Appeal from Jefferson Circuit Court. Joseph J. Jasper. CC-90-4461
Bowen, Patterson, Taylor, McMillan, Montiel
The opinion of the court was delivered by: Bowen
Arthur Deutcsh, the former Chief of Police of the City of Birmingham, appeals his conviction for the misdemeanor offense of tampering with governmental records. He received the maximum sentence of 12 months' hard labor in the county jail and was fined $2,000. His conviction must be reversed because the trial court failed to clarify the jury's expressed confusion over the major issue submitted for its decision -- Deutcsh's legal and criminal liability for the acts of others.
Initially, this Court must determine the exact charge of which Deutcsh stands convicted. The necessity for this determination indicates the confusion which apparently plagued the trial of this case.
Deutcsh was charged with the criminal offense of tampering with governmental records, a Class A misdemeanor. That offense is defined by Ala. Code 1975, § 13A-10-12, which provides:
"(a) A person commits the crime of tampering with governmental records if:
"(1) He knowingly makes a false entry in or falsely alters any governmental record; or
"(2) Knowing he lacks the authority to do so, he intentionally destroys, mutilates, conceals, removes or otherwise substantially impairs the verity or availability of any governmental record . . . ." *fn1
The two-count indictment charged:
"ARTHUR DEUTCSH . . . knowingly made a false entry in or falsely altered a governmental record, to-wit: records of the Birmingham City Jail and Police Department in violation of Section 13A-10-12(1) of the Alabama Criminal Code.
"2nd: . . . ARTHUR DEUTCSH, . . . knowing he lacked the authority to do so, did intentionally destroy, mutilate, conceal, remove or otherwise substantially impair the verity or availability of a governmental record, to-wit: records of the Birmingham City Jail and Police Department, in violation of Section 13A-10-12(2) of the Alabama Criminal Code." R. 1802.
Prior to trial, in response to Deutcsh's motion for a more definite statement pursuant to Rule 15.2(e), A.R.Crim.P.Temp. (now Rule 13.2(e), A.R.Crim.P.), the prosecution identified the governmental records involved in this case: *fn2
"The State specifies that the records of the Birmingham City Jail and Police Department alluded to in the indictment are  the page from the jail docket book listing the arrest of Erica Arrington,  the computer data base record listing the arrest of Erica Arrington,  the fingerprint card and  the fingerprint log concerning the arrest of Erica Arrington and  the photograph of Erica Arrington made during the course of the 'booking' process." R. 1832.
At the charge conference on the instructions to be given the jury, the trial Judge stated that he was going to submit both counts of the indictment to the jury in the alternative. During his charge, the trial Judge instructed the jury that "there could be only one verdict in this case," R. 1418, and submitted only three verdict forms to the jury -- guilty of Count One, guilty of Count Two, and not guilty. However, the oral charge does not make it clear that the jury could only find Deutcsh guilty of either Count One or Count Two, and that they could not find him guilty of both Counts One and Two.
The jury returned verdicts finding Deutcsh guilty as charged in both counts of the indictment. Immediately after the jury had been discharged, the trial Judge announced that he was "only going to consider it as one case," and informed Deutcsh, "The jury, even going beyond the instructions of this Court, found you guilty in Count 2." R. 1437. When defense counsel requested a mistrial based on the verdicts, the trial Judge responded, "Overruled. The Court will consider it surplusage. The Court will only mete out one judgment in this case." R. 1438. The trial Judge then "adjudicated" Deutcsh "guilty of tampering with government records" without reference to either count. R. 1438. At sentencing, the trial Judge announced that he had treated the "second verdict" involving Count Two "as being surplusage," and imposed only one sentence. R. 1448. The jury's verdicts on both counts are listed on the case action summary.
No objection was made to the action of the trial Judge in treating the "second" verdict as "surplusage" until the motion for new trial. In arguing that motion, defense counsel stated: "It comes under eleven [of the motion for new trial, R. 1992], where the Court elected to treat one of the verdicts as surplusage. It's our position that, absent the consent of the defendant, that you cannot treat that as surplusage." R. 1508.
We agree with defense counsel's argument. Assuming for purposes of this issue that there was some evidence to support both verdicts, the trial Judge had no authority to set aside either verdict at his discretion. Yet, after the jury had returned two verdicts contrary to the trial Judge's instructions (however indefinite those instructions were), there was never a request for the trial Judge to instruct the jury to conform its verdict to those oral instructions. Therefore, the error has not been preserved for review. *fn3
"Defendant's right not to be convicted of both can be safeguarded by requesting that the jury be instructed to specify the count under which they find the defendant guilty, and in situations where no evidence is presented as to a particular count, a directed verdict can be requested as to that count."
