Price v. State

Decision Date30 November 1994
Docket NumberNo. 264-94,264-94
Citation887 S.W.2d 949
PartiesJohn Leon PRICE, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

David L. Richards, David Chapman, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and Betty Marshall, Charles M. Mallin and Edward L. Wilkinson, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted by a jury of the offense of capital murder pursuant to Tex.Penal Code Ann. § 19.03(a)(2). The State did not seek the death penalty and the trial judge sentenced appellant to life imprisonment. Tex.Code Crim.Proc.Ann. art. 37.071(1). The Court of Appeals affirmed. Price v. State, 870 S.W.2d 205 (Tex.App.--Fort Worth 1994). We granted appellant's petition for discretionary review to decide whether the Court of Appeals erred in approving the practice of juror note-taking and the use of those notes during deliberations. 1 We will affirm.

I. THE TRIAL COURT

At the time the jury was impaneled the trial judge instructed the jury:

At this point, I'm going to ask the bailiff to pass out notebooks. I provide notebooks to the jurors because I believe that it helps you sometimes to follow the testimony if you're able to record certain bits and pieces of evidence that you think might be important. If you think the notebooks will help you, then use them. If you use notebooks, please keep them either here in the courtroom or back in the jury room. If you leave them in the jury room, we'll lock it up and make sure they're secure, so please don't take them to the cafeteria or home.

Keep in mind that anything you put in these notebooks may later be made a part of the record in this case and that we will be collecting the notebooks after the trial is over. And also remember this: The notebooks are simply a memory aid for you personally. They do not ever reach the level of evidence in the case, so you cannot go back to the jury room and talk to the other jurors and say well, I know this is evidence because I have written on page six of my notes and proceed to dictate to everyone else in the room what the evidence is in the case. Understand that they're for your personal assistance, but they never will be evidence in the case. The evidence is what you hear in the testimony or what comes to you in the form of documents or physical exhibits admitted by the Court.

If you don't want to use the notebooks, you don't have to. Sometimes taking notes actually impedes one's ability to follow the testimony. If that's the case with you, simply put the notebooks aside and do not use them at all.

Appellant objected to the trial judge's instruction, contending the practice would distract the jurors and violate appellant's right to confront and cross-examine witnesses under the Texas and United States Constitutions. Appellant further contended the factual and legal issues involved were not complex and the trial's duration was expected to be short. Finally, appellant contended the jurors should not be permitted to use their notes during deliberations. The trial judge overruled the objections.

In the charge on guilt/innocence the trial judge instructed the jury:

You have been provided with notebooks and permitted to take notes during the testimony. You are instructed that these notes are to assist you in recalling the testimony. However, these notes are not evidence and should not be used as such. If your memory or recollection of the evidence differs from the notes of a juror, you should rely on your memory. If the jury disagrees as to the testimony of any witness, they may, upon application to the Court, have read to them from the Court Reporter's notes that part of a witness' testimony on the particular part in dispute and no other.

The jurors notes are part of the record before us.

II. THE COURT OF APPEALS

Relying on its opinion in Hubbard v. State, 809 S.W.2d 316 (Tex.App.--Ft. Worth 1991), the Court of Appeals approved the practice of juror note-taking. The Court stated that appellant held a burden to "see that a sufficient record is presented to show error requiring reversal." Price, 870 S.W.2d at 207. The Court held:

... We know of no Texas court that found reversible error in simply allowing jurors to take notes during the trial. Nowhere in the record is there any showing that the jurors actually used their notebooks during deliberations. As we stated in Hubbard, it is incumbent upon appellant to do this to show harm.

Id.

III. HISTORICAL ANALYSIS

Historically, jurors have been prohibited from taking notes. The case most often cited for the prohibition is Cheek v. State, 35 Ind. 492 (1871). In Cheek, the trial judge discovered two jurors taking notes and admonished the jurors to cease, however, the jurors persisted. The Indiana Supreme Court held:

... This disobedience of the order of the court was a gross violation of, and contempt for, the authority of the court, and was misconduct for which the jurors might have been severely punished, and of itself would entitle the defendant to a new trial. It was well calculated to divert the attention of the jurors while they were busy, pencil in hand, from the evidence, as it would naturally be progressing while such notes were being made. The juror is to register the evidence, as it is given, on the tablets of his memory, and not otherwise. The jury should not be allowed to take the evidence with them to their room, except in their memory. It can make no difference whether the notes are written by a juror or by someone else. Jurors would be too apt to rely on what might be imperfectly written, and thus make the case turn on a part only of the facts.

