Andrews v. State

• Decision Date: 01 November 1971
• Docket Number: No. 5623,5623
• Citation: 472 S.W.2d 86,251 Ark. 279
• Parties: Patrick L. ANDREWS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 86

472 S.W.2d 86

251 Ark. 279

Patrick L. ANDREWS, Appellant, v. STATE of Arkansas, Appellee.

No. 5623.

Supreme Court of Arkansas.

Nov. 1, 1971.

A. A. Thomason, W. Byron Thomason, and Thomas A. Monroe, Magnolia, for appellant.

Ray Thornton, Atty. Gen., Gene O'Daniel, Asst. Atty. Gen., Little Rock, for appellee.

HARRIS, Chief Justice.

Patrick L. Andrews, appellant herein, was charged by the prosecuting attorney of the Thirteenth Judicial Circuit with the crime of murder in the first degree. On trial, he was convicted of murder in the second degree and the jury fixed his punishment at 21 years in the Department of Correction. From the judgment to entered, appellant brings this appeal. For reversal, it is first argued that the court committed reversible error by explaining to the jury foreman the length of time that the defendant would be required to stay in the Arkansas Department of Correction under possible verdicts in the case, this occurring before the jury had reached a verdict as to the defendant's degree of guilt. It is also argued that the court committed reversible error by giving lengthy oral instructions to the jury foreman in the absence of the remaining members of the jury to such extent that such instructions could not be accurately related to the absent members of the jury. We first discuss the second contention.

The record reflects that after the jury had retired, the foreman returned to the courtroom and asked a question of the court. The transcript reflects the following:

'THE COURT: Let the record reflect that the foreman of the jury has approached the bench, and in the presence of the attorneys for the State and for the defendant, has requested to know in case this defendant received a number of years in the Department of Correction, when he would be eligible for parole, and also if he was given life? Is that a true and accurate statement of your question?

FOREMAN OF THE JURY: Right.

THE COURT: Commencing first with the number of years I could not have given you this answer unless you have inquired specifically by question as to the term of years, and specifically dealing with that which is less than first degree. Under Act 50 of the State of Arkansas a defendant sentenced for a term of years is eligible to make parole after he has served one third of his sentence less statutory good time that he might earn, and if the sentence is over five years he may be given an opportunity of earning twelve days per month, in that sentence in excess of five years off of the term, and that portion of the sentence under five years he will be given an opportunity to earn as much as eight days per month statutory good time. In addition to that he is given the opportunity of also earning what is known as meritorious good time of five days per month off of the sentence. Now the Act of 1969 provides that he must serve one third of his sentence, less that which he had earned for statutory good time and meritorious good time, conditioned on the recommendations of the prosecuting attorney, of the circuit judge, and the sheriff. Does that answer that question for those sentences for a term of years?

THE FOREMAN: Yes, on that one.

THE COURT: Now as to the sentence of first degree murder for life, Act 50 provided originally that life shall be computed to be fifteen years and you could earn not more than five years good time, or you couldn't get out less than ten years. In 1969 that was amended, and the law today is that life shall be considered to be life, unless commuted by the governor for a term of years, and when commuted by the governor for a term of years it would be treated in like manner as I have just indicated to you for a sentence for a term of years. Does that answer the question?

THE FOREMAN: Yes, sir.

THE COURT: Any objection on behalf of the defendant or the state?

MR. THOMASON: I would like to lodge my objection to that.

THE COURT: What is the objection, sir?

MR. THOMASON: Well, basically the objection is Your Honor that I don't think that at this period of time that the term of years should be explained or enter into the deliberation or consideration.

THE COURT: All right. Let that objection be overruled. I might say this that under the Arkansas law by case decision that is true and a Court could not instruct the juries otherwise, but when a jury comes out and requests this specific information, under the case decision it becomes the duty of the Court to so instruct them. Let the objection of the defendant be overruled to which he saves his exceptions.'

