United States v. Campbell

• Decision Date: 13 February 1956
• Docket Number: Crim. No. 4332.
• Citation: 138 F. Supp. 344
• Parties: UNITED STATES of America, Plaintiff, v. John Raymond CAMPBELL, Defendant.
• Court: U.S. District Court — Northern District of Iowa

138 F. Supp. 344

UNITED STATES of America, Plaintiff, v. John Raymond CAMPBELL, Defendant.

Crim. No. 4332.

United States District Court N. D. Iowa, W. D.

February 13, 1956.

F. E. Van Alstine, U. S. Dist. Atty., Philip C. Lovrien, Asst. U. S. Dist. Atty., Sioux City, Iowa, for plaintiff.

Zigmund Chwirka, Sioux City, Iowa, for defendant.

GRAVEN, District Judge.

The defendant was indicted in six counts for falsely assuming and pretending to be an employee of the Veterans Administration in violation of 62 Stat. 742 (1948), 18 U.S.C.A. § 912. Each count related to a separate transaction. There were six complaining witnesses. Shortly after the jury retired the jury, by the foreman, transmitted a written communication to the Court. The jury were returned to the court room, and in the presence of counsel and the defendant the written communication was then read. In the communication it was stated that the jury were uncertain as to which evidence related to each count and requested that the testimony of the six complaining witnesses be read to them and that they be allowed to take notes as the testimony was read. Out of hearing of the jury counsel for the defendant made objection to the reading of the testimony of the complaining witnesses unless the testimony of the defendant relating to the transaction testified to by such witnesses was also read. He also made objection to the taking of notes by the jurors as the testimony was read. The Court made inquiry of the jury as to whether they desired any other testimony to be read other than the testimony of the complaining witnesses. The jury replied that they did not desire any other testimony to be read. The Court then ruled that the testimony of the six complaining witnesses be read to the jury and that the testimony of the defendant relating to the transactions testified to by such witnesses need not be read. The Court further ruled that the request of the jurors for leave to take notes as the testimony was read be granted. This opinion relates to those rulings.

Since the advent of the reporting of trials by court reporters,¹ it has not been uncommon for a jury deliberating upon a case to request the Court to have the reporter read to them the testimony of a certain witness or witnesses. When such a request is made, it is not uncommon for the party as to whom the testimony is unfavorable to object to the reading of it at all or to object to the reading of it unless other testimony contradicting it is also read. It is well established that it is proper for the trial judge to grant the request of a jury for the reading of certain testimony by the court reporter and to deny the request of a party to also have read other testimony relating to the same subject matter. United States v. Rosenberg, 2 Cir., 1952, 195 F.2d 583, 598-599, certiorari denied 1952, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652, rehearing denied 1952, 344 U.S. 889, 73 S.Ct. 134, 97 L.Ed. 687; State v. Perkins, 1909, 143 Iowa 55, 120 N.W. 62, 21 L.R.A.,N.S., 931, 20 Ann. Cas. 1217; Phillips v. Carlson, 1955, 178 Kan. 206, 284 P.2d 604; Autry v. State, 1949, 34 Ala.App. 225, 38 So.2d 348.

The question arose during the trial in United States v. Rosenberg, supra. In the opinion in that case, 195 F.2d 598-599, the following appears:

"The jury, during its deliberations, asked for a reading of that part of Ruth Greenglass' testimony covering the period from the time Rosenberg first approached her for espionage to the return of her husband to New York in 1945. Out of the jury's presence, defense counsel then asked the judge to have read to the jury the cross-examination covering the same period. The judge said he would not, without an express request from the jury. After the direct had been read to the jury, the judge asked them if they had what they wanted, and they said yes. Defense counsel, then, in the jurors' presence, again requested that the cross-examination be read. The judge at once replied that he would read only what the jury asked for. The jurors remained silent. Defense counsel objected. They now argue that the failure to comply with their request was prejudicial error. We think not. We think that the jury understood from the colloquy that the cross would be read if the jurors so desired, and that their silence meant they had no such desire. * * * Accordingly, we hold that the refusal to have the cross read was within the trial judge's discretion."

