State v. Flint
| Decision Date | 30 June 1988 |
| Docket Number | No. 16266,16266 |
| Citation | 114 Idaho 806,761 P.2d 1158 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Ronald FLINT, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Ada County Public Defender, Boise, for defendant-appellant. Alan E. Trimming argued.
Jim Jones, Atty. Gen., and Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent. Michael A. Henderson argued.
*
The defendant was charged with lewd conduct with a child under 16 years of age. The state moved for an order that defendant view the alleged victim's testimony at the preliminary hearing through closed circuit television rather than being physically present in the courtroom. Following a hearing, the motion was granted. At the preliminary hearing over defendant's objection, he was allowed only to observe the alleged victim's testimony on closed circuit television from outside of the courtroom. His attorney was allowed to remain in the courtroom and to maintain telephone contact with defendant. Defense cross-examination of the alleged victim was allowed. The magistrate found probable cause, and defendant was bound over to the district court to stand trial.
A three-day jury trial held in May 1985, ended in a hung jury. A second trial began on September 3, 1985. Unlike the preliminary hearing, defendant was present in the courtroom when the alleged victim testified. The jury retired to deliberate at 5:15 p.m. on September 5, 1985. The district court trial was presided over by the same district judge who presided at the May trial. The judge discussed with counsel the possibility that, should jury deliberations continue late into the night, the jurors be allowed to separate at about 11 p.m. in order to retire to their homes for the night, returning the next morning to further deliberate. At 12:30 a.m. the court brought the jurors in again, and with the defendant and counsel present, the court addressed the jury as follows:
Ladies and gentlemen we will excuse you for the evening. Sometimes it is helpful for everyone to have a break and let things settle for a little while. We will allow you to recess, since I have had no objection from either the state or the defense about this procedure, until 9 o'clock tomorrow. You can resume your deliberations just by going directly into the jury room and get started again as soon as all of you are present. Please don't discuss this with anyone at home who is not on the jury. You are free to discuss it when you have delivered your verdict. But until then please don't discuss it with anybody except when you are in the group deliberating and we will see if that helps. So I will excuse you for this evening and we will see you tomorrow and we will await your decision.
The jury resumed deliberations at 9 a.m. the next day. At about 10:20 a.m. the jury advised the court that it was unable to reach a verdict. The court brought the jury in and the following exchange ensued:
THE COURT: First I will poll the Foreperson.
Mrs. Edquist, do you feel if the jury were given more time you could reach your verdict in this case?
The court then asked the counsel for both sides whether they wished to have the court give the instruction approved in the case of State v. Bailey, 94 Idaho 285, 486 P.2d 998 (1971). Counsel for the State responded that, "It is worth a try." Defense counsel objected to any further instruction. He stated: "I certainly don't want an instruction that might cause any juror to change its vote just to get it over with." The court then orally addressed the jury as follows:
Well of course the State v. Bailey instruction is not--is an approved instruction. Well I think it may be in the interest of efficient judicial administration to read it to you and then to allow you to advise me after I have read it and you have returned.
The court wishes to suggest a few thoughts which you may desire to consider in your deliberations along with all the instructions previously given. In your further effort to reach a verdict in this case I would suggest that in your deliberations you examine the issues submitted with the proper regard and consideration for the opinions of each other.
Each of you should fairly and freely discuss with your fellow jurors the evidence and the decisions to be drawn therefrom and you should listen to each other's arguments with an open mind. If, after doing so, any of you should be satisfied that a conclusion first reached by you was wrong and you should unhesitantly abandon that original opinion and render your verdict according to a final decision.
You should not hesitate to recede from a previously announced opinion or conclusion because of a sense of pride. Remember that you are not partisans or advocates but are judges. However you should not change the conclusion you have reached merely because one or more of your fellow jurors may have come to a different conclusion or merely to bring about a unanimous verdict.
Have in mind in your further deliberations that you will be making a definite contribution to efficient judicial administration if you arrive at a just and proper verdict in this case. To this end you should make every reasonable effort to reach a verdict.
I'm going to allow you to retire and continue your deliberations and advise me what you think then. But I would like you to try at least a little bit longer to see if you can reach a decision without disturbing your individual conscience in light of the fact that I know that you have all struggled for quite awhile and I know you have all been making a good faith effort to do so.
If you can, try. If you can't then please advise me....
The members of the jury then retired to resume deliberations. Ninety minutes later they returned with a verdict of guilty.
The defendant's motion for a new trial contended that the trial court erred in allowing the jury to separate over night during deliberations, and in not declaring a mistrial when the jury declared its inability to reach a verdict the next morning. The motion was denied.
The initial issue raised by the defendant concerns the use of the closed circuit television at the preliminary hearing. Defendant contends that because he was denied face-to-face contact with the alleged victim, his sixth amendment right to confront the witnesses against him was violated. Where an accused's constitutional rights are violated at a preliminary hearing, any error will be held harmless only if the court is satisfied beyond a reasonable doubt that the violation did not affect the trial. State v. Wuthrich, 112 Idaho 360, 732 P.2d 329 (Ct.App.1986).
However, in this instance we are unable to evaluate the merits of defendant's claim. Defendant's notice of appeal did not specifically request that a transcript of the preliminary hearing be made part of the record on appeal. Idaho Appellate Rule 25(f) provides that "[t]ranscripts of pre-trial or post-trial proceedings shall not be included in the reporter's transcript unless specifically designated and requested." Without a record of the preliminary hearing, we are unable to determine whether the violation of defendant's sixth amendment guarantees, if any, was harmless beyond a reasonable doubt. Even without the testimony of the victim, sufficient independent evidence may have been presented by the state to justify a finding of probable cause. Consequently, we are unable to hold that, assuming error of constitutional dimension, the magistrate erred in holding the defendant to answer in district court. 1 "We are restricted to the record before us and may not consider matters outside the record." Parsons v. State, 113 Idaho 421, 428, 745 P.2d 300, 307 (Ct.App.1987). See also State v. Porath, 113 Idaho 974, 751 P.2d 670 (Ct.App.1988); 4A C.J.S. Appeal and Error § 702, p. 530.
Appellant next asserts that although no objection was made thereto, the trial court erred in allowing the jury to separate during the time of their deliberations.
As above noted, this case had been tried once before and resulted in a deadlocked jury. In the instant case the case was sent to the jury and they had retired to deliberate at 5:15 p.m. Thereafter the court discussed informally with counsel the possibility of deliberations continuing late into the night, and a separation of the jury at approximately 11:00 p.m. so that the members of the jury could return to their homes and return to deliberate the following morning. The jury was allowed to so separate and resumed deliberation at 9 a.m. the following day.
I.C. § 19-2126 provides in pertinent part:
The jury sworn to try an indictment for any offense except murder may at any time during the trial before the submission of the cause in the discretion of the court be permitted to separate or they may be kept together in charge of a proper officer....
Concededly that statute can be read to provide by negative inference that jurors in a criminal trial may not be separated after the case has been submitted to the jury. That statute, however, has been amended to allow separation of the jury during deliberations, and now provides that except in a charge of first degree murder the jury "may at any time during the trial and after submission of the cause in the discretion of the court be permitted to separate or they may be kept together in the charge of a proper officer." I.C. § 19-2126 as amended by [ann. 1987, ch. 145, § 1, p. 289]. As...
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