Cohee v. State, F-96-329

• Citation: 942 P.2d 211,1997 OK CR 30
• Decision Date: 22 May 1997
• Docket Number: No. F-96-329,F-96-329
• Parties: 1997 OK CR 30 Larry Darnell COHEE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 211

942 P.2d 211

1997 OK CR 30

Larry Darnell COHEE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-96-329.

Court of Criminal Appeals of Oklahoma.

May 22, 1997.

Order Granting Rehearing

for Limited Purpose

July 2, 1997 .

Charles J. Migliorino, Burke Mordy, Ardmore, for Defendant at trial.

Dennis Gay, Assistant District Attorney, Ardmore, for State at trial.

W.A. Drew Edmondson, Attorney General, Nathan L. Dills, Assistant Attorney General, Oklahoma City, for Appellee on appeal.

Burke Mordy, Ardmore, for Appellant on appeal.

SUMMARY OPINION

PER CURIAM:

Larry Darnell Cohee was tried by jury and convicted of Unlawful Delivery of a Controlled Substance in violation of 63 O.S.Supp.1994, § 2-401(B)(1), in the District Court of Carter County, Case No. CF-95-156. In accordance with the jury's recommendation the Honorable Lee Card sentenced Cohee to ten years imprisonment and fined him $20,000. Cohee appeals from this Judgment and Sentence.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we have determined that neither reversal nor modification is required under the law and evidence. However, in Proposition I Cohee contends that it was reversible error to permit a juror to take his notes into the jury room. We address Proposition I to clarify the law in this area. In addition, this case raises the more general question of the appropriate role and function of the jury in criminal cases. Across the country, courts are expanding trial techniques and procedures to encourage the development of informed, capable juries. ¹ This Court has considered this issue and believes that juries are a valuable resource which can be used more effectively. To that end, we hereby adopt the guidelines attached to this Opinion, and encourage district courts to follow these guidelines when conducting jury trials in criminal cases.

The separate opinions suggest the guidelines are an inappropriate attempt at legislation. We disagree. As our colleagues admit, the guidelines restate settled law or "basic, common sense principles of courtesy and management" and are nothing new. We do not seek to exceed our jurisdiction by creating laws or imposing new duties on trial courts. Rather, we recognize that, although these procedures are within a trial court's discretion, our current piecemeal system may leave courts confused when deciding which procedures to use in any given trial. This case is an excellent example; the practice of juror note-taking is the subject of several published and unpublished cases and trial courts, as here, habitually and needlessly create trial practice based on dicta. Recently, a trial court sought to impanel dual juries in a co-defendant case; this practice is within the trial court's discretion, but time and money were wasted in appealing that decision to this Court. ² These examples illustrate a systemic, recurring problem--trial courts simply do not know whether this Court sanctions these trial procedures, and are understandably reluctant to risk reversal by embracing them. In adopting today's guidelines, we attempt to address this widespread problem of trial practice. The restatement of possible trial practices is not an attempt at legislation and addresses the issue before the Court.

In Proposition I Cohee claims the trial court erred in allowing a juror to bring his notes from the trial into the jury room during deliberations. We initially note that Cohee agreed on the record to allow jurors to take their notes into the jury room. He has thus waived consideration of all but plain error. In Glazier v. State ³ this Court approved the general practice of jurors taking notes during trial. Cohee relies on Glazier for his claim that it was plain error for jurors to bring their trial notes with them while deliberating. This reliance is misplaced. Although Glazier comments that jurors should not be allowed to take notes into the jury room while deliberating, ⁴ that comment was dicta. As that opinion made clear, jurors did not take their notes into the jury room, and that issue was not before the Glazier court. After reconsidering the issue, we repudiate our dicta in Glazier. Use of notes may aid the jury during their deliberations. We find that jurors may benefit from notes in several ways: (1) jurors may follow the proceedings more closely and pay more attention as they take notes for later use; (2) jurors' memories may be more easily and reliably refreshed during deliberations; (3) jurors may make fewer requests to have portions of trial transcript read back during deliberations; and (4) the ability to use their notes may result in increased juror morale and satisfaction.

