Friday, February 23, 2007

Court's Response to Jury Question Was Not "Critical Stage of the Proceedings"

United States v. Hillsman, No. 06-20087 (5th Cir. Feb. 22, 2007) (Higginbotham, Smith, DeMoss)

Hillsman was tried on charges of possession of crack and possession of a firearm in furtherance of a drug trafficking offense. The only evidence at trial linking Hillman to the crack was one Officer Oliver, who testified that he saw Hillsman drop the crack in a trash can.

After deliberating for five hours, the jury sent out a note asking, "Is there any other information about Officer Oliver? Account of the incident that we may consider?" After discussing the note with the case manager (?) "off the record and outside the presence of the judge," both the prosecutor and defense counsel agreed to suggest that the judge respond with: "No. Please refer to your jury instructions." The case manager told counsel that the jury would break for the day, and forwarded the suggested response to the judge. But before the jury left, the district court, without notifying counsel, sent a note to the jury that said, "No. I am sorry." Defense counsel did not learn of the note until after the jury had returned its guilty verdict.

Hillsman argued on appeal (as he had in a motion for new trial) that "the court's failure to disclose its response to the jury violated his client's Sixth Amendment right to counsel[,]" the issue being whether the response constituted a "critical stage of the proceedings."

The court pointed to case law from other circuits "recogniz[ing] a distinction between the primary set of instructions contained in the court’s charge and later repetition of instructions, [and] explaining that the 'rereading of identical jury' instructions is not a critical stage of a criminal trial' and that 'reading instructions to the jury is not a critical stage of the proceedings if trial counsel has previously agreed to the instructions.'" Slip op. at 4-5. The court went on to hold that the district court's response to the jury was not a critical stage of the proceedings because 1) the response "was not materially different from that sought by counsel[,]" 2) "the surplus phrase 'I'm sorry' was no more than a polite expression added to the negative response[,]" and 3) "a reasonable juror would [not] have understood the judge to be expressing his disappointment in being unable to disclose information about Officer Oliver or the incident that was not in the record." Slip op. at 5. Because the response was not a critical stage, there was no Sixth Amendment violation and the court affirmed Hillsman's conviction.


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