State v. Walsh

• Decision Date: 28 July 2005
• Docket Number: No. 30945.,30945.
• Citation: 141 Idaho 870,119 P.3d 645
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Randall Nathan WALSH, Defendant-Appellant.
• Court: Idaho Supreme Court

119 P.3d 645

141 Idaho 870

STATE of Idaho, Plaintiff-Respondent, v. Randall Nathan WALSH, Defendant-Appellant.

No. 30945.

Court of Appeals of Idaho.

July 28, 2005.

COPYRIGHT MATERIAL OMITTED

DeFord Law, P.C., Nampa, for appellant. R. George DeFord, Jr. argued.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

PERRY, Chief Judge.

Randall¹ Nathan Walsh appeals from the district court's order, on intermediate appeal from the magistrate's division, affirming Walsh's judgment of conviction for misdemeanor domestic battery in the presence of a child. We affirm.

I. FACTS AND PROCEDURE

Walsh and the victim in this case were married. The victim was contemplating divorce. One morning while Walsh was in the shower, the victim removed a box of documents from Walsh's vehicle that contained the couple's tax documents and Walsh's inheritance papers. The victim hid the box from Walsh so that she would have the documents for an appointment with her divorce attorney. Fearing that Walsh would be angry, the victim locked herself and her five-year-old son in a bedroom. Upon discovering that the box was missing from his vehicle, Walsh pounded on the bedroom door, opened the locked door, and demanded to know where the box was. The victim responded that it was in a safe place. Walsh started to leave the room and the victim attempted to shut the door. Walsh pushed the door open and called the victim a "bitch." Walsh then pushed the victim with both of his hands, which caused the victim to stumble back about four feet. The victim called the police. Walsh was arrested and charged with misdemeanor domestic battery in the presence of a child. I.C. §§ 18-918(3)(b), 18-918(4).²

At trial, Walsh argued that he pushed the victim to move her out of his way so he could find the box, and he requested a jury instruction on the defense of property. Walsh also argued that, because the victim knew that Walsh would be angry when she took the box, the victim provoked Walsh and, therefore, impliedly consented to being battered. Following the jury's deliberations but prior to reading the verdict, the magistrate indicated that while the jury was deliberating the magistrate had received a written request for further instruction from the jury and had responded without first consulting the parties.³ In a note, the jury had asked the magistrate whether the victim's "actions intending to provoke [Walsh's] anger [were] a sign that would imply her consent for him to touch her." The magistrate responded:

This is totally within the province of the jury, although any provocation, if the jury finds that it existed, is not in itself a defense to domestic battery. Still . . . whether there was any provocation, for whatever value it might have in deliberation, and it may have, is still for your determination and is for you to decide.

The jury found Walsh guilty, and the magistrate entered a judgment of conviction. Walsh appealed to the district court, arguing that the magistrate erred in refusing to instruct the jury on defense of property and that the magistrate's ex parte jury instruction constituted reversible error. The district court affirmed the judgment of conviction entered by the magistrate, finding that the facts of the case did not warrant giving a defense of property jury instruction and that the magistrate's error in instructing the jury ex parte was harmless. Walsh again appeals.

II. ANALYSIS

On review of a decision of the district court, rendered in its appellate capacity, we examine the record of the trial court independently of, but with due regard for, the district court's intermediate appellate decision. State v. Bowman, 124 Idaho 936, 939, 866 P.2d 193, 196 (Ct.App.1993).