Ex parte Wilcox, 401 So.2d 794, 796 (Ala. 1981). "The grounds urged for a new trial must ordinarily have been preserved at the trial by timely and sufficient objection." Fuller v. State, 365 So.2d 1010, 1012 (Ala.Cr.App. 1978), cert. denied, 365 So.2d 1013 (Ala. 1979).
Based on these considerations and the action of the trial court, we find that Deutcsh has been adjudicated guilty and convicted of tampering with governmental records only as charged in Count One of the indictment which states a violation of Ala. Code 1975, § 13A-10-12(a)(1).
The singular predominant characteristic of the instructions of the trial Judge and the deliberations of the jury is confusion. Deutcsh's conviction must be reversed because the trial Judge failed to respond to the confusion expressed by the jury over the question of Deutcsh's legal and criminal liability for the actions of others.
The jury began its deliberations at 11:16 a.m. At 12:00 noon the jury reported that "there is some confusion between Count One and Count Two." R. 1421. In response, the trial Judge reread the statute defining the offense. The jury continued its deliberations at 12:05 p.m. At 1:30 p.m., the jury returned to the courtroom and again indicated its confusion.
"FOREMAN PEACE: Yes, sir, we do [have another question].
"Our question is in the, Count One. The verbiage -- we'd like it read again. I think that's an important part to some of us in the jury room is the way it was read, the way it was verbalized to us. I think it's in the verbiage, is what we're looking for.
"There are some things in there that are throwing some of us, particularly.
"THE COURT: You lawyers approach the bench.
"(Bench conference, out of hearing of court reporter.)
"THE COURT: Under 13A-10-12, 'A person commits the crime of tampering with governmental records if: (1) he knowingly makes a false entry in or falsely alters any governmental record; or --' in the alternative now: '(2) knowing he lacks the authority to do so, he intentionally destroys, mutilates, conceals, removes or otherwise substantially impairs the verity or availability of any governmental record.' *fn4
"Those are the two counts within the indictment that this defendant is charged with.
"Here, again, I must remind you, now, you cannot just isolate, because I'm going over those two with you at this point, the two counts. You have to take the Court's entire oral charge so that you can put everything into perspective. And I must rely on your individual recollections as to the definitions I gave you.
"Does that answer y'all's question? Any one of you jurors may speak up if you have a question.
"FOREMAN PEACE: That still doesn't answer --
"THE COURT: Let me say this to you: Please, as jurors, rely on just what you've been given, whether it be from the evidence or from the Court's charge as to the law. Don't read anything into it that's not there. I have to caution you as to that.
"Don't presume anything from the evidence that was or was not there. Rely on the evidence as was presented to you, and then take the Court's charge in its entirety with all the definitions.
"FOREMAN PEACE: I don't know what I can ask, or what, because there's been so much statement as to who can say what and how you say it, and everything.
"One of the questions that has arisen is did -- there's a point here -- did the defendant actually order these things to be done, or -- I'm having a real problem with the verbiage here as to how to get -- or did the actions of people under his command, if that was the case -- that's, somebody said, somebody in the jury said that they heard that through other people's actions the Chief could be held accountable and found guilty of these charges.
"That's where we're having a problem. Is that the case?
"THE COURT: Well, here again, I have to rely on your individual recollections. I want you to rely on your individual recollections as to what the evidence was.
"I do not intend, nor can I, comment on any portion of the evidence, and as to what the evidence was, I'm repeating myself, I have to leave it up to your individual recollections.
"That's one reason, now, when you get to another point in your question, in reading the charges, verbatim, from the statute, I have to rely on your individual recollections as to what the Court charged you in its entire charge.
"FOREMAN PEACE: Now, that was your entire statement from --
"THE COURT: -- from the very beginning.
"FOREMAN PEACE: -- from the very beginning.
"THE COURT: From the time I read the indictment and the more specific statement to you, all the way through.
"FOREMAN PEACE: Would you, for clarification point, do that again?
"THE COURT: Will you gentlemen approach the bench, please.
"(Bench conference held, out of hearing of court reporter.)
"THE COURT: Ladies and gentlemen, I'll have to rely upon your individual recollections as to what the Court charged you.
"Now, each one of you can discuss with the others everything that was -- as far as the evidence was concerned or as far as the law was concerned, that the Court has charged you on. It doesn't have to be just one person. In fact, each one of you are separate individuals, and entitled to your own opinion.
