Darrell V. McGraw, Jr., Esq.
Michael J. Sharley, Esq.
Attorney General Westover, West Virginia
William S. Steele, Esq. Attorney for Appellant
Managing Deputy Attorney General
Charleston, West Virginia
Attorneys for Appellee
CHIEF JUSTICE STARCHER delivered the Opinion of the Court.
JUDGE ROBERT B. STONE, sitting by special assignment.
JUSTICE SCOTT did not participate in the decision of the Court.
Starcher, Chief Justice:
The appellant, John Shabazz (Shabazz), appeals the denial of his magistrate
appeal by the Circuit Court of Marion County, following Shabazz's conviction of battery in
the Marion County Magistrate Court. Shabazz contends that the circuit court erred in failing
to grant him a new trial on his appeal from the magistrate court. Shabazz contended that he
was prejudiced because the presiding magistrate had ex parte communications with the jury
during the jury's deliberations.See footnote 1
Following our review of the record, we affirm the circuit
court's order of February 26, 1999, denying Shabazz's magistrate appeal.
On December 11, 1997, Shabazz had a magistrate court jury trial on the charge
of battery.See footnote 2
During the course of the trial the jail corrections officer who was the victim of
the battery testified that Shabazz had asked for a towel, but was informed that no towel was
then available. The corrections officer testified that he told Shabazz to use a pillowcase for
drying until a towel could be located. According to the corrections officer, Shabazz became
belligerent and committed battery on the officer.
The testimony of Shabazz differed from that of the corrections officer. Shabazz testified that he calmly refused to use his pillowcase to dry himself and continued to ask the corrections officer for a towel. Shabazz stated that the corrections officer eventually shoved Shabazz into his cell, where both men fell on the floor. Shabazz stated that while he was on the floor he was maced until he was subdued. In support of Shabazz's statements, two fellow inmates testified that Shabazz had not raised his voice or acted belligerently toward the corrections officer.
After the magistrate court jury deliberated for approximately 2½ hours, Magistrate Melissa Pride, the presiding magistrate, entered the jury room and spoke to the jury out of the presence of the defendant and his counsel, and without their knowledge.
No record of the conversation between Magistrate Pride and the jury was made. The record before us does not indicate how or when the defendant became aware of the conversation between Magistrate Pride and the jury. The jury returned with a guilty verdict shortly after the communication with Magistrate Pride.
Following the verdict, the defendant filed a motion for a mistrial. The motion was heard by Magistrate Pride. At the hearing, Magistrate Pride explained that she had entered the jury room to inquire how the jury was getting along with its deliberations. Upon being told that the jurors were still deliberating, the magistrate stated that she informed the jurors that they could either stay as long as they wanted, or they could go home and return the next day.See footnote 3 3 Magistrate Pride denied the defendant's motion for a mistrial.
The defendant was subsequently sentenced to 30 days in the Marion County Jail.
The defendant appealed to the circuit court. The defendant's appeal was denied and the sentence was ordered to be executed. The matter was then appealed to this Court.
The right to be present is not a right to be present at every moment, but a right
to be present at all critical stages in a criminal proceeding. We have not held that
communication by a judge or other court officer with a jury is always a critical stage for the
purpose of requiring the defendant's presence.
But while we have not held communication with a jury is always a critical stage, we have repeatedly expressed concern with the practice of judges or court officers communicating with a jury.
In State v. Allen, 193 W.Va. 172, 455 S.E.2d 541 (1994), the circuit court judge responded to written notes from the jury without the knowledge of the defendant or his counsel. We held this was improper and stated that [t]he proper method of responding to a written jury inquiry during the deliberations period in a criminal case . . . is for the judge to reconvene the jury and to give further instructions, if necessary, in the presence of the defendant and counsel in the courtroom. Syllabus Point 3, Allen, supra. Relying on a civil case, we stated that [a]s a general rule, all communications between the trial judge and the jury, after the submission of the case, must take place in open court and in the presence of, or after notice to, the parties or their counsel. Syllabus Point 1, Klesser v. Stone, 157 W.Va. 332, 201 S.E.2d 269 (1973).
