State of Louisiana v. R.W.W.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-829

STATE OF LOUISIANA

VERSUS

R.W.W.

**********

APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 05-141
HONORABLE PEYTON CUNNINGHAM, JR., PRO TEMPORE JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
R.W.W.

Renee W. Dugas
Assistant District Attorney
Post Office Box 309
Colfax, LA 71417
(318) 627-2971
COUNSEL FOR APPELLEE:
State of Louisiana

AMY, Judge.

A defendant was charged with aggravated rape and two counts of sexual

battery. A jury found him guilty as charged. The defendant appealed. Among his

assignments of error, the defendant alleged that the trial court erred by allowing the

jurors to view documentary evidence during deliberations. This court conditionally

affirmed his convictions and sentences and remanded for a determination of whether

La.Code Crim.P. art. 793 was violated. After a contradictory hearing, the trial court

found that the error was an insufficient violation and did not constitute reversible

error. The defendant appeals. For the reasons that follow, we affirm.

Factual and Procedural Background

In a jury trial, the defendant, R.W.W.1, was convicted of aggravated rape, in

violation of La.R.S. 14:42(A)(4), and two counts of sexual battery, in violation of

La.R.S. 14:43.1. Receiving credit for time served, he was sentenced to life

imprisonment at hard labor for the aggravated rape conviction, and he was sentenced

to serve ten years at hard labor for each sexual battery conviction. The sentences

were imposed without benefit of parole, probation, or suspension of sentence. The

trial court denied the defendant’s motion for post-verdict judgment of acquittal or,

alternatively, for a new trial.

The defendant appealed, arguing that the evidence was insufficient to sustain

the conviction, that the court violated La.Code Crim.P. art 793 by allowing the jury

to view transcripts of the victims’ statements after it had retired to deliberate, and that

the judge erred in denying his motion for a new trial without a contradictory hearing.

This court found sufficient evidence to affirm the convictions, but remanded the case

to the trial court for “an evidentiary hearing to determine whether the jury reviewed

1
Pursuant to La.R.S. 46:1844(W)(1), the defendant’s initials are used to protect the identity
of the victim.

the transcripts of the victims’ interviews during deliberations and whether the

defendant timely objected to any alleged error.” State v. R.W.W., 06-1253, pp. 12-13

(La.App. 3 Cir. 3/7/07), 953 So.2d 131, 138.

As ordered, the trial court conducted the evidentiary hearing. After listening

to the testimony of the jurors, court personnel, and observers, the trial court,

providing reasons for ruling, found no reversible error. Accordingly, it denied the

defendant’s motion for new trial. The defendant appeals. For the following reasons,

we affirm.

Discussion

In his sole assignment of error, the defendant contends that “[t]he trial court

erred in finding no violation of Louisiana Code of Criminal Procedure Article 793

and further erred in denying RWW a new trial.” In making its determination, the

trial court addressed the testimony of each witness:

This court held an evidentiary hearing on October 12, 2007, with
testimony from jurors and witnesses of the trial to clarify the record as
to whether the jurors received transcripts during deliberations, how long
they may have had the transcripts, and whether they left the courtroom
with transcripts. The evidentiary hearing also addressed whether the
defendant objected to this course of events in a timely manner.

Witness Testimony at Evidentiary Hearing

I. Jurors

Each of the six original jurors, out of the twelve who served at
trial, that testified at the evidentiary hearing recalled (1) coming back
into the courtroom during deliberations, (2) documents being passed out
to some jurors in the courtroom, and (3) those documents were retrieved
quickly before all had received a copy and before having an opportunity
to review the documents. Each juror stated that there was not enough
time to have read the documents before they were taken up by the
bailiff. As to an objection by the defendant, only two jurors, Ernie
Vallery and Jodiah Johnson, recall the defendant’s attorney saying
something such as stating an objection to the court, but the other jurors
could not recall.