Id., 35 Ind. at 494-495.

In certain states, juror note-taking was statutorily prohibited. Several of the reasons for the prohibition were stated by the Louisiana Supreme Court in State v. Ledet, 298 So.2d 761 (La.1974):

(1) Since all jurors do not possess the same note-taking abilities, the skilled note-taker will have a marked advantage in influencing other jurors;

(2) The process of note-taking diverts attention;

(3) During deliberation, too much weight may be given notes;

(4) Conflicts of memory may be settled by inaccurate notes;

(5) Unimportant evidence may be emphasized;

(6) Evidence as to which notes are taken may be given greater attention than equally important evidence as to which notes are not taken.

Id., 298 So.2d at 764-765 n. 6.

Today, many jurisdictions now reject the historical view. In State v. Jumpp, 261 N.J.Super. 514, 619 A.2d 602 (A.D.1993), the Court noted a general trend of approval of juror note-taking. The Court stated:

... In light of the general approval of juror note-taking in other jurisdictions, an arbitrary distinction should not be drawn to bar jurors in criminal cases in this State from availing themselves of the same generally accepted practice.

Id., 619 A.2d at 608. However, the Court cautioned against "authorizing the practice in every criminal case as a matter of routine," Id., holding the trial judge should determine whether allowing the jury to take notes would be beneficial in light of the factual and legal issues to be presented at the trial. Id., 619 A.2d at 609.

In State v. Triplett, 187 W.Va. 760, 421 S.E.2d 511 (1992), the trial judge announced he would allow the jury to take notes during trial and allowed the defendant to conduct voir dire on the ability of the veniremembers to read, write or take notes. Id., 421 S.E.2d at 518. The trial judge instructed the jury that it would be allowed to take notes and admonished the jury on the proper use of the notes. 2 The West Virginia Supreme Court noted the "majority of both state and federal jurisdictions have found that it is proper to permit jurors to take notes during trial." Id., 421 S.E.2d at 519. Further, despite the risks inherent in allowing jurors to take notes, the Court recognized there were benefits as well:

The obvious and strongest argument in favor of allowing note-taking is that, when done properly, it is a valuable method of refreshing memory. In addition, note-taking may help focus jurors' concentration on the proceedings and help prevent their attention from wandering.

Id. (quoting United States v. MacLean, 578 F.2d 64, 66 (3rd Cir.1978)) (emphasis added). The Court concluded:

... [I]t is a permissible practice to allow jurors to take notes in the evidence during trial as long as proper voir dire is permitted concerning the juror's capacity to take notes, and a cautionary instruction is given concerning the proper and improper uses of note-taking. The ultimate decision on whether to allow note-taking by the jury lies within the sound discretion of the trial court.

Triplett, 421 S.E.2d at 520. See also, People v. DiLuca, 85 A.D.2d 439, 448 N.Y.S.2d 730, 734-735 (1982) (note-taking is within the discretion of the trial judge but an abuse of that discretion occurs when no precautionary instructions are given).

Today, the vast majority of states and most of the federal circuits hold that jurors may take notes subject to the trial judge's discretion. 3 Idaho, Minnesota, Nevada, and North Dakota have statutes which specifically allow jurors to take notes at the trial judges discretion. 4 Illinois and Arizona statutorily allow jurors to takes notes in every trial. 5 California, Florida, and Tennessee allow jurors to take notes but hold that cautionary instructions are mandatory when requested by the defendant. 6 Only Louisiana, Rhode Island, New Mexico and Pennsylvania do not allow some form of juror note-taking and, even in those states, the defendant must show harm before reversal will be warranted. 7

IV. TEXAS CASES

Although this is a case of first impression before this Court, 8 several courts of appeals have addressed the issue of juror note-taking. In Williams v. State, 814 S.W.2d 163 (Tex.App.--Houston ...

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