The Iowa case of State v. Perkins, supra, is one of the leading cases on this subject. In the opinion in that case, 120 N.W. at page 63, the following statement appears:

"After the jury had deliberated on the case several hours, it returned to the courtroom, and asked that the entire testimony of one witness and certain parts of the testimony of other witnesses be read from the shorthand notes of the trial. Whereupon the court, with counsel all present, directed the reporter to read the desired testimony, and it was read, and thereafter the defendant objected thereto. There was no error in the proceeding."

The Court goes on to state, 120 N.W. at pages 63-64:

"The contention of the appellant is that the testimony was given undue prominence by such reading, and that the jurors should have been compelled to depend upon their individual recollection of it. The testimony is reported so that it may become a part of the permanent record, and thus assist in the administration of justice in both civil and criminal cases. The lawyers depend upon the report in the future progress of the case, and a translation thereof furnishes this court its only means of determining disputed questions as to the record. In argument to the jury, attorneys may refresh their recollections by reading from the notes. McConkie v. Babcock, 101 Iowa 126, 70 N.W. 103. And we know of no sound reason why the memories of jurors may not be stimulated in the same way. It will certainly promote justice in all cases if the triers of fact understand and remember the evidence upon which the case must rest and be determined, and, where there is an honest doubt in the mind of a juror as to what was said by a witness, it cannot be prejudicial to any one to have such doubt removed by a rehearing of such testimony. And this is particularly true in view of our statutes on the subject. We have been cited to no case directly in point, but in Herring v. State, 1 Iowa 205, there was a holding analogous to our conclusion here. Fleming v. Town of Shenandoah, 67 Iowa 505, 25 N.W. 752, was a case where the reporter went into the jury room, and, in the absence of court and counsel and without the knowledge of the defendant or counsel, read from his notes made at the trial such portions of the testimony as the jury called for. That case is clearly not controlling here."

There are several other Iowa cases holding that it is proper to grant the request of a jury for the reading of designated testimony. State v. Strable, 1940, 228 Iowa 886, 293 N.W. 441; State v. Hunt, 1900, 112 Iowa 509, 84 N.W. 525.

In the case of State v. Strable, supra, the following statement appears, 293 N.W. at page 444:

"During the jury's deliberations, they requested the court to read to them the testimony of the sheriff, his deputy and appellant. The request was modified and the testimony of the sheriff was read to the jury. The foreman then said, `I believe what he has read is sufficient.' Counsel for appellant excepted and, after the jury had again retired, requested that all of the testimony of the deputy and appellant be also read. This request was denied, because of the jurors' statement that sufficient record had been read. There was no error in such ruling."

The objection most frequently made is that the reading of a portion of the testimony in the case will place undue emphasis thereon. In the case of Autry v. State, supra, the court states, 38 So.2d at pages 352-353:

"While charges which tend to emphasize certain phases of the evidence are faulty, and the giving of such charges is erroneous, the vice of such charges is that the emphasis of particular portions of the evidence emanates from sources outside the jury, an influence not permissible. Where a jury itself requests that certain testimony be read over to them by the court reporter, to refresh their recollection concerning it, the emphasis on this portion of the testimony is already inherently present in the jury's mind, and certainly the mere rereading of the requested portion of the testimony, to clarify the jury's recollection thereof cannot add any emphasis not already present as to such testimony. No error therefore resulted from the court's action in permitting the court reporter to read to the jury, at their request, and with the implied consent of the appellant, that portion of prosecutrix's testimony which was read to the jury."

In the case of Phillips v. Carlson, supra, the court states, 284 P.2d at pages 606-607:

"In the trial of an action, if the jury, after hearing the evidence and after having been instructed by the court and retired to its room, disagrees as to the testimony of a certain witness, it is not error for the court at the request of the jury, in the presence of or after notice to the parties or their counsel, to require the official court reporter to read the testimony of the witness which is in dispute, and which was taken down by him when the witness was on the stand. When this is done, the objection that undue emphasis is given the evidence thus read cannot be sustained. State v. Logue 115 Kan. 391, 223 P. 482; 53 Am.Jur. 666; 64 C.J. 1044; 89 C.J.S., Trial, § 479, p. 126. The court did not err, in the absence of the jury's request to have the testimony re-read of other witnesses bearing on the same subject."

The fact that the reading of the testimony requested by a jury will consume considerable time apparently does not justify the trial court in refusing such request. In the case of State v. Palmer, 1952, 173 Kan. 560, 251 P.2d...