"You may retire for further deliberations." R. 1425-31.
The jury continued its deliberations from 1:38 p.m. until the jurors were taken to lunch at 1:50 p.m. Deliberations resumed at 2:45 p.m., and the jury returned the verdicts at 2:53 p.m.
Objection to this matter appears in the supplemental record:
"MR. BOWEN [defense counsel]: Judge Jasper calls us to the bench and said, 'If y'all want me to, I will reread the whole -- regive my complete oral charge.' And as I recall, Mr. Brown [the assistant district attorney] -- this is not on the record either -- another one of those instances where the Court Reporter says outside of her presence and hearing.
"MR. WHITE [defense counsel]: Page 1431 of the transcript.
"MR. BOWEN: Mr. Brown says that that's okay with the State to reread the whole charge. And we objected to it and told the Judge that they were apparently having a problem with -- what they perceived to be the vicarious liability on the part of the defendant and that needs to be cleared up. But we objected to just giving the whole oral charge. . . . And the Judge elected not to do anything. He just told them to rely on their recollection of the charge and go back and deliberate." Supp. R. 9-10.
The circuit court *fn5 accepted these objections as "accurate" and as "properly preserving this issue for appellate review." Supp. R. 12, 23, 25).
Reversible error was committed by the trial Judge's failure to adequately respond to the jury's question and to clarify the confusion concerning the principles of liability involved in this case.
Rule 22.2, A.R.Crim.P., provides, in pertinent part:
"After the jurors have retired to consider their verdict, . . . if they or any party requests additional instructions, the court may recall the jurors to the courtroom and . . . give appropriate additional instructions. The court may also . . . give other instructions, so as not to give undue prominence to the particular . . . instructions requested."
"While deciding whether to grant a jury's request for additional instructions or reinstruction lies within the discretion of the trial court, Moon v. Nolen, 318 So.2d 690 (Ala. 1975), the better practice would be for the trial court to accede to such a request. Ole South Bldg. Supply Corp. v. Pilgrim, 425 So.2d 1086 (Ala. 1983); Nichols v. Seaboard Coastline R.R., 341 So.2d 671 (Ala. 1976) (Bloodworth J., Concurring specially)." Merrell v. Joe Bullard Oldsmobile, Inc., 529 So.2d 943, 948 n. 2 (Ala. 1988) (emphasis added).
"When a jury requests additional instructions the recommended practice is for the trial court to remain within the area of the specific request in making his response. East v. State, 339 So.2d 1104, 1106-07 (Ala.Cr.App. 1976). A trial Judge is not required to repeat any other part of his oral charge when answering a specific inquiry from the jury. White v. State, 195 Ala. 681, 686, 71 So. 452 (1916); Thomas v. State, 393 So.2d 504, 508 (Ala.Cr.App. 1981)."
Davis v. State, 440 So.2d 1191, 1195 (Ala.Cr.App. 1983), cert. denied, 465 U.S. 1083, 104 S.Ct. 1452, 79 L.Ed.2d 770 (1984). However, it has also been held that the repetition of the court's oral charge at the request of the jury and by agreement of counsel was not error. Stillwell v. State, 41 Ala.App. 503, 504, 137 So.2d 61, 62 (1961).
Here, the trial court abused his discretion and committed reversible error in failing to reinstruct the jury. See American Pamcor, Inc. v. Evans, 288 Ala. 416, 422, 261 So.2d 739, 744 (1972) ("Additional instructions on the law of the case [should be given] when the ends of Justice and the circumstances of the case require that this be done. This is especially true when the jury requests further instructions on the law of the case.").
We recognize that the trial Judge did offer to restate his entire oral charge. However, such a statement would not have been a direct response to the specific legal principles about which the jury was confused. The foreman had previously informed the trial Judge that one of his prior responses did not answer the jury's question. In addition, the foreman had expressed that the jury was having difficulties with the particular "verbiage" employed by the trial Judge in delivering his oral charge. Furthermore, as is discussed in Part III of this opinion, there were errors in other portions of the court's oral charge. Those errors would have been repeated had the trial Judge merely reread his prior instructions.
"The Judge is responsible for giving the jury the guidance by which it can make appropriate Conclusions from the testimony. This duty is performed by clearly stating the relevant legal criteria." United States v. Garrett, 574 F.2d 778, 782 (3d Cir.), cert. denied, 436 U.S. 919, 98 S.Ct. 2265, 56 L.Ed.2d 759 (1978). "The purpose of instructing the jury is to focus its attention on the essential issues in the case and inform it of the permissible ways in which these issues may be resolved." United States v. Ribaste, 905 F.2d 1140, 1143 (8th Cir. 1990).
