Caldwell v. Com., 791457

• Docket Nº: No. 791457
• Citation: 269 S.E.2d 811, 221 Va. 291
• Case Date: August 28, 1980
• Court: Supreme Court of Virginia

Page 811

269 S.E.2d 811 221 Va. 291 John Nathan CALDWELL
v.
COMMONWEALTH of Virginia. Record No. 791457. Supreme Court of Virginia. Aug. 28, 1980.

Page 812

[221 Va. 292] Andrew H. Hook, Portsmouth (Babb, Oast, Hook & Crowe, Portsmouth, on briefs), for appellant.

Vera S. Warthen, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before [221 Va. 291] CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ., and HARMAN, Special Justice.

[221 Va. 292] COCHRAN, Justice.

In this appeal, the question presented for our determination is whether the trial court should have declared a mistrial because the court clerk read a certain statute to the jury.

[221 Va. 293] The defendant, John Nathan Caldwell, was tried on an indictment containing four counts charging him, while an inmate of the Portsmouth City Jail, with injuring a jail employee, escaping from jail, possessing an instrument for the purpose of escaping and aiding other inmates to escape, and damaging jail furniture, fixtures and fastenings for the purpose of escaping and aiding others to escape therefrom. Upon his arraignment, Caldwell pleaded not guilty to each count as it was recited by the clerk. The clerk informed the jurors that they must determine whether Caldwell was guilty as charged in the indictment or not guilty. If they found him guilty, the clerk continued, "the following is the law", and the clerk then read in full Code §§ 18.2-55 ¹ and 53-291 ² to which reference was made in the indictment.

Page 813

[221 Va. 294] The clerk incorrectly read the classification of the crime described in § 18.2-55 as a Class 3 felony rather than as a Class 5 felony. He incorrectly read the explanatory word for the elimination of subparagraph 1 of § 53-291 as "Omitted", rather than as "Repealed".

At the conclusion of the reading, Caldwell moved, out of the presence of the jury, for a mistrial on the grounds that he was prejudiced and the jury was confused as to the law by the reading in its entirety of § 53-291, which listed six other serious but irrelevant crimes in addition to three of the four offenses with which he was charged. The motion was overruled, the trial court stating that Caldwell was not charged with "those offenses" (not included in the indictment), and that the jury later would be instructed as to the relevant charges and punishment. Caldwell then renewed the motion on the additional ground that the clerk had read what would happen if he were convicted, that his sentence would not run concurrently with other sentences. The trial court again overruled the motion, observing that the provision prohibiting parole was not prejudicial but, if anything, was beneficial to Caldwell.

The trial court then informed the jury that Caldwell was being tried on four counts, numbered one, three, four, and five, ³ and that the applicable law would be given in the instructions of the court. After the presentation of evidence had been completed, instructions were given that correctly prescribed the permissible punishment that could be imposed by the jury for each charge upon a finding of guilt. These instructions did not contain any reference to parole or to consecutive or concurrent sentences.

The jury, finding Caldwell guilty on all counts, fixed his punishment[221 Va. 295] at five years for injuring the jail employee as charged in count one, five years for escape as charged in count three, five years for possession of an instrument for the purpose of escape as charged in count four, and one year for breaking furniture, fixtures and fastenings of the jail as charged in count five. Judgment was entered upon the verdict.

Caldwell was entitled, of course, to a fair trial on only those charges included in the four counts of the indictment for which he was answerable. At the very outset of the trial, however, he was confronted with the clerk's action in directing the jurors' attention to six other crimes, including, for example, the inflammatory offense of possession of a controlled drug. We are aware of no worthwhile purpose to be served by permitting the clerk or any other court officer to read to the jury a statute listing crimes with which an accused is not charged. Nor could the Attorney General suggest to us any justification for such a procedure.

Even the reading of § 18.2-55 delineating a crime with which Caldwell was charged was not required to inform either Caldwell or the jury. At Caldwell's arraignment, the four counts in the indictment upon which he was to be tried were read to him, and he entered his plea to each one. Thereafter, it was the function of the court, not the clerk, to instruct the jury in the law. Accordingly, the reading of both statutes by the clerk was not only an unnecessary act but was

Page 814

also an intrusion, albeit unintended, upon the prerogatives of the court. We now consider whether the reading of § 53-291 constituted reversible error.

The Attorney General first contends that Caldwell failed to make timely, specific objection to the reading of § 53-291 and is therefore precluded from raising the issue by Rule 5:21. We do not agree.

Caldwell did not object to the clerk's reading of § 18.2-55 because this statute defined one of the offenses with which the accused was charged. Nor did he object to the reading of those subparagraphs of § 53-291 that listed the other three crimes for which he was being tried. Caldwell concedes that this much information could properly be given to the jury. But Caldwell says that he was taken by surprise when the clerk continued his reading to include those parts of § 53-291 that defined...