Glazier relied on 22 O.S.1991, § 893, which enumerates material which may be allowed in the jury room during deliberations, including written instructions, the verdict forms, and documentary evidence. That statute says nothing about jury notes. Cohee claims the statute explicitly restricts the materials available to the jury during deliberations. On the contrary, the statute mentions neither physical evidence nor audio nor video recordings, although both are commonly sent back with the jury to aid in their deliberations. The Legislature clearly intended the statute to include material that must be given to the jury, not to limit the materials which the jury may find helpful. We have determined that jurors' notes may aid them in their deliberations. In keeping with our guidelines calling for more effective, informed, and involved juries in criminal cases, we hold that jurors may take their notes into the jury room during deliberations. Cohee's Proposition I is denied.

Decision

The Judgment and Sentence of the trial court is AFFIRMED.

CHAPEL, P.J., STRUBHAR, V.P.J., and JOHNSON, J., concur.

LANE, J., concurs in result.

LUMPKIN, J., concurs in part and dissents in part.

ATTACHMENT I: GUIDELINES

GUIDELINES GOVERNING JURIES IN CRIMINAL TRIALS

A. The following Guidelines are set forth for use at the discretion of the trial court, in order to allow for more effective use of juries and strengthen the institution of the jury trial in criminal proceedings.

Guideline 1. Time Management.

A. After the trial court ascertains from counsel how long each case is expected to take the court may, at its discretion, set reasonable time limits on the presentation of evidence or the length of the trial. The trial court may inform the jury how long the trial is expected to last, and should continue to inform the jury of any schedule changes as the trial progresses.

B. The trial court may, at its discretion, ensure that as far as possible the jury is not kept waiting while court and counsel hold hearings on motions, go over instructions, or attend to other out-of-court business. The trial court may arrange its docket to minimize interruptions during criminal trials.

C. In cases with numerous trial exhibits, especially documents, the trial court may, at its discretion, manage and control the documents used at trial. The trial court may (1) assign only one number to each exhibit; (2) provide copies of documents to jurors after their introduction into evidence, and (3) provide an index of admitted exhibits for the jury's use.

D. The trial court may, at its discretion, determine a schedule for jury deliberations and inform the jury of this schedule before deliberations begin.

Comment: The trial court may determine whether the jury will deliberate during the evenings or on weekends, outside normal court hours. The court may ask jurors which schedule they would prefer.

Guideline 2. Impaneling Dual Juries.

In a case where co-defendants are charged, the trial court may, at its discretion, order two juries impaneled, one for each co-defendant. Both juries will be seated in the jury box and the evidence pertaining to both defendants will be presented to both juries simultaneously. Evidence admissible as to one co-defendant shall be presented to that defendant's jury only.

Comment: This procedure is intended to balance, in appropriate cases, defendants' rights to separate trials and speedy trials, and concerns of fairness and judicial economy.

Guideline 3. Jury Questionnaires; Confidentiality.

The trial court may, upon request of the parties and at its discretion, allow a written juror questionnaire to be sent to members of the jury pool before voir dire commences, and may allow the results of that questionnaire to be used in voir dire. The trial court must examine and approve the questions contained in the questionnaire. The court shall keep all jurors' home and business telephone numbers confidential unless good cause is shown to the court which would require such disclosure.

Guideline 4. Juror Preparation.

A. Immediately after the jury is sworn, the trial court may, at its discretion, instruct the jury concerning its duties and conduct, the order of the proceedings, the procedure by which jurors may submit written questions of witnesses or the court as set forth in subsection (C) of this Guideline, and the elementary legal principles that will govern the proceedings.

Comment: Section 831 of Title 22 O.S.1991 provides the order for criminal trial proceedings, beginning with the reading of the Information. The Court of Criminal Appeals has previously determined that § 831 does not provide exclusive directions for the order of trial, and has promulgated introductory jury instructions to be given after the jury is sworn. Instructions 1-7, 1-8, Oklahoma Uniform Jury Instructions, Criminal (2nd). In addition to these instructions, jurors may be informed of the elements of the offense and affirmative defenses, if any, of which a defendant has given notice. In technical or complicated cases, these instructions may include a glossary of terms or other information which would assist jurors in understanding the evidence. This information may help prepare jurors to...