U.S. v. Gillespie, 94-3525

• Decision Date: 10 October 1995
• Docket Number: No. 94-3525,94-3525
• Citation: 61 F.3d 457
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry GILLESPIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 457

61 F.3d 457

UNITED STATES of America, Plaintiff-Appellee, v.Jerry GILLESPIE, Defendant-Appellant.

No. 94-3525.

United States Court of Appeals Sixth Circuit.

Argued March 23, 1995.

Decided Aug. 1, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 10, 1995.

Thomas M. Bauer, Asst. U.S. Atty., Akron, OH (argued and briefed), for plaintiff-appellee.

Charles E. Fleming, Federal Public Defender's Office, Cleveland, OH (argued and briefed), for defendant-appellant.

Before: JONES and BATCHELDER, Circuit Judges; JOINER, District Judge.^*

JOINER, District Judge.

DefendantJerry Gillespie contends that the district court erred in denying his motion for a new trial based on the fact that a juror brought a dictionary into the deliberation room and read the definition of "reasonable."The district court fully investigated the possibility that Gillespie was prejudiced by the juror's use of the dictionary, and properly concluded that the jury's verdict was based on the jury charge rather than the dictionary definition of reasonable.Finding no abuse of discretion in the court's denial of Gillespie's motion, we affirm.

I.

Gillespie was charged with robbing the First National Bank in Akron of $92,000, and with using a firearm during and in relation to that robbery.At the conclusion of the trial, the court instructed the jury that a reasonable doubt

is one based upon reason and common sense; that kind of doubt which would make a reasonable person hesitate to act.Proof beyond a reasonable doubt, then, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own personal affairs.

No challenge is made to this instruction.

An hour and one half after they retired to deliberate, the jury returned with two questions, requesting that the court(1) more clearly describe reasonable doubt and (2) explain whether aiding and abetting would automatically make Gillespie guilty of armed robbery.The court directed the jury to consult the instructions, and declined to further address the jury's questions.Because the hour was late, the court discharged the jury for the evening, admonishing them, however, that they were not to think or talk about the case.

The jurors resumed their deliberation the following morning, and informed the court an hour later that they had reached a guilty verdict on both counts.Before the jury was discharged, the court was informed that a dictionary had been found in the jury room.The court conferred with counsel, and agreed that the jury should be interrogated regarding its possible use of the dictionary, starting with the foreman.Defense counsel suggested that the court question the foreman outside of the presence of the other jurors, but the court opted to have the entire panel present.Defense counsel did not object.

The foreman confirmed that a member of the jury had brought a dictionary into the deliberation room that morning, and that the juror had read aloud the definition of "reasonable."¹The foreman stated, however, that the jury did not use the dictionary to reach its verdict, and did not even discuss the dictionary definition after it was read.

The juror who brought the dictionary in stated that she had consulted it the previous evening, and that it had "just clarified something to me."This juror stated, however, that the jury discussed the issues further that morning, and that the dictionary had no bearing on what she decided.

THE COURT: And did you make [the decision] on the basis of the definitions contained in the charge or in the dictionary itself?

[JUROR]: In the charge, definitely.There is no question.

Defense counsel requested that the other jurors be questioned, but did not request that each juror be questioned outside of the presence of the others.The court questioned the jurors, and ascertained that they either had not heard the definition, or, if they had heard it, had not paid attention to it and had not relied on it.One juror stated that "[d]uring the reading of the charge is the only time that everyone was quiet, listening to one person read anything."Another said that the jurors read the charges thoroughly that morning and "discussed each step and came upon agreement of each step, and reread and reread the different definitions.And I believe that's what makes the difference."The court concluded its inquiry by asking the jurors whether, on their oath as jurors, they relied only on the definitions in the jury charge and not on the dictionary or any outside source.Each juror responded affirmatively.

Defense counsel noted his exception to the fact that the court did not question each juror outside of the presence of the others.The court then offered counsel the opportunity to do so, but defense counsel declined, stating that the jurors likely were committed to the responses they already had given.The court accepted the verdict, and denied counsel's contemporaneous motion for a mistrial and subsequent motion for a new trial.In ruling on the latter motion, the court found that the jury had not substituted the dictionary definition of reasonable for the definition contained in the charge, and rejected the contention that its method of interrogating the jury was inappropriate.

II.

A jury's use of a dictionary to define a relevant legal term is error, but it is not prejudicial per se.United States v. Griffith, 756 F.2d 1244, 1251-52(6th Cir.), cert. denied, 474 U.S. 837, 106 S.Ct. 114, 88 L.Ed.2d 93(1985).

When a jury makes unauthorized use of a dictionary, the trial judge should determine whether the jury actually substituted the dictionary definition of a legal term for that given in the instructions.If any jurors substituted the dictionary definition, the court should determine whether any use of the dictionary definition resulted in prejudice to the defendant.After the judge makes the required investigation, the decision whether to grant a new trial should be reviewed only for abuse of discretion.

Id. at 1252(citations omitted; emphasis added).In reaching its decision, Griffith followed United States v. Pennell, 737 F.2d 521(6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921(1985), where it had held that a defendant claiming prejudice due to a third party's unauthorized communication with the jury...