2

a. Ernie Vallery

Mr. Vallery served as the jury foreman. Mr. Vallery testified that
there were no documents in the jury room. He remembers coming back
into the courtroom during deliberations to ask about jury instructions.
While in the courtroom, he recalls that transcripts “started to be passed
around but very briefly” before Mr. Wampler came in. He does not
remember reviewing the transcripts, and none of those documents were
taken from the courtroom.

b. Van Sibley

Mr. Sibley remembers coming back into the courtroom during
deliberations, but the jurors did not have any papers in hand when they
came from the jury room to the courtroom. When asked if any
documents were handed to the jurors, he answered, “it might have been
some handed out but I think they was picked up about as fast as they
was handed out, if I remember correctly. I don’t even think anybody
had time to look at them.”

c. William Hardy

Mr. Hardy remembers that upon coming back into the courtroom
during deliberations he received a document to look at, but he only had
a chance to read the front heading before closing it. When asked if he
had sufficient time to have read all of it, he answered “No,” because the
time in which the documents were made available and then retrieved
was “two minutes or less.” He does not recall if Mr. Wampler objected.

d. Gerald Ray Johnson

Mr. Gerald Johnson testified that he remembers coming back into
the courtroom during deliberations. He remembers the bailiff passing
out some papers and that he received one, but he does not remember
how many papers or what was on the paper. He testified that he did not
have a chance to read what he had been given, and stated that the papers
were in his possession for, “I’m guessing less than a minute,” before he
gave them up to the bailiff. He doesn’t remember looking at any
victims’ transcripts, nor if Mr. Wampler was present or objected.

e. Jodiah Johnson

Mrs. Johnson remembers coming back into the courtroom during
deliberations. When asked about the bailiff passing out papers, she
answered, “I seem to recall that there were—might have been something
passed out and taken up very quickly. I don’t—I couldn’t tell you,
personally, what was on it. I don’t even know if it reached me.” Even
if she had received something she doesn’t remember what was on it. As

3

for the length of time they had papers, she said it was “not even a
minute, maybe.” She testified that Mr. Wampler came into the
courtroom during this time with the papers, and she remembered that he
said something but she did not remember, “if it had anything to do with
the papers.”

f. Mary Murdock

Ms. Murdock testified that she had some difficulty remembering
certain details because she stated, “I’ve slept since then.” She
remembers that the jury requested a transcript, but when asked where the
jury was when it was given she answered, “Originally, I thought it was
in that room but I think they passed it out when we were here
[courtroom] and then immediately took it back.” She says they did not
have time to go through the transcript in its entirety, “Because it—by the
time anybody got ready to actually open it up and look it was taken
away. I might have seen the first page but I couldn’t tell you what was
on it.” When asked how long it was between receiving the documents
before they were given back, she estimated five minutes.

II. Courtroom Witnesses

The following six witnesses were present in the courtroom during
the trial and the deliberations. Two of these witnesses, [S.P.] and [L.P.],
testified during the trial as defense witnesses. [S.C.] and [J.P.] were
subpoenaed as defense witnesses, but they were not called to testify at
trial. The testimony of all six witnesses is consistent among the group
but conflicts with juror testimony. All witnesses were sequestered for
this hearing. These witnesses all shared the same memory of (1) jurors
coming into the courtroom from deliberations with papers in hand, (2)
Mr. Wampler being out of the courtroom for at least 10 minutes while
the jurors read the papers, and (3) Mr. Wampler coming in and
objecting. None of these witnesses knew what these papers were, and
their testimony did not concur on the number or thickness of the papers,
but the implication is that the jurors received these documents and had
them in the jury room.

a. [S.P.]:

[S.P.] testified that she remembered the jury requested some
documents, and when they came into the courtroom from the jury room
they already had documents in their hands. Mr. Wampler was not in the
courtroom when the jurors came into the courtroom, but his secretary
was in the courtroom and she went out and got him. [S.P.] says Mr.
Wampler was out for 15 minutes. She said that no documents were
handed to them in the courtroom but taken from them. On cross-
examination, she admitted to being convicted of perjury during the trial.

4

b. [S.C.]:

[S.C.] says the jury came into the courtroom and each juror had
papers in hand. Mr. Wampler was not present in the courtroom when
they came in, and he was out of the courtroom for 15-20 minutes. When
he returned, he objected and the documents were taken from the jurors.
On cross-exam and redirect, she said the time between the jurors coming
in the courtroom and Wampler returning to the courtroom was only
about 5 minutes.

c. [J.S.]:

[J.S.] testified that the jurors came into the courtroom with papers
in hand that they were looking through and reading. Mr. Wampler was
gone from the courtroom for three or four minutes when the jurors came
in. He said Wampler objected and the papers were taken up, but that it
was 15-20 minutes between the time the jurors walked in and the papers
were taken back.

d. [J.P.]:

Mr. Wampler was out of the courtroom when the jurors came in
and he was gone for 10-15 minutes. The jurors had papers in hand when
they walked into the courtroom, and they were flipping through the
papers. When Wampler returned to the courtroom, he objected, and the
papers were taken back.