A similar situation occurred in State v. Smith, 156 W.Va. 385, 390, 193 S.E.2d 550, 554 (1972), where we said [t]he passing of writings or notes between the court and jury is not proper. In State v. Barker, 176 W.Va. 553, 556, 346 S.E.2d 344, 347 (1986) (per curiam), we held that the conduct of the trial judge in communicating with the jury, in the absence of the appellant and his counsel, was improper. Similarly, in State v. Hicks, 198 W.Va. 656, 663, 482 S.E.2d 641, 648 (1996) (per curiam) we stated that the circuit court judge erred when she sent the court clerk to speak with the jurors, in the absence of the defendant, of the attorneys, and the judge herself.
By communicating directly with a jury without the presence of the defendant or the defendant's counsel, a magistrate may give the appearance of impropriety. A judge shall respect and comply with the law, shall avoid impropriety and the appearance of impropriety in all of the judge's activities, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2 of the Code of Judicial Conduct . That such ex parte communication gives rise to the appearance of impropriety was articulated in U.S. v. Burns, 683 F.2d 1056 (7th Cir. 1982) (per curiam), cert. denied, 459 U.S. 1173, 103 S.Ct. 821, 74 L.Ed.2d 1018, wherein the court stated:
Two important interests are undermined by private discourse between judge and jury during deliberations. First, it gives rise to Star Chamber implications which detract from the appearance of justice. Second, it absolutely precludes the parties from making a record as to the context in which the judge's remarks were made, thereby thwarting appellate review; the parties and this court must remain forever in the dark as to the judge's tone of voice and physical demeanor while he was in the jury room. An additional concern implicated . . . is the risk that the judge will be drawn into an extended discourse with the jury, thereby disturbing the delicate balance of the legal principles set forth in the original instructions.
683 F.2d at 1058-1059.
Because communication with a jury during deliberations without the presence of the defendant or defendant's counsel gives rise to such perils as set forth in Burns, we hold that absent extraordinary circumstances, a magistrate may not communicate with a jury after the jury has begun its deliberations, except in open court, in the presence of or with the consent of the parties or the consent of their counsel.See footnote 5 5
Having articulated this rule, we recognize that the rule cannot be applied with unreasonable inflexibility. It is obvious that innocent and incidental contact and communications that do not meet the requirements of this rule might occur between magistrates and jurors during the course of a trial. While it is expected that magistrates hereafter avoid such communications, in the instant case we look to determine if the communication was in any way prejudicial to the defendant.
It is uncontroverted that Magistrate Pride entered the jury room during deliberations and inquired about the jury's progress. While there is a dispute about exactly what Magistrate Pride said to the jury, both sides agree that she informed the jury that it could continue its deliberations, or return the following day.
The defendant contends that the statements by Magistrate Pride may have caused the members of the jury to believe they had to quickly come to a decision, or be forced to give up another day of work and return to deliberate.
Magistrate Pride's message might be considered similar to an Allen charge. An Allen charge is a supplemental instruction given to encourage deadlocked juries to reach an agreement. F. Cleckley, 2 Handbook on West Virginia Criminal Procedure, at 257 (1993). Dealing with an Allen-type charge, we have stated that
[w]here a jury has reported that it is unable to agree and the trial court addresses the jury urging a verdict, but does not use language the effect of which would be to cause the minority to yield its views for the purpose of reaching a verdict, the trial court's remarks will not constitute reversible error.
Syllabus Point 2, State v. Johnson, 168 W.Va. 45, 282 S.E.2d 609 (1981).
Taking the defendant's summary of what transpired in the jury room as true, we do not find that the statements made by the magistrate would tend to cause any juror advocating a not guilty verdict to abandon his or her beliefs and vote guilty. According to the defendant, Magistrate Pride simply stated that the jury could continue its deliberations or return the following day. We believe these statements were administrative in nature -- the statements relating to the jury's schedule. Consequently, we find that the State has met its burden, under Boyd, supra, of proving beyond a reasonable doubt that what transpired in the defendant's absence was harmless.