Jimmy Easley and Vicky Wagner Easley v. State of Arkansas

DIVISION I

CACR00-144

FEBRUARY 14, 2001

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE CA00-226

JIMMY EASLEY AND

VICKY WAGNER EASLEY

APPELLANTS AN APPEAL FROM THE CLARK COUNTY CIRCUIT COURT

v. [CR98-100, CR98-101]

STATE OF ARKANSAS HONORABLE JOHN A. THOMAS

APPELLEE CIRCUIT JUDGE

REVERSED and REMANDED

Appellants, Jimmy Easley and Vicky Wagner Easley, appeal a judgment of the Clark County Circuit Court convicting them of manufacture of a controlled substance (marijuana) and possession of drug paraphernalia for which they were each sentenced to twenty years' imprisonment in the Arkansas Department of Correction. We reverse the conviction and remand for a new trial.

Appellants argue two points for reversal of the court's judgment entered pursuant to the jury's verdict. For their first point on appeal, appellants urge that the trial court erred by communicating with the jury after it began deliberations in violation of Arkansas Code Annotated section 16-89-125(e) (1987). For their second point, appellants contend the court erred in allowing the State to introduce thirty-nine exhibits that the State did not produce inresponse to the defense motion for discovery. Because we conclude that appellants' first point states a meritorious ground for reversal we do not reach their second point on appeal.

During its deliberations, the jury sent two notes containing questions to the trial judge. The first note asked, "If we don't all agree on the verdict, what happens?" Upon receipt of the note, the trial court informed the prosecutor and appellants' attorney of the question. Without objection from either party, the court decided to refer the jury to instruction number nineteen which provided that all twelve jurors must agree on the verdict, but that only the foreperson must sign the verdict form. Although the court stated the need to retain the jury's note and the court's note so that they could be made part of the record, the record does not contain either the jury's note or the court's answer.

The jury's second note is contained in the record and asks whether a certain picture, marked as Exhibit 47, was entered into evidence and if the picture was entered into evidence, whether there was some written documentation as to exactly what the photograph purportedly represents. The record reflects that the prosecutor had withdrawn Exhibit 47. When discussing the jury's note, however, the court and counsel could not remember whether the exhibit had been withdrawn. Nonetheless, the court decided and the attorneys agreed that even if the exhibit had been withdrawn, the jury had the exhibit in front of it and nothing could change that fact. Without objection, the court then sent the jury a note stating, "You have heard all of the evidence and seen all of the exhibits which you are to consider." The court's second note is also included in the record.

Arkansas Code Annotated § 16-89-125(e) (1987) provides:

After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.

The section mandates that a jury which has retired to deliberate be brought into open court before any information may be given to it, that noncompliance gives rise to a presumption of prejudice, and the State has the burden of overcoming that presumption. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997). Strict compliance, however, is not necessary, if the record shows exactly what was communicated to the jury outside of open court. Houston v. State, 41 Ark. App. 67, 848 S.W.2d 430 (1993) (holding that the State rebutted the presumption of prejudice because the note that the trial judge used to answer the jury's question was included in the record). Notwithstanding an agreement between the parties as to how the trial judge should answer an inquiry, absent a record of the actual exchange between the judge and the jury, the State cannot overcome the presumption that the defendant has been prejudiced. Goff v. State, supra.

In the present case, like in Goff, the State did not meet its burden of establishing what the trial judge's note to the jury actually said. As in Goff, the trial judge's violation of § 16-89-125(e) must be deemed prejudicial to Mr. and Mrs. Easley and the State has not rebutted that presumption.

Reversed and remanded.

Robbins and Griffen, JJ., agree.