e. [D.C.]:

When asked if the jury came back from deliberations to ask the
court a question, [D.C.] answered yes, and then before being asked
about papers, he said that they were reading some papers that they had
with them. Then when asked if Mr. Wampler was present when the
jurors came back, he said, “He was not present, his secretary was. She
had to go out and get him. He came back in and objected.” ( [D.C.] had
not been asked specifically about papers or about Wampler’s objection,
before answering with those details.) On cross-examination, [D.C.]
stated that he knew “for a fact” that the jurors had come in and out of the
courtroom two times, but on direct examination he had not distinguished
between two separate times. Despite his quick recall of the details from
the second time the jury had come into the courtroom, [D.C.] could not
recall any details of what occurred on the first time the jury had come
back into the courtroom.

f. [L.P.]:

[L.P.] also testified that all jurors had a stack of papers in hand
that they were reading when they came into the courtroom. She

5

estimated that the jurors were holding 30 pages of paper. Mr. Wampler
was not present, and “about 8 minutes, 8 or 9 minutes” passed before he
came in. On cross-examination, Assistant District Attorney Renee
Dugas asked [L.P.] how the jurors got the papers, to which she
responded, “Well, Mrs. Renee came in here and grabbed some papers off
of a desk and took them back there in the room.” [L.P.] was referring to
Assistant District Attorney Renee Dugas. [L.P.] did not know what the
papers were or where Mrs. Dugas went with them, but she claims that
the papers were the same the jurors brought back into the courtroom.
([L.P.] is the only witness to testify to this peculiar sequence of events.)
[L.P.] did not recall what happened to the papers that the jurors were
reading in the courtroom.

III. Court Officers

a. Court Reporter, Tara Crooks Talley

Mrs. Talley testified that during deliberations she was in her
office, and the bailiff told the judge that the jury had a question for him.
At that time, the judge, jury, attorneys and court officers all went back
into the courtroom. None of the jurors had anything—no papers—their
hands when they came into the courtroom. The jurors asked to review
transcripts that had been provided and retrieved during trial. The bailiff
started handing out the transcripts, but not all of them received a
document. She recalled that maybe only the first row had received
copies, but that they wouldn’t have had time to read the documents.
Either the District Attorney or Mr. Wampler said the papers should not
be handed out, and that is when the papers were retrieved. With respect
to the amount of time the jurors had the papers, she stated, “Very little
time, I mean, I wouldn’t even say there was enough time to thumb
through the whole document because we kind of like, hold up, hold up
and everybody, you know, went—not more than a couple of minutes.”
When asked if the jurors took the transcripts back into the jury room, she
answered, “Absolutely not,” but they took a verdict form into the jury
room.

b. Bailiff, George Bucko

Mr. Bucko testified that the jury was not provided with a copy of
the transcripts while they were in the jury room. During deliberations,
Mr. Bucko received a note from the jury, and he gave it to the judge,
who advised him to escort the jury back into the courtroom. The jurors
did not have any documents in their hands when they came from the jury
room into the courtroom. While in the courtroom, the judge told him to
hand some documents to the jurors. He started handing them out one at
a time to the individual jurors but he only handed out copies to 3 or 4
jurors when the judge advised him to stop and pick them back up. He
says those jurors would only have had possession of the documents for

6

30 seconds before the objection was made and they were taken back up.

Findings and Conclusion

Based on the testimony from the evidentiary hearing, this court
finds that (1) copies of the victims’ transcripts were passed out in the
courtroom to fewer than all jurors, (2) the defendant objected as the
transcripts were passed out, (3) the transcripts were retrieved
immediately in response to the objection, and (4) the jurors did not
examine the victims’ transcripts in the jury room during deliberations.

The provisions of Louisiana Code of Criminal Procedure article
793 are meant to prevent jurors from giving undue weight to evidence
that the jurors have time to review, examine, and take into consideration
in reaching a verdict. According to the consistent testimony of six of the
original twelve jurors, which is corroborated by the testimony of the
court officers, no jurors [sic] had any opportunity to review or examine
any evidence contained in those transcripts during deliberations.
Subject to the harmless error analysis, this court finds that the trial error
did not affect the outcome of the case nor prejudice the substantial rights
of the defendant, and there was not a sufficient violation of Louisiana
Code of Criminal Procedure article 793 to constitute reversible error.

In conclusion, this court finds no Louisiana Code of Criminal
Procedure article 793 violation and denies the defendant a new trial.

(Citations omitted.)

