No. 94-608

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

CHARLES MOSES GRAVES,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and for the County of Flathead,

The Honorable Michael H. Keedy, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, State Appellate Defender, Helena,

Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Elizabeth L.

Griffing, Assistant Attorney General, Helena,

Montana; Thomas J. Esch, Flathead County Attorney,

Ed Corrigan, Deputy Flathead County Attorney,

Kalispell, Montana

Filed:

Submitted on Briefs: September 28, 1995

Decided: December 14, 1995
Justice James C. Nelson delivered the Opinion of the Court.

Charles Moses Graves (Graves) was convicted by a jury of

felony theft and burglary. During the trial, the District Court

for the Eleventh Judicial District, Flathead County, permitted

jurors to submit written questions to be asked of witnesses at the

conclusion of their testimony. Graves’ counsel objected to this

practice and it is on this basis that Graves appeals. We affirm.

The sole issue raised by Graves on appeal is:

Did the trial court deny Graves a fair trial by an impartial

jury, by permitting the jurors to pose questions during trial?

Background Facts

On February 28, 1994, Graves was charged by information with

burglary in connection with an early-morning incident in the

Kalispell Center Mall, where Graves was employed as a janitor. The

information was later amended to include a charge of felony theft.

The amended information charged that between February 4 and

February 5, 1994, Graves knowingly entered and remained unlawfully

in the Great Bear Bakery in the Kalispell Center Mall with the

purpose to commit the offense of theft, and that he obtained and

exerted unauthorized control over more than $500 in currency and

checks belonging to the owners of the bakery.

Graves entered pleas of not guilty to the charges and

proceeded to trial on May 16, 1994. Following voir dire and

outside the presence of the jury, the District Court inquired

whether either party wished to object to the court's standard

practice of permitting jurors to submit to the court written

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questions to be read to witnesses following their testimony.

Defense counsel objected to this procedure, while counsel for the

State argued that this was a matter for the court's discretion.

In his preliminary instructions to the jury, the trial judge

instructed the jury that they would be permitted to ask questions

of witnesses. In outlining the procedure to be followed, the judge

stated that "if at the conclusion of a witness' [testimony] you

feel that some significant ground has been left unturned or

something is not totally clear to you but could be clarified,

you're welcome to ask any number of questions you wish."

The trial judge instructed the jurors to write out their

questions and hand them to the bailiff who would then deliver them

to the judge for review. Both counsel were given the opportunity

to review the questions and make objections in a private side bar

with the court. The judge read the questions to the witnesses as

they were submitted and counsel were then permitted to ask followup questions. In the course of the trial, the District Court

permitted 13 questions from the jury, including several questions

for the defendant at the conclusion of his testimony.

The jury found Graves guilty on both counts. At his

sentencing hearing, Graves admitted that he had committed the

burglary and theft. The District Court sentenced Graves to 20

years in the Montana State Prison for the burglary conviction and

IO years for the theft conviction. The sentences were to run

concurrently to each other, but consecutively to the sentences for

two prior convictions. Graves was also designated a persistent

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felony offender and sentenced to an additional IS years in the

Montana State Prison with 10 years suspended.

Discussion

Did the trial court deny Graves a fair trial by an impartial

jury, by permitting the jurors to pose questions during trial?

Graves argues that allowing the jurors to pose questions to

witnesses during his trial encouraged the jurors to become

advocates and jeopardized the adversarial nature of his trial.

Graves claims that juror participation in the presentation of

evidence encourages jurors to depart from their role as passive

listeners and assume an active adversarial or inquisitorial stance

and that this practice spawns premature deliberation by the jurors.

The State argues that allowing jurors to question witnesses is

within the sound discretion of the trial court and, if properly

structured and organized, this practice can be beneficial to both

parties. The State claims that there is no constitutional mandate

that jurors sit silently and passively accept the omission of

certain facts that may be helpful in rendering their decision. In

addition, the State points out that juror questions may bring to

the court's attention improper concerns which can be promptly

addressed with cautionary instructions.

