No. 94-608
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
CHARLES MOSES GRAVES,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, State Appellate Defender, Helena,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Elizabeth L.
Griffing, Assistant Attorney General, Helena,
Montana; Thomas J. Esch, Flathead County Attorney,
Ed Corrigan, Deputy Flathead County Attorney,
Kalispell, Montana
Submitted on Briefs: September 28, 1995
Decided: December 14, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Charles Moses Graves (Graves) was convicted by a jury of
felony theft and burglary. During the trial, the District Court
for the Eleventh Judicial District, Flathead County, permitted
jurors to submit written questions to be asked of witnesses at the
conclusion of their testimony. Graves’ counsel objected to this
practice and it is on this basis that Graves appeals. We affirm.
The sole issue raised by Graves on appeal is:
Did the trial court deny Graves a fair trial by an impartial
jury, by permitting the jurors to pose questions during trial?
Background Facts
On February 28, 1994, Graves was charged by information with
burglary in connection with an early-morning incident in the
Kalispell Center Mall, where Graves was employed as a janitor. The
information was later amended to include a charge of felony theft.
The amended information charged that between February 4 and
February 5, 1994, Graves knowingly entered and remained unlawfully
in the Great Bear Bakery in the Kalispell Center Mall with the
purpose to commit the offense of theft, and that he obtained and
exerted unauthorized control over more than $500 in currency and
checks belonging to the owners of the bakery.
Graves entered pleas of not guilty to the charges and
proceeded to trial on May 16, 1994. Following voir dire and
outside the presence of the jury, the District Court inquired
whether either party wished to object to the court's standard
practice of permitting jurors to submit to the court written
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questions to be read to witnesses following their testimony.
Defense counsel objected to this procedure, while counsel for the
State argued that this was a matter for the court's discretion.
In his preliminary instructions to the jury, the trial judge
instructed the jury that they would be permitted to ask questions
of witnesses. In outlining the procedure to be followed, the judge
stated that "if at the conclusion of a witness' [testimony] you
feel that some significant ground has been left unturned or
something is not totally clear to you but could be clarified,
you're welcome to ask any number of questions you wish."
The trial judge instructed the jurors to write out their
questions and hand them to the bailiff who would then deliver them
to the judge for review. Both counsel were given the opportunity
to review the questions and make objections in a private side bar
with the court. The judge read the questions to the witnesses as
they were submitted and counsel were then permitted to ask follow-
up questions. In the course of the trial, the District Court
permitted 13 questions from the jury, including several questions
for the defendant at the conclusion of his testimony.
The jury found Graves guilty on both counts. At his
sentencing hearing, Graves admitted that he had committed the
burglary and theft. The District Court sentenced Graves to 20
years in the Montana State Prison for the burglary conviction and
IO years for the theft conviction. The sentences were to run
concurrently to each other, but consecutively to the sentences for
two prior convictions. Graves was also designated a persistent
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felony offender and sentenced to an additional IS years in the
Montana State Prison with 10 years suspended.
Discussion
Did the trial court deny Graves a fair trial by an impartial
jury, by permitting the jurors to pose questions during trial?
Graves argues that allowing the jurors to pose questions to
witnesses during his trial encouraged the jurors to become
advocates and jeopardized the adversarial nature of his trial.
Graves claims that juror participation in the presentation of
evidence encourages jurors to depart from their role as passive
listeners and assume an active adversarial or inquisitorial stance
and that this practice spawns premature deliberation by the jurors.
The State argues that allowing jurors to question witnesses is
within the sound discretion of the trial court and, if properly
structured and organized, this practice can be beneficial to both
parties. The State claims that there is no constitutional mandate
that jurors sit silently and passively accept the omission of
certain facts that may be helpful in rendering their decision. In
addition, the State points out that juror questions may bring to
the court's attention improper concerns which can be promptly
addressed with cautionary instructions.
While this Court has not previously addressed the issue of
whether jurors should be permitted to pose questions to witnesses
in a criminal trial, courts in other jurisdictions have struggled
with this issue for some time. A brief examination of some of
these cases is appropriate in resolving this issue.
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In 1970, in an opinion lacking any analysis of this issue, the
Ninth Circuit Court of Appeals held that allowing a juror to submit
a question to the court was not error. U.S. v. Gonzalez (9th Cir.
1970), 424 F.2d 1055, 1056.
Similarly, in 1979, the Fifth Circuit Court of Appeals
determined that the proper handling of juror questions is a matter
within the discretion of the trial judge. U.S. v. Callahan (5th
Cir. 1979), 588 F.2d 1078, 1086. In Callahan, the court of appeals
stated:
There is nothing improper about the practice of
allowing occasional questions from jurors to be asked of
witnesses. If a juror is unclear as to a point in the
proof, it makes good common sense to allow a question to
be asked about it. If nothing else, the question should
alert trial counsel that a particular factual issue may
need more extensive development. Trials exist to develop
truth. It may sometimes be that counsel are so familiar
with a case that they fail to see problems that would
naturally bother a juror who is presented with the facts
for the first time.