A. Ex Parte Jury Instruction

Walsh argues that the magistrate's ex parte instruction of the jury was contrary to law and violated his right to due process. If the jury, after it has retired for deliberations, desires information on any point of law arising in the cause, it must require the officer to conduct the jury into court. I.C. § 19-2204. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecutor and the defendant, or after they have been called. Id. In addition to this statutory right to presence at criminal proceedings, a defendant has a right under the United States Constitution to be present at every critical stage of the trial. United States v. Rosales-Rodriguez, 289 F.3d 1106, 1109 (9th Cir.2002). The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486, 490 (1985); Young v. Herring, 938 F.2d 543, 557 (5th Cir.1991). The right to presence is also protected by the Due Process Clause in some situations where the defendant is not actually confronting adverse witnesses or evidence. Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484, 84 L.Ed.2d at 490; Moore v. Knight, 368 F.3d 936, 940 (7th Cir.2004); Young, 938 F.2d at 557. The presence of the defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his or her absence and to that extent only. Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484, 84 L.Ed.2d at 490; Rosales-Rodriguez, 289 F.3d at 1109; Young, 938 F.2d at 557. Thus, the mere occurrence of an ex parte conversation between the trial court and a juror does not constitute a deprivation of any constitutional right. Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484, 84 L.Ed.2d at 490; United States v. Bishawi, 272 F.3d 458, 461 (7th Cir.2001).

In this appeal, the state concedes that it was error for the magistrate to respond to the jury's question ex parte but asserts that, because the error was harmless, reversal is not required. Walsh argues that the magistrate's error automatically entitles him to a new trial regardless of whether the error was harmless. Where the jury, during its deliberations, receives out-of-court information or communication from the trial court, this Court applies a four-pronged test to determine whether the improper communication constitutes reversible error:

(1) It is for the losing party, in the first instance, to show that there was some communication off the record and not in open court. (2) The burden then shifts to the winning party to show what the communication was. If he cannot show what it was, the verdict must be set aside. (3) If he can show what the communication was but it appears to have been of such a character that it may have affected the jury, then the verdict must be set aside. (4) Only if it is made clearly to appear that the communication could not have had any effect, can the verdict be allowed to stand.

Rueth v. State, 100 Idaho 203, 209, 596 P.2d 75, 81 (1978); see also State v. Eguilior, 137 Idaho 903, 906, 55 P.3d 896, 899 (Ct.App.2002).

In the instant case, there is no dispute regarding the ex parte instruction's occurrence or content. Thus, only the third and fourth prongs are at issue. Walsh contends that the nature of his defense and the jury's question conclusively demonstrate that the jury was affected by the magistrate's instruction and that the jury would have rendered a different verdict had it not received the magistrate's ex parte instruction.

In State v. Randolph, 102 Idaho 153, 627 P.2d 782 (1981), the Court acknowledged that a literal interpretation of the four-prong test would preclude affirmation except where it appears that the communication could not have had any effect on the jury. However, the Court reasoned that such a literal application would result in a per se reversal for all circumstances involving an ex parte communication. Randolph, 102 Idaho at 155, 627 P.2d at 784. In Rueth, the Idaho Supreme Court concluded that a per se approach would be unwise and indicated that it was reluctant to overturn the results of a lengthy trial where the procedural violation could not have prejudiced, and may even have benefited, the losing party. Rueth, 100 Idaho at 207, 596 P.2d at 79. Accordingly, application of the four-pronged test must be tempered by countervailing considerations including this Court's responsibility to determine whether the error below was harmless or prejudicial. Randolph, 102 Idaho at 155, 627 P.2d at 784.

Notwithstanding the Court's holding in Randolph, Walsh contends that in light of the United States Supreme Court's analysis of ex parte communications in Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) and Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975), application of the four-pronged test cannot be diluted with a harmless error analysis. However, Rogers and Rushen do not support Walsh's position. The Court in Rushen, like Randolph and Rueth, rejected an approach that mandated automatic reversal when the trial court communicated ex parte with the jury. The Court in Rushen "emphatically disagree[d]" with the Ninth Circuit Court of Appeals' conclusion that an unrecorded ex parte communication could never be harmless error because the absence of a contemporaneous record made intelligent application of the harmless error standard impossible. Rushen, 464 U.S. at 117, 104 S.Ct. at 454-55, 78 L.Ed.2d at 272. Although the right to presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant, cases involving deprivations of those constitutional rights are subject to the general rule that remedies should be tailored to the injury suffered. Id. at 117-18 104 S.Ct. at 454-55, 78 L.Ed.2d at 272-73. The Court in Rushen reasoned that the Ninth Circuit's conclusion that an unrecorded ex parte communication could never be harmless error ignored the day-to-day realities of courtroom life and undermined society's interest in the administration of...