"We have stated that '"the necessity, extent and character of additional instructions are matters within the sound discretion of the trial court."' United States v. Collom, 614 F.2d 624, 631 (9th Cir. 1979) (Collum), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980), quoting Wilson v. United States, 422 F.2d 1303, 1304 (9th Cir. 1970). At the same time, the district court has the responsibility to eliminate confusion when a jury asks for clarification of a particular issue. See United States v. McCall, 592 F.2d 1066, 1068 (9th Cir.) (per curiam), cert. denied, 441 U.S. 939, 99 S.Ct. 2061, 60 L.Ed.2d 665 (1979)."
United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987).
"A trial Judge has some obligation to make reasonable efforts to answer a question from the jury. Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946). 'When a jury makes explicit its difficulties a trial Judge should clear them away with concrete accuracy.' Id. at 612-613, 66 S.Ct. at 405. See United States v. Clavey, 565 F.2d 111, 118 (7th Cir. 1977), modified on other grounds, 578 F.2d 1219 (7th Cir.) (en banc), cert. denied, 439 U.S. 954, 99 S.Ct. 351, 58 L.Ed.2d 345 (1978)."
United States v. Rodriguez, 765 F.2d 1546, 1553 (11th Cir. 1985).
"While the law in this circuit as in others is that the decision whether and how to reinstruct a jury is within the discretion of the trial court, . . . there are necessarily limits on that discretion. . . . When a jury shows confusion, a trial Judge is under an obligation to respond and is not, in responding, bound by the standard instruction[.] . . . Particularly where a difficult legal issue . . . is the subject of the jury's inquiry, the trial court should carefully inform the jury of the law, and not allow the troubled jury to rely on a layman's interpretation of a superficially simple but actually complex statute."
United States v. Bolden, 514 F.2d 1301, 1308-09 (D.C.Cir. 1975). "When a deliberating jury affirmatively indicates to the trial court that it does not understand an element of the offense charged or some other matter of law central to the guilt or innocence of the accused, the court is obligated to clarify the matter for the jury in a concrete and unambiguous manner." People v. Kittrell, 786 P.2d 467, 470 (Colo.App. 1989). "Where the jury raises an explicit question on a point of law arising from facts over which there is doubt or confusion, the court should attempt to clarify the issue in the minds of the jury members. . . . 'This is true even though the jury was initially given proper instructions.'" People v. Sanders, 469 N.E.2d 287, 290 (Ill.App. 1984). See also United States v. Zabic, 745 F.2d 464, 475 (7th Cir. 1984).
The pivotal and major issue the jury had to decide was Deutcsh's liability for the actions of other employees of the Birmingham Police Department. That decision involved the application of legal principles that are specifically defined by statute and that are not the subject of general public knowledge. See Ala. Code 1975, § 13A-2-20 and § 13A-2-2-23. The facts of this case are numerous, confusing, and subject to various interpretations. We have set out a relatively brief summary of the more significant of those facts in Part V of this opinion. At trial those facts were presented to the jury in a disorganized and jumbled fashion which may have been due, at least partially, to the very nature of the alleged offense. Those facts do not all point in one direction. The evidence of Deutcsh's guilt is entirely circumstantial and is far from being as strong and clear as the State argues. On the other hand, the evidence of Deutcsh's innocence is not as obvious as the defense maintains.
Consequently, any ambiguity and uncertainty in the jury's understanding of the principles of liability involved in this case rendered the decision of the jury virtually meaningless. "The adequacy of the trial court's instruction must always be measured by the evidence and the issues raised there." United States v. Bigham, 812 F.2d 943, 949 (5th Cir. 1987).
Repeated readings of the entire record in this case convince this Court that the jury had significant questions about principles of law that were never adequately addressed by the trial Judge.
"The difficulty of formulating clarifying instructions so as to avoid incomprehensibility is one which we readily recognize. 'Because of the very commonness of [some pertinent] words, the straining for making the clear more clear has the trap of producing complexity and consequent confusion.' [United States v. Lawson, 507 F.2d 433, 442 (7th Cir. 1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975)]. Nevertheless, where the articulation of the law is essential to the trial's propriety, the task cannot be avoided, as difficult as it may be. It would be, we reluctantly admit, unrealistic to think that every juror understands every concept to which he or she is exposed in the ...