Initially, we not that our review of this argument is hindered by the state of the record. No transcript or record was made of the district court's response to the jury's question or of any discussions with counsel, and the handwritten responses were not file-stamped or made a part of the record when given to the jury. Instead, they were file-stamped on April 22, 2008, during the course of this appeal. The parties prepared a statement of proceedings pursuant to Supreme Court Rule 3.04. However, that statement contains only minimal information regarding the proceedings.
The record does reveal that the jury began deliberating at 9:45 a.m. and, at some point before 10:25 a.m., the jury sent the following question to the judge: "In the State of Kansas what is the legal age of consent for sexual intercourse?" The court replied with a hand-written response: "The elements of the crime of rape which are pertinent to this case are contained within the instructions that you have been given. Please refer back to those instruction." Underneath the judge's signature, the judge wrote "1/26/07 10:25 A.M."
The transcript indicates that from 1:20 p.m. to 3:30 p.m., the jury requested and received a readback of F.R.'s testimony as well as a readback of Detective Young's testimony concerning his interview with Bonnett. the transcript contains to record of any further jury questions or requests. Nevertheless, the parties agree that sometime prior to 4:33 p.m., the jury sent the following note to the trial judge: "Jury is not unaniamous [sic] -- what is our next step?" The court again responded in writing, stating: "Please continue your deliberations and attempt to achieve a unanimous verdict." Underneath the judge's signature is the following notation, "1/26/07 4:33 p.m."
According to the transcript, the jury returned a guilty verdict at 7:55 p.m.
The COA denied the claim that the last answer was a coercive Allen instruction, but agreed that the record failed to establish that the proceedings regarding the question and answer were conducted in Mr. Bonnett's presence:
Because the trial court's response to the jury occurred at a critical stage of the proceeding at which the defendant had a right to be present, the trial court erred in responding absent Bonnett's presence.Because the jury had indicated it was deadlocked and had asked for a readback, the COA held the error was not harmless and reversed.
. . . .
Nevertheless, the State suggests Bonnett had an opportunity to object because "[t]he jury question regarding unanimity was responded to after the trial court met with counsel and responded to at 4:33 p.m. on January 26, 2007." However, in support of this assertion, the State cites only the handwritten jury question and the judge's response. This page of the record provides no information whatsoever regarding the court's discussions with counsel, if any, nor does it indicate whether counsel had an opportunity to object on the record.
And although the "Statement of Proceedings" prepared by appellate counsel indicates the trial court had "contact with attorneys" before sending a response to the jury advising it to continue deliberations and attempt to reach a unanimous verdict, the record does not describe the nature of the contact, nor does it indicate whether the attorneys were given an opportunity to object.
This is a nice example of the need for a full record and diligence by appellate defense counsel. The question and answer that were caused the reversal in this case were not mentioned in the transcript and were not listed in the appearance docket. Without careful review of the entire record, this issue could easily have been missed. But not by Janine.
[Update: the state did not file a PR and the mandate issued on April 1, 2010.]