Improper response to jury question prompts reversal

Carl Folsom won in State v. Jones, No. 97,976 (Kan. App. April 17, 2009), obtaining a new trial in a Johnson County aggravated robbery prosecution. During deliberations, the jury asked "Were there identified fingerprints on the gun?" The district court responded that "no evidence was presented about fingerprints on the gun." Because there had been trial testimony about fingerprints on the gun, the COA held that the judge's response was a misstatement of the trial testimony. The COA went on to consider the prejudicial nature of the error:

The jury's question: "Were there identified fingerprints on the gun?" was specifically directed at the critical issue in the case, which was highly controverted--the determination of the robber's identity. The correct answer to this question--that Detective Cohee testified that he believed Briggs' fingerprints, and no others, were on the gun--supported Jones' defense that Briggs, not Jones, committed the crime. The response provided by the trial court that "no evidence was presented about fingerprints on the gun" was not just erroneous but adverse to Jones' defense.

The COA went on to caution trial judges about extemporaneous discussions with the jury about questions. Good advice.

[Update: the state filed a motion to add to the record and a motion for rehearing on May 1, 2009. Mr. Jones objected to both.]

[Further update: the state filed a PR on May 18, 2009.]

[Further update: on June 29, 2009, the COA denied the state's motion to add to the record and for rehearing. The state filed a PR from that decision on July 29, 2009.]

[Further update: the KSC denied both of the state's PRs and the mandate issued on March 9, 2010.]