Summary
applying the rule of discretionary control to the reading of part of the testimony of trial witnesses
Summary of this case from Martinez v. PeopleOpinion
No. C-182
Decided December 26, 1972.
Defendant was convicted of assault and battery in violation of the statute and appealed.
Affirmed
1. CRIMINAL LAW — Trial — Jury — Request — Reading — Testimony — Witnesses — Discretion of Court. The reading of all or part of the testimony of one or more of the witnesses at trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court.
2. JURY — Request — Reading of Testimony — Court — Caution — Evidence — Selected — Undue Weight. Where jury requests that part of testimony be read to it during their deliberations, it is essential that the court observe caution that evidence is not so selected nor used in such a manner that there is a likelihood of its being given undue weight or emphasis by the jury.
3. ASSAULT AND BATTERY — Jury — Request — Reading of Testimony — Abuse — Negative. In prosecution for assault and battery, reviewing court is of the view that record on appeal — which contained only portion of testimony which trial court permitted to be read at jury's request during deliberations — revealed nothing to suggest that trial court had abused its discretion.
Certiorari to the District Court of Jackson County, Honorable Dale E. Shannon, Judge.
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, Thomas M. Van Cleave, III, Deputy, Don L. Nelson, Deputy, for petitioner.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Jack E. Hanthorn, Assistant, for respondent.
The defendant, Roy Settle, was convicted of assault and battery in violation of C.R.S. 1963, 40-2-35. After the case had been submitted to the jury for its deliberations, the foreman of the jury asked to rehear a portion of the testimony of the complaining witness, and both sides were advised of this request. The trial court, over defendant's objection, then permitted the jury to rehear some testimony by use of an electronic recording device. The defendant argues that allowing the jury to rehear this testimony constitutes reversible error, relying upon Hersey v. Tully, 8 Colo. App. 110, 44 P. 854. We do not agree, and affirm the judgment of the district court.
The overwhelming weight of authority in this country is that the reading of all or part of the testimony of one or more of the witnesses at trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court. See State v. Wolfe, 194 Kan. 697, 401 P.2d 917; State v. Hines, 6 Utah 2d 126, 307 P.2d 887; Duffey v. State, 124 Neb. 23, 245 N.W. 1; People v. Westerman, 7 App. Div. 2d 943, 181 N.Y.S.2d 1016; State v. Wolf, 44 N.J. 176, 207 A.2d 670; Tyler v. United States, 361 F.2d 862 (10th Cir.); U.S. v. Rosenberg, 195 F.2d 583 (2nd Cir.), cert. denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652. See also American Bar Association Standards, Trial by Jury, Sec. 5.2. We adhere to that standard and anything in Hersey v. Tully, supra, which appears to be contrary to this position is specifically overruled.
It is, of course, essential that the court observe caution that evidence is not so selected, nor used in such a manner, that there is a likelihood of it being given undue weight or emphasis by the jury. This would be prejudicial abuse of discretion and constitute grounds for reversal. See Hersey v. Tully, supra; and United States v. Johnson, 447 F.2d 31 (7th Cir.).
The only portion of the record designated here is the testimony which the trial court permitted to be read. On the basis of that record, we find nothing upon which we can make a determination of abuse of discretion. We must therefore presume the trial court acted properly and without error. Magee v. People, 79 Colo. 328, 245 P. 708, 709; Shepherd v. People, 75 Colo. 251, 225 P. 221.
The judgment is affirmed.