Louisiana Code of Criminal Procedure Article 793 provides in pertinent part:

Art. 793. Use of evidence in jury room; reading of recorded
testimony; jurors' notes

A. Except as provided in Paragraph B of this Article, a juror must
rely upon his memory in reaching a verdict. He shall not be permitted
to refer to notes or to have access to any written evidence. Testimony
shall not be repeated to the jury. Upon the request of a juror and in the
discretion of the court, the jury may take with it or have sent to it any
object or document received in evidence when a physical examination
thereof is required to enable the jury to arrive at a verdict.

In State v. Freetime, 303 So.2d 487, 488-89 (La.1974), the supreme court

explained the policy behind La.Code Crim.P. art. 793:

The policy choice thus represented is to require jurors to rely on
their own memories as to verbal testimony, without notes and without
reference to written evidence, such as to depositions or transcribed

7

testimony. The general reason for the prohibition is a fear that the jurors
might give undue weight to the limited portion of the verbal testimony
thus brought into the room with them.

Considering La.Code Crim.P. art. 9212 and jurisprudence, the fourth circuit

stated:

We conclude based on these cases that, although Art. 793’s
prohibition is explicit, violation of that article does not mandate
reversal. Rather, the erroneous presentation of written, documentary
evidence to the jury during deliberations is trial error that can be
quantitatively assessed in the context of other evidence, and therefore is
subject to harmless error analysis.

State v. Johnson, 97-1519, p. 17 (La.App. 4 Cir. 1/27/99), 726 So.2d 1126, 1134 writ

denied, 99-0646 (La. 8/25/99), 747 So.2d 56.

In light of the foregoing authority, the issue is whether any error affected the

outcome of the case or prejudiced the defendant’s substantial rights. The defendant

argues that the courtroom observers testified that the jurors had the transcripts in their

possession for ten to twenty minutes, which is enough time to allow for “improper

rereading of witness testimony.” Also, he points out that only six jurors testified at

the evidentiary hearing, leaving room for the possibility that the remaining jurors

were “influenced unduly” and that the “error contributed to the verdict.” Further, the

defendant urges that the error was prejudicial because “the children had not testified

as effectively in court as the statements reflected in the transcripts.” Accordingly, the

defendant asserts that the error should not be deemed harmless.

The State responds by pointing out that not all of the jurors had the transcript

in their possession and those jurors who did receive a copy did not have time to read

2
Art. 921. Matters not grounds for reversal

A judgment or ruling shall not be reversed by an appellate court because of
any error, defect, irregularity, or variance which does not affect substantial rights of
the accused.

8

it. In support of this argument, the State relies on the consistency of the witnesses’

testimony it contends were unbiased and calls into question the lack of personal

knowledge of the other witnesses who may have been referring to the verdict forms,

which the jurors were permitted to have in the jury room.

In State v. Zeigler, 40,673 (La.App. 2 Cir. 1/25/06), 920 So.2d 949, the

defendant contended that the trial court erred by allowing the jury to review the crime

lab report during deliberations. Over the defendant’s objection, the trial court

allowed the jury to view the written evidence that identified a substance as cocaine.

The second circuit, noting that the report was entered into evidence at trial without

objection and was shown to reflect that the substance sold by the defendant was

cocaine, found that it was “apparent that [the defendant’s] conviction was not

attributable to the trial error, and the trial court’s violation of La. C. Cr. P. art. 793

was harmless.” Id at 956.

Similarly, in State v. Hall, 558 So.2d 1186 (La.App. 1 Cir.), writ denied, 564

So.2d 318 (La. 1990), a jury, during deliberations, was allowed to view an evidence

envelope that was not admitted at trial. The defense attorney objected, and the trial

court ordered that the evidence immediately be removed from the jurors’ possession.

The jury had access to the evidence for less than ten minutes. A voir dire

examination was conducted, revealing that only one juror had actually looked at the

contents of the evidence, specifically, a photograph of the victim. Due to the

similarity between the photograph in the envelope and a nearly identical one properly

viewed at trial, the first circuit found that any error that occurred was harmless.

After reviewing the record, we find support for the trial court’s conclusion that

the testimony of the six jurors and the court reporters all independently confirm that

9

the transcripts were not released long enough for a juror to have read it and/or given

it undue weight when reaching the verdict. Accordingly, the distribution of the

documents and any resulting error was harmless. Therefore, the defendant’s

assignment of error lacks merit.

DECREE

For the foregoing reasons, the defendant’s convictions are affirmed.

AFFIRMED.

10