STATE V. MCCLURE, 1980-NMCA-067, 94 N.M.
440, 612 P.2d 232 (Ct. App. 1980)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
TERRY GENE McCLURE, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1980-NMCA-067, 94 N.M. 440, 612 P.2d 232
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, LOVE, Judge.
Motion for Rehearing Denied May 20,
1980
JOHN B. BIGELOW, Chief Public Defender,
Santa Fe, New Mexico, GEORGE Z. GUZOWSKI, Assistant Public Defender,
Albuquerque, New Mexico, Attorneys for Appellant.
JEFF BINGAMAN, Attorney General, JOHN G.
McKENZIE, JR., Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Appellee.
Hendley, J., wrote the opinion. WE CONCUR:
Mary C. Walters, J., Leila Andrews, J.
{1} Summary reversal was
proposed. The State has responded by a timely memorandum in opposition,
contending that reversal is improper. They have attached the affidavit of the
assistant district attorney involved in the case and a partial transcript.
{2} The trial court received
a communication from the jury. After consultation with the attorneys involved,
the court responded by a written note submitted to the jury through the
bailiff. There is no complaint on appeal that the court's response was
incorrect, either factually or as a matter of law.
Compare State v. Stephens,
93 N.M. 458,
601 P.2d 428 (1979). The defendant's contention is that a
presumption of prejudice arose due to his absence during the discussion of the
question and when the response was sent to and received by the jury.
{3} The transcript of
proceedings supplied by the State establishes that the defendant was not
present either when the jury's question was discussed or when the court's response
was sent to the jury.
Compare State v. Cranford,
92 N.M. 5,
582 P.2d 382
(1978). The trial court accepted defense counsel's statement that the defendant
was "sleeping in the hallway." In
State v. Saavedra,
93 N.M.
242,
599 P.2d 395 (Ct. App. 1979), this Court held that the defendant's right
to be present was not violated where the court responded to the jury question
with a written note. Although the use of the written response constituted a
communication and the defendant was not and could not have been present when
the jury read the response, the defendant waived the right to be present when
the communication was received and read by the jury because the defendant was
present when the response was sent to the jury.
Saavedra, thus,
indicates that an "in open court" response is not necessary so long
as the defendant is present when the response is sent.
{4} In this case, the
defendant was not present when the communication was sent. The communication
was by the trial judge and touched the subject matter of the trial.
Compare
State v. Clements,
31 N.M. 620,
249 P. 1003 (1926). A "presumption
of prejudice," therefore, arose.
State v. Orona,
92 N.M. 450,
589
P.2d 1041 (1979);
State v. Brugger,
84 N.M. 135,
500 P.2d 420 (Ct. App.
1972).
{5} Given this presumption of
prejudice, the State asserts that the presumption was overcome.
Compare
State v. Orona, supra, where no effort was made to overcome the
presumption. At the hearing below, wherein the trial court considered this
issue, it specifically found that the prejudice had
{*442}
been overcome because "I don't think the Defendant would have been in
any position to advise his counsel as to what should have been done."
See
State v. Lee, 585 P.2d 58 (Utah 1978). At most, however, the trial court's
ruling could only extend to the discussion of the response to be submitted --
the defendant need not be present during the discussion of legal matters.
Compare
Wharton's Criminal Procedure, Section 483 with Section 480, 12th ed. (1975);
See
State v. Mantz, 222 Kan. 453, 565 P.2d 612 (1977);
State v. Snyder,
223 N.W.2d 217 (Iowa 1974). Counsel's presence does not act as a waiver of the
defendant's presence.
Bustamante v. Eyman, 456 F.2d 269 (9th Cir. 1972).
{6} To determine whether the
presumption has been rebutted, the purpose of the presumption must be analyzed.
Upon showing a communication between the trial court and the jury in the
absence of the defendant, the defendant has satisfied his burden, as an
evidentiary matter, that the communication improperly affected the verdict.
Thus, to overcome the presumption, the State must show that the communication
did not affect the verdict. In so analyzing the presumption, it must be held
that the trial court's reason for finding that the presumption has been
overcome is unpersuasive.
{7} In
State v. Brugger,
supra, this Court held that the State had failed to prove that the
presumption had been overcome, due to the failure to show that the response to
the question came after the jury had reached a verdict.
Compare State v. Maes,
81 N.M. 550,
469 P.2d 529 (Ct. App. 1970);
State v. Costales, 37 N.M.
115,
19 P.2d 189 (1933). The presumption is overcome whenever the State shows
that the improper communication occurred after the jury was "ready to
return a verdict."
State v. Maes, supra. The State does not claim
in this case that the jury had already reached its verdict before the
communication was made.
{8} Other jurisdictions have
held that the presumption of prejudice may be overcome where the improper
communication to the jury was merely a restatement of an instruction already
given.
See Bustamante v. Cardwell, 497 F.2d 556 (9th Cir. 1974);
Jackson
v. Hutto, 508 F.2d 890 (8th Cir. 1975);
People v. Musser, 53 Mich.
App. 683, 219 N.W.2d 781 (1974). The record shows that the court's response in
this case was more than a reference to an already given instruction. The
response was the definition of "false signature."
{9} We, therefore, hold that
there is nothing in either the State's memorandum in opposition or in the
transcript of proceedings submitted as part of the memorandum to suggest that
"the communication was harmless and had no effect on the verdict."
State
v. Costales, supra. The trial court incorrectly denied defendant's motion
for a new trial.
WE CONCUR: Mary C Walters, J., Leila Andrews, J.