After a thorough study of the statute and our cases, we have come to the conclusion that the judgment should be reversed on this count, but in making this determination, we think it only fair to state that no fault should be attached to the learned Circuit Judge because of the ruling rendered. Our cases are somewhat in conflict, and the distinctions drawn in instances where cases have been affirmed, and other cases reversed, are confusing and difficult to follow.

For instance, in Wacaster v. State, 172 Ark. 983, 291 S.W. 85, the trial court answered a question propounded by the jury foreman in the hall outside the jury room, and away from the presence of defendant and his attorneys, the question relating to the likelihood of a parole in the case under consideration. The answer given by the court was proper but the judgment was reversed by this court because the judge's action was in conflict with § 3192 Crawford & Moses' Digest, the court holding the provisions to be mandatory. It might be here stated that the statute mentioned is the same as our present statute, Ark.Stat.Ann. § 43--2139 (Repl.1964). ¹ This reversal was entered despite the fact that jurors testified after the rendering of the verdict, that they had already reached a verdict of guilty before the communication was received.

In Aydelotte v. State, 177 Ark. 595, 281 S.W. 369, a different result was reached. From the opinion:

"After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court the information required must be given in the presence of, or after notice to, the counsel of the parties.' The provisions of the above statute are mandatory, and, where the facts call for an application of its provisions, unless the rulings of the court comply with the statute they will constitute prejudicial error. The design of the lawmakers in the enactment of this statute was to protect defendants on trial as well as the state, after causes have been finally submitted to the jury for its deliberation and verdict, against any further steps being taken in the case in regard to the evidence or the law, unless in open court and after notice to the counsel of the respective parties. While the records show that the communication between the foreman of the jury and the trial judge occurred in the hall of the courthouse; yet the record further shows that appellant's counsel was standing within 30 feet of the judge and the foreman of the jury at the time, and immediately after the communication the judge informed appellant's counsel of such communication. The counsel stated to the judge it was all right, but he wished to save his formal exceptions. Even this would not have been a compliance with the statute, if nothing further had been done, but, after the jury had returned into court with its verdict, and before the court had received the same, the court informed the jury of the communication that the judge had with the foreman, and inquired of them if such was their understanding of what had happened, and asked them if the conduct of the judge and the foreman had exerted any influence on them in reaching their verdict, and they answered that it had not. Thus it appears that the communication between the judge and the foreman of the jury was repeated in the presence of the jury and counsel in the court room, before the verdict was received and announced. Counsel for the respective parties were thus notified of what had taken place and what was then taking place in open court, and they were then given an opportunity to register any objection they had, or might have had, to the procedure, and they offered none.'

A similar holding was rendered in Smith v. State, 194 Ark. 264, 106 S.W.2d 1019 (1937), where a single juror requested the sheriff to permit him to leave the remaining eleven and go into the courtroom to see the court. The sheriff granted permission and the juror walked up to the bench where the judge was sitting and talked with him. Following the conversation, the court permitted the juror to return to the jury room. This action was observed by an attorney named Walker. The opinion then recites:

'Mr. Walker is a partner in the firm of Shouse & Walker, and, while the testimony shows that he did not actively participate in the trial, yet it is admitted that he sat at the counsel table with the other attorneys for appellant, assisted in selecting the jury, and the court and prosecuting attorney evidently regarded him as one of appellant's attorneys. He saw the juror in the court room, made some remark about it, and asked what it was about. He did not request that the entire jury be brought in, and the conversation repeated in their presence. This request was not made at any time by appellant's attorneys. The testimony of all the jurors shows that nothing occurred at any time after they were selected as jurors to influence them in any way. There was no communication between them or any one of them and outside persons. There is in fact no claim made by the appellant that anything was done or said at any time to influence their verdict. It is only contended that the sheriff, permitting one juror to separate from the others and go into the court room, violated the statute, and for this...