State v. Shumway

FROEB, Presiding Judge,

dissenting:

In my opinion, reversal of this conviction and retrial of the case is clearly unwarranted.

The majority holds that reversal is required because of the written response given by the trial judge to a question from the jury. I disagree for several reasons.

It is error for a trial judge to communicate with the jury after it has retired to deliberate, unless counsel have been notified and given an opportunity to participate. Whether it is reversible error to do so depends upon several other factors. None of the eases referred to by the majority announce an absolute, per se rule. Each deals with a different fact situation.

Unlike the situation in State v. Werring, 111 Ariz. 68, 523 P.2d 499 (1974) and State v. Hilliard, 133 Ariz. 364, 651 P.2d 892 (App.1982) where the appellate court ordered a new trial after the trial judge entered the jury room to talk with the jurors, the judge in the present case sent a written response to the jury. Thus there is no question as to the content of the communication. A presumption of prejudice arises only where it is impossible to ascertain the impact of the communication upon the jury. State v. Mata, 125 Ariz. 233, 241, 609 P.2d 48, 56, cert. denied 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d 161 (1980). That is not the case here.

The charge in this case is negligent homicide, not D.W.I. The State is required to prove death of another by criminal negligence. Criminal negligence involves failure to recognize a substantial risk that the conduct will result in the death of another person. The effect of alcohol upon the conduct of the defendant is clearly a factor to *605be taken into account by the jury, as it did in this case.

During their deliberation, the jury asked the judge “what blood-alcohol level is considered illegal in the State of Arizona and or Glendale?”

The judge’s response, while given without consultation with counsel, was legally correct and soundly put to rest an inappropriate concern of the jury. He said:

There is no law in Arizona that states a specific blood alcohol level that is legal or illegal. The blood alcohol level is one fact to be considered with all of the other facts.

I disagree that it incorrectly stated the law or constituted a comment on the evidence.

In my opinion, the error of failing to notify counsel before giving the written instruction was harmless beyond a reasonable doubt in this case.

The only remaining issue relates to the rejection by the trial judge of defendant’s requested Instruction 1 quoted in the majority opinion. I find no error in this ruling. The instruction points only to potential contributory negligence of the victim which is not an issue in this criminal proceeding. Negligence of the deceased may be considered, however, with reference to the question of whether the defendant’s conduct was the proximate cause of the death. While it might have been appropriate for the trial court to have given further instructions to the jury relating to causation, none were offered by defendant. In my opinion, the trial court did not err in refusing defendant’s instruction as offered.