitled even to know that the latter was possible. Appellant has already explained why requiring jurors to use specific language and legal terms of art in making their requests would place unreasonable demands on lay jurors, would elevate form over substance, and would do violence to the language and intent of the statute. (See Appellant’s Opening Brief at 13-15.) That argument will not be repeated here.
However, in its opposition Brief, the State goes one step further, and argues that the cases overturning convictions where juries requested and were denied “readbacks” are wholly inapplicable where, as here, the requesting jury, which was never told about readbacks, was led to believe that the same information was available to them in written form, and used that terminology to request it. The distinction is a meaningless one.
In People v. Butler (1975) 47 Cal.App.3d 273, 277, the jury asked to “hear” certain testimony. In the First Appellate District case of People v. Litteral (1978) 79 Cal.App.3d 790, 793, the jury more specifically requested that testimony be read back to them. The appellate courts in both these cases, however, focused on the substance of the request, not on the exact language, and both appellate courts required the trial courts to attempt to “pinpoint” precisely what the jury wanted so it could be given to them. (Butler, supra, 47 Cal.App.3d at 281; Litteral, supra, 79 Cal.App.3d at 794-95.) The trial judge in the case at bar made no effort to do that.
Moreover, in Litteral, the First Appellate District condemned the trial court’s rejection of the jury’s request without explaining possible alternatives”–exactly what happened here. (Litteral, supra, 79 Cal.App.3d at 795.) [Footnote 6]
The fact that the jury in this case was less artful about their request (because, unlike in Butler and Litteral, the trial judge inadvertently led them to believe they could get the same information in writing), does not distinguish those cases. If the trial judge had made any effort at all to determine precisely what the jury wanted, and/or had explained the alternatives to them, as the Butler and Litteral cases required, both the jury and the law would have been satisfied. She did not do so. The Butler and Litteral cases and Penal Code section 1138 are directly on point, and they require the reversal of Mr. Doe’s conviction.
B. The Error was Prejudicial
It is true that harmless error, even in a violation of Penal Code section 1138, does not require reversal. (People v. Ainsworth (1988) 45 Cal.3d 984.) However, both the First and Third Appellate Districts have held that, where the trial court has failed in its duty to pin down exactly what testimony the jury wanted to re-examine, the appellate court must presume prejudice:
“‘Violations of section 1138 Penal Code do not warrant a reversal of a judgment of conviction unless prejudice is shown. . . . In Butler the error was reversible because virtually the whole trial was requested reread and the jury’s stated reason was that some of it had been inaudible. In the present case, the question of prejudice is difficult to decide because there was no inquiry into what parts of the testimony the jury desired reread. The People contend that precisely because there was no indication of what testimony would be reread defendant cannot show any prejudice. However, since it is the duty of the court, and not of the defendant, to protect the jury’s rights under section 1138, the Butler court and we have concluded (47 Cal.App.3d at pp. 283-284), defendant cannot be penalized for the court’s failure to even make inquiry into what testimony the jury sought. “We cannot say, or even speculate, what effect the rereading of the requested testimony would have had or what effect was created by the failure to reread that testimony.” (Butler, supra, at p. 281.) It cannot be said that it is reasonably probable the same result would have been reached had the testimony been reread, in light of the fact that even on first reading at least two jurors had reasonable doubts about the guilt of one or both defendants.
(Litteral, supra, 79 Cal.App.3d at 797 [citations omitted].) This Court reversed the conviction for prejudicial error. (Ibid.)
In the case at bar, the jury requested the transcript of the entire trial. The trial court failed in its duty to inquire into what testimony the jury was really interested in, making it impossible to speculate what effect the rereading might have had on the outcome. We do know, however, that four of the twelve jurors at one point voted to find Mr. Doe not guilty. Under these circumstances, the Butler and Litteral cases require this Court to assume prejudice, since “it cannot be said that it is reasonably probable the same result would have been reached had the testimony been reread. . . .” (Litteral, supra, 79 Cal.App.3d at 797.)
FOOTNOTES:
Footnote 1: The second jury request, for the defendant’s personal inventory, suggests that the jury was interested in whether Mr. Doe really had a lighter in his possession at the time of his arrest, as he and the defense investigator testified, or whether he had no such lighter, as one of the officers who searched and arrested him testified.
Footnote 2: As far as counsel can tell from the record, the trial judge never told the jury about the existence or possibility of readbacks at any time.
Footnote 3: The State does not argue that the jury was not entitled to the transcripts, had they been prepared.
Footnote 4: The two requests for information were less than two hours apart, but most of that time the jurors were at lunch. (CT 76.) Thus, the two jury requests for information, and the court’s responses refusing the requests, came one right after the other.
Footnote 5: Respondent argues that the jury knew that it had a right to ask the trial court questions about the facts. That is correct, and that is exactly what they did. The problem is that they didn’t get any answers, even though the answers were available and readbacks to provide such answers are routine. Telling the jury that they can ask questions is meaningful only if the questions result in answers.
Footnote 6: Respondent makes much of the fact that the trial court indicated that it would not deny a more verbally artful request for the readback of specific testimony. However, the trial judge made this statement to counsel, not to the jury. The fact that the trial court might have entertained an alternative method of giving the jury the information they needed is irrelevant unless the jury knew they had that option; in the case at bar, knowledge of that alternative was kept from them.