Callahan, 588 F.2d at 1086.
On the other hand, in a 1985 opinion, the Fourth Circuit Court
of Appeals pointed out that although it also believed that juror
questioning is a matter within the trial court's discretion, the
practice of juror questioning is "fraught with dangers which can
undermine the orderly progress of the trial to verdict."
DeBenedetto v. Goodyear Tire &Rubber Co. (4th Cir. 1985), 154 F.2d
512, 516. In this case, jurors were allowed to pose questions
orally in the presence of other jurors. The court of appeals
expressed its concern about jurors asking improper or prejudicial
questions and about jurors attaching more significance to answers
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to questions posed by jurors. DeBenedetto, 754 F.2d at 516-17.
However, because it could detect no prejudice to either party and
because appellants did not object to the procedure at the time of
trial, the court of appeals did not find error in the use of juror
questions in that case. DeBenedetto, 754 F.2d at 517.
A few years later, in U.S. v. Lewin (8th Cir. 1990), 900 F.2d
145, the Eighth Circuit Court of Appeals set forth certain
safeguards that should be used if a trial court decides to permit
jurors to ask questions of witnesses. In Lewin, the trial court
informed the jurors at the beginning of the trial that they would
be allowed to ask questions of each witness after cross-
examination. The jurors asked their questions orally and
objections were discussed at the bench, but within the presence of
the jury. Lewin, 900 F.2d at 147. The court of appeals stated
that if a trial court decides to permit jurors to ask questions, it
should consider requiring jurors to submit their questions in
writing, or orally out of the presence of the other jurors, and
without prior discussion with the other jurors. Lewin, 900 F.2d at
148.
In the case before us on appeal, Graves relies on a 1992 case,
Morrison v. State (Tex.Crim.App. 1992), 845 S.W.Zd 882, for his
contention that the risks posed by permitting jurors to question
witnesses in a criminal trial far outweigh any benefits. In
Morrison, the trial judge instructed the jury that following the
testimony of each witness, jurors could submit written questions to
the court to be asked of that witness. The court would rule on the
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questions outside of the presence of the jury. If a question was
ruled admissible, the judge would recall the jury and read the
question to the witness. Counsel would then be allowed to ask
follow-up questions limited to the subject matter of the juror's
question. During trial, a juror question was ruled inadmissible,
however, the prosecutor was allowed to present additional evidence
based on that question. Morrison, 845 S.W.2d at 883.
1n his appeal, Morrison claimed that juror questions amounted
to a form of communication between the jurors and the parties and
called into question the integrity of the adversary system.
Morrison, 845 S.W.2d at 884. The Court of Criminal Appeals of
Texas agreed holding that no authority established or authorized
jurors to ask questions of witnesses in the criminal jurisprudence
of Texas, therefore, permitting juror questions was error.
Morrison, 845 S.W.2d at 889.
The same year that Morrison was decided, the First Circuit
Court of Appeals held that allowing juror-inspired questions in a
criminal case is not prejudicial per se but is a matter committed
to the sound discretion of the trial court. U.S. v. Sutton (1st
Cir. 1992), 970 F.2d 1001, 1005. In Sutton, the jury was permitted
to ask questions of witnesses in writing. The judge reviewed the
questions and, if he determined they were relevant, he asked them
for the jury and then asked follow-up questions. Sutton, 970 F.2d
at 1003.
The appellant in Sutton asserted that the questioning of
witnesses by jurors in a criminal trial "is inherently prejudicial,
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invades counsel's province, distorts the roles of judge and jury,
and unfairly inhibits objections." Sutton, 970 F.2d at 1004. The
court of appeals disagreed holding that "the lower court's use of
a small number of juror-inspired questions, under carefully
controlled conditions, did not impinge upon the defendant's
substantial rights or tarnish the fundamental fairness of his
trial." Sutton, 970 F.2d at 1008.
Likewise, in U.S. v. Cassiere (1st Cir. 1993), 4 F.3d 1006,
the First Circuit Court of Appeals determined that the trial court
did not commit plain error in allowing eleven juror-inspired
questions to be asked of witnesses including four questions asked
of the defendant. The court of appeals found that the questions
asked were relatively bland in character and designed to clarify
and explain testimony already given. Cassiere, 4 F.3d at 1017.
However, the court of appeals stated that the practice should be
reserved for exceptional situations, and should not become the
routine, even in complex cases. Cassiere, 4 F.3d at 1018.
