Phillip Parker v. State of Arkansas

ar04-231

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR04-231

FEBRUARY 9, 2005

PHILLIP PARKER AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR2003-2634]

v.

HONORABLE BARRY ALAN SIMS,

STATE OF ARKANSAS JUDGE

APPELLEE

REVERSED AND REMANDED

Olly Neal, Judge

A Pulaski County jury found appellant Phillip Parker guilty of the offense of rape and sentenced him to ten years' imprisonment in the Arkansas Department of Correction. On appeal, appellant alleges that the trial judge erred when he entered the jury room and spoke with the jurors during deliberations. We agree and, therefore, reverse and remand.

The relevant facts of this case are as follows. On July 18, 2003, the State filed a felony information alleging that appellant had committed the offense of rape and fourth-degree sexual abuse. The charges stemmed from appellant's relationship with his step-cousins, H.B. and K.B., who were ages fourteen and thirteen at the time of the alleged offenses. A jury trial was held in the Pulaski County Circuit Court on October 28, 2003. After hearing all the evidence and receiving the jury instructions, the jury retired to the jury room to deliberate at 3:08 p.m. At around 5:13 p.m., the jury sent out a note addressed to the trial judge and the following transpired:

The Court: All right, I've been handed a note from the jury asking four questions:

1. Where is the ficacal evidance [sic].

2. Doctor report.

3. Can we see the witness statement or report.

4. Where is the state crime report.

And I believe all I can respond is that you have to refer to the evidence and instructions you've been given.

Appellant's Counsel: I believe that's probably correct, Your Honor.

The Court: I responded, "You must refer to the evidence and instructions you have been given," and I'm going to go hand this note back to the jury. Anybody have anything to add? Okay, thank you very much.

Appellant's Counsel: Your Honor, could we ask that the bailiff actually send it back to the jury just so they will - if they have any questions -

The Court: He's got a prisoner.

Bailiff: I'll get Fred.

Appellant's Counsel: And we'd want to make that note a part of the record.

The Court: It'll be part of the record.

Appellant's Counsel: Thank you, Your Honor.

The Court: Okay, you-all are excused.

At 5:41 p.m., the jury returned with its verdict. Following the polling of the jury, the following occurred:

Appellant's Counsel: Your Honor, I need to make a motion at this point. I'm going to make a motion for a mistrial. And based on the note that we got from the jury, which we've made a part of the record of the jury requesting to see information that shows that they had some questions about what was going on. And immediately before that the jury had a question that was addressed off the record and you - they addressed a question off the record that it was a hung jury is what I was told. That didn't happen?

The Court: No.

Appellant's Counsel: There wasn't a question.

The Court: No.

Appellant's Counsel: Of a hung jury off the record?

The Court: They said - they told the bailiff they were hung, but there was no question.

Appellant's Counsel: Right. And we went back in chambers and addressed that with the defendant present -

The Court: Right.

Appellant's Counsel: There was a hung jury.

The Court: Yes.

Appellant's Counsel: And we agreed that they should continue deliberating and I asked for an instruction on dynamiting them and that was what we did.

The State: No, the dynamite instruction has never been read to them.

Appellant's Counsel: You objected to it, right? You objected to the judge reading a dynamite instruction.

The Court: She didn't object; she just suggest that we tell them to -

The State: Give it some more time.

The Court: - give them some more time.

Appellant's Counsel: Okay.

The Court: And you agreed to that.

Appellant's Counsel: And I agreed to doing that. And at that point, though, Your Honor, you went back into the jury room and addressed the jury personally.

The Court: Like you told me to.

Appellant's Counsel: I don't know if I told you to do it, but it's something that should be done. [sic] And it probably should have been done, I guess, by someone other than you. And the rules, I don't believe, allow for the judge to do that off the record and of going to the jury room. And so I'm going to ask the Court to grant a mistrial.

The State: That's not a basis for a mistrial.

The Court: That's not a basis for a mistrial.

Appellant's Counsel: And the rule I'm relying on is 16-64-115 of the Arkansas Code Annotated. I don't think it was proper for the Court to go and talk to the jury under those circumstances or probably - or probably any circumstance.

The State: I guess the State's position on that would be that if [Appellant's Counsel] had an objection to that, it should have been raised before he assented to the Court leaving the room and informing the jury of the decision that had been reached by all parties.

The Court: [Appellant's Counsel,] you're the one that told me to go back there and tell them to work on it some more.

Appellant's Counsel: Your Honor, I don't run the court.

The Court: That's right, I do.

Appellant's Counsel: I know.

The Court: And we were standing there and you said, "Yeah, go tell them to work on it some more." So I'm denying your motion.

Appellant's Counsel: Thank You.

It is from this that appellant now brings this appeal.

Arkansas Code Annotated section 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.

Non-compliance with this statutory provision gives rise to a presumption of prejudice, and the State has the burden of overcoming that presumption. Atkinson v. State, 347 Ark. 336,64 S.W.3d 259 (2002). The failure of a defendant and his counsel to be present when a substantial step occurs, such as the judge's answering questions of the jury, violates the defendant's fundamental right to be present at any stage of the criminal proceeding that is critical to the outcome. Fisher v. State, 84 Ark. App. 318, 139 S.W.3d 815 (2004). However, it has been held that strict compliance with the rule was waived where the attorneys went with the judge to the jury room, everything that happened was reported in the record, and there was no possibility of prejudice. Atkinson v. State, supra.

In the case at bar, section 16-89-125(e) was violated and a presumption of prejudice arose when the trial judge, in the absence of appellant and appellant's counsel, entered the jury room. The State failed to rebut the presumption of prejudice.1 Accordingly, we must reverse and remand.

Reversed and remanded.

Gladwin and Robbins, JJ., agree.

1 On August 25, 2004, we denied the State's motion asking us to remand to settle the record. The denial of this motion has no bearing on the case at bar, because there is no way to reconstruct what was actually said and what actually happened when the trial judge entered the jury room.