While this Court has not previously addressed the issue of

whether jurors should be permitted to pose questions to witnesses

in a criminal trial, courts in other jurisdictions have struggled

with this issue for some time. A brief examination of some of

these cases is appropriate in resolving this issue.

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In 1970, in an opinion lacking any analysis of this issue, the

Ninth Circuit Court of Appeals held that allowing a juror to submit

a question to the court was not error. U.S. v. Gonzalez (9th Cir.

1970), 424 F.2d 1055, 1056.

Similarly, in 1979, the Fifth Circuit Court of Appeals

determined that the proper handling of juror questions is a matter

within the discretion of the trial judge. U.S. v. Callahan (5th

Cir. 1979), 588 F.2d 1078, 1086. In Callahan, the court of appeals

stated:

There is nothing improper about the practice of

allowing occasional questions from jurors to be asked of

witnesses. If a juror is unclear as to a point in the

proof, it makes good common sense to allow a question to

be asked about it. If nothing else, the question should

alert trial counsel that a particular factual issue may

need more extensive development. Trials exist to develop

truth. It may sometimes be that counsel are so familiar

with a case that they fail to see problems that would

naturally bother a juror who is presented with the facts

for the first time.

Callahan, 588 F.2d at 1086.

On the other hand, in a 1985 opinion, the Fourth Circuit Court

of Appeals pointed out that although it also believed that juror

questioning is a matter within the trial court's discretion, the

practice of juror questioning is "fraught with dangers which can

undermine the orderly progress of the trial to verdict."

DeBenedetto v. Goodyear Tire &Rubber Co. (4th Cir. 1985), 154 F.2d

512, 516. In this case, jurors were allowed to pose questions

orally in the presence of other jurors. The court of appeals

expressed its concern about jurors asking improper or prejudicial

questions and about jurors attaching more significance to answers

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to questions posed by jurors. DeBenedetto, 754 F.2d at 516-17.

However, because it could detect no prejudice to either party and

because appellants did not object to the procedure at the time of

trial, the court of appeals did not find error in the use of juror

questions in that case. DeBenedetto, 754 F.2d at 517.

A few years later, in U.S. v. Lewin (8th Cir. 1990), 900 F.2d

145, the Eighth Circuit Court of Appeals set forth certain

safeguards that should be used if a trial court decides to permit

jurors to ask questions of witnesses. In Lewin, the trial court

informed the jurors at the beginning of the trial that they would

be allowed to ask questions of each witness after crossexamination. The jurors asked their questions orally and

objections were discussed at the bench, but within the presence of

the jury. Lewin, 900 F.2d at 147. The court of appeals stated

that if a trial court decides to permit jurors to ask questions, it

should consider requiring jurors to submit their questions in

writing, or orally out of the presence of the other jurors, and

without prior discussion with the other jurors. Lewin, 900 F.2d at

148.

In the case before us on appeal, Graves relies on a 1992 case,

Morrison v. State (Tex.Crim.App. 1992), 845 S.W.Zd 882, for his

contention that the risks posed by permitting jurors to question

witnesses in a criminal trial far outweigh any benefits. In

Morrison, the trial judge instructed the jury that following the

testimony of each witness, jurors could submit written questions to

the court to be asked of that witness. The court would rule on the

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questions outside of the presence of the jury. If a question was

ruled admissible, the judge would recall the jury and read the

question to the witness. Counsel would then be allowed to ask

follow-up questions limited to the subject matter of the juror's

question. During trial, a juror question was ruled inadmissible,

however, the prosecutor was allowed to present additional evidence

based on that question. Morrison, 845 S.W.2d at 883.

1n his appeal, Morrison claimed that juror questions amounted

to a form of communication between the jurors and the parties and

called into question the integrity of the adversary system.

