State v. Lee

585 P.2d 58, 1978 Utah LEXIS 1408

• Court: Utah Supreme Court
• Decided: September 8, 1978
• Docket: 15121
• Status: Published

Opinions

PER CURIAM:

Appeal from a sex case conviction. The defendant, Lee, at the time the jury was deliberating, was out on bail, and absent from the courtroom, when the trial judge, at the request of the jury, told them the time of day when the sun rose on the day of the alleged offense. Lee said this violated his constitutional rights.

His counsel correctly contends that constitutionally¹ and statutorily ² and case-wide ³ defendant has a right to be present at all stages of the trial, —and a duty⁴ as well; and that any communication between judge and jury should be in the presence of the accused, his counsel and the prosecutor.⁵

The State generally agrees, but says that the accused also has the right to waive such protective rules, and did so here because:

1) The information was given to the jury, and that fact was known to defense counsel several hours before the jury returned into court, during which time counsel remained silent and raised no question as to the propriety of the information, until the verdict was pronounced, and thereafter objection was noted for the first time on a motion for new trial. The cases seem to be uniform in saying one cannot do that, and even if it were error to give the information to the jury during the voluntary absence of the defendant, it was harmless for the reason that the information was judicially noticed and was correctly stated. In State v. Myers, supra, cited by defendant, having to do with a right to be present, the court said “It is a right which may be waived under certain circumstances.”⁶ The Wisconsin Court⁷ pointed out that it was a right and a duty to be present where the court confers with the jury, which right may be waived by voluntary absence, it being defendant’s or counsel’s duty to know what may and what may not affect his rights, while the court is in session.

2) The silence of defendant’s counsel and failure to consult with the court or proceed by motion or otherwise before verdict to repair any prejudice which he claims a right to assert clearly appears to be a waiver of the right to be present. It would be a gamble with the outcome of a verdict if he could keep silent until the verdict was read, and thereafter claim error on the part of the court.

Such belated urgence aptly is reflected in the language of State v. Buggs, 219 Kan. 203, 547 P.2d 720, to the effect that:

“Where alleged juror misconduct claimed as prejudicial is known by the party or his counsel prior to the rendition of a verdict, and no objection is made, nor the matter brought to the court’s attention, the party cannot later assert the misconduct as grounds for a new trial.”

and the same reasoning applies in a situation like the present matter.

The judgment is affirmed.

1 . Utah Constitution, Art. I, Sec. 12.

2 . Secs. 77-27-3 and 77-32-3, Utah Code Annotated 1953.

3 . State v. Myers, 29 Utah 2d 254, 508 P.2d 41 (1973).

4 . State v. Aikers, 87 Utah 507, 51 P.2d 1052 (1935); State v. Stewart, 56 Wis.2d 278, 201 N.W.2d 754 (1972); Hopt v. People, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262; Meece v. Com., 78 Ky. 586 (1880).

5 . State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956).

6 . 508 P.2d at 42.

7 . State v. Stewart, supra, note 4.