The courts in three recently decided cases took varying views
on the practice of permitting jurors to pose questions to
witnesses. In U.S. v. Bush (2nd Cir. 1995), 47 F.3d 511, 514, the
Second Circuit Court of Appeals stated that every circuit court
that has addressed this issue agrees that questioning by jurors is
a matter within the judge's discretion and is similar to witness-
questioning by the judge himself. Moreover, the court of appeals
claimed that state courts have overwhelmingly placed juror
questioning of witnesses within the trial judge's discretion.
Bush
-I 47 F.3d at 515. Nonetheless, the court of appeals
discouraged this practice in Bush finding that the practice risks
turning jurors into advocates, thereby compromising their
neutrality. -, 47 F.3d at 515.
Bush
The court of appeals pointed out that
the practice will often impale attorneys on the horns of
a dilemma. If attorneys object to questions posed by the
jurors, they risk alienating the jury. On the other
hand, foregoing objections will usually constitute a
waiver of even the most pernicious errors.
- I 47 F.3d at 515.
Bush
Several months later, that same court stated in U.S. v. Ajmal
(2nd Cir. 1995), 67 F.3d 12, 14, that
the practice of allowing juror questioning of witnesses
is well entrenched in the common law and in American
jurisprudence. Indeed, the courts of appeals have
uniformly concluded that juror questioning is a
permissible practice, the allowance of which is within a
judge's discretion. [citations omitted] Nonetheless, the
courts of appeals are similarly unified in their
disapproval of the general practice of juror questioning
of witnesses.
Hence, in Ajmal, the court of appeals determined that the trial
court had abused its discretion by allowing jurors to question
witnesses as a matter of course, as the practice should be reserved
for exceptional situations, and should not become routine, even in
complex cases. The court of appeals said that if allowed to
formulate questions throughout the trial, jurors may prematurely
evaluate the evidence and adopt a particular position as to the
weight of that evidence before considering all the facts. Aimal,
67 F.3d at 14.
Most recently, in U.S. v. Bascope-Zurita (8th Cir. 1995), 68
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F.3d 1057, the Eighth Circuit Court of Appeals determined that the
trial court did not err by permitting jurors to ask questions of
witnesses in a drug prosecution. The court of appeals held that
the practice of allowing juror questions is a matter committed to
the sound discretion of the trial court and that the procedure used
by the trial court of submitting written questions to the court so
that evidentiary issues could be resolved, did not constitute an
abuse of discretion. Bascooe-Zurita, 68 F.3d at 1064.
After reviewing these decisions from other jurisdictions, we
agree that juror questioning of witnesses is a matter within the
sound discretion of the trial judge. Moreover, Montana's Rules of
Evidence provide that the trial court controls the mode and order
of interrogating witnesses and presenting evidence so as to "make
the interrogation and presentation effective for the ascertainment
of the truth." Rule 611(a)(l), M.R.Evid.
While we neither encourage nor discourage the practice of
allowing jurors to question witnesses, we, nevertheless, caution
trial courts which allow this practice to be ever mindful that the
jury's fact-finding role is to be accomplished in a spirit of
neutrality, fairness and open-mindedness. Accordingly, juror
questioning of witnesses must be at all times carefully controlled
by the court to insure that individual jurors do not lapse into an
advocacy role, or by their questions intimate any prejudgment of
the evidence or the credibility of the witnesses being questioned.
Additionally, we emphasize that the adoption of this practice is at
the discretion of the trial court. Jurors have no inherent right
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to question witnesses, and juror questioning may not be appropriate
in all cases or of all witnesses.
To that end, we conclude that if a judge, in his or her
discretion, decides to allow this practice, certain minimum
safeguards must be implemented. These safeguards include: (I) the
questions should be factual, not adversarial or argumentative, and
should only be allowed to clarify information already presented;
(2) the questions should be submitted to the court in writing; (3)
counsel should be given an opportunity to object to the questions
outside of the presence of the jury; (4) the trial judge should
read the questions to the witness; and (5) counsel should be
allowed to ask follow-up questions.
In the case before us on appeal, the District Court did use
the appropriate safeguards by allowing only written questions to be
submitted to the court and reviewing these questions for
evidentiary problems. Both counsel were given the opportunity to
object to the questions in a private side-bar with the court and to
ask follow-up questions of the witnesses. In addition, the
questions were intended to clarify certain facts brought out by the
witnesses and were non-argumentative.
Graves also argues that to allow the jurors to question the
accused when the accused chooses to testify at trial is an abuse of
discretion. While we agree that this is a dangerous practice, it
was defense counsel that invited the jurors to ask questions of
Graves and Graves may not now claim error in that regard.
Accordingly, we hold that permitting jurors to pose questions
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to witnesses during trial is a matter within the sound discretion
of the trial court, and the District Court did not abuse its
discretion in this case.
Affirmed.
Justice W. William Leaphart did not participate in this opinion.
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