Morrison, 845 S.W.2d at 884. The Court of Criminal Appeals of

Texas agreed holding that no authority established or authorized

jurors to ask questions of witnesses in the criminal jurisprudence

of Texas, therefore, permitting juror questions was error.

Morrison, 845 S.W.2d at 889.

The same year that Morrison was decided, the First Circuit

Court of Appeals held that allowing juror-inspired questions in a

criminal case is not prejudicial per se but is a matter committed

to the sound discretion of the trial court. U.S. v. Sutton (1st

Cir. 1992), 970 F.2d 1001, 1005. In Sutton, the jury was permitted

to ask questions of witnesses in writing. The judge reviewed the

questions and, if he determined they were relevant, he asked them

for the jury and then asked follow-up questions. Sutton, 970 F.2d

at 1003.

The appellant in Sutton asserted that the questioning of

witnesses by jurors in a criminal trial "is inherently prejudicial,

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invades counsel's province, distorts the roles of judge and jury,

and unfairly inhibits objections." Sutton, 970 F.2d at 1004. The

court of appeals disagreed holding that "the lower court's use of

a small number of juror-inspired questions, under carefully

controlled conditions, did not impinge upon the defendant's

substantial rights or tarnish the fundamental fairness of his

trial." Sutton, 970 F.2d at 1008.

Likewise, in U.S. v. Cassiere (1st Cir. 1993), 4 F.3d 1006,

the First Circuit Court of Appeals determined that the trial court

did not commit plain error in allowing eleven juror-inspired

questions to be asked of witnesses including four questions asked

of the defendant. The court of appeals found that the questions

asked were relatively bland in character and designed to clarify

and explain testimony already given. Cassiere, 4 F.3d at 1017.

However, the court of appeals stated that the practice should be

reserved for exceptional situations, and should not become the

routine, even in complex cases. Cassiere, 4 F.3d at 1018.

The courts in three recently decided cases took varying views

o n the practice of permitting jurors to pose questions to

witnesses. In U.S. v. Bush (2nd Cir. 1995), 47 F.3d 511, 514, the

Second Circuit Court of Appeals stated that every circuit court

that has addressed this issue agrees that questioning by jurors is

a matter within the judge's discretion and is similar to witnessquestioning by the judge himself. Moreover, the court of appeals

claimed that state courts have overwhelmingly placed juror

questioning of witnesses within the trial judge's discretion.
Bush 47 -I F.3d at 515. Nonetheless, the court of appeals

discouraged this practice in Bush finding that the practice risks

turning jurors into advocates, thereby compromising their

neutrality. -,Bush 47 F.3d at 515.

The court of appeals pointed out that

the practice will often impale attorneys on the horns of

a dilemma. If attorneys object to questions posed by the

jurors, they risk alienating the jury. On the other

hand, foregoing objections will usually constitute a

waiver of even the most pernicious errors.

- I Bush 47 F.3d at 515.

Several months later, that same court stated in U.S. v. Ajmal

(2nd Cir. 1995), 67 F.3d 12, 14, that

the practice of allowing juror questioning of witnesses

is well entrenched in the common law and in American

jurisprudence. Indeed, the courts of appeals have

uniformly concluded that juror questioning is a

permissible practice, the allowance of which is within a

judge's discretion. [citations omitted] Nonetheless, the

courts of appeals are similarly unified in their

disapproval of the general practice of juror questioning

of witnesses.

Hence, in Ajmal, the court of appeals determined that the trial

court had abused its discretion by allowing jurors to question

witnesses as a matter of course, as the practice should be reserved

for exceptional situations, and should not become routine, even in

complex cases. The court of appeals said that if allowed to

formulate questions throughout the trial, jurors may prematurely

evaluate the evidence and adopt a particular position as to the

weight of that evidence before considering all the facts. Aimal,

67 F.3d at 14.

Most recently, in U.S. v. Bascope-Zurita (8th Cir. 1995), 68

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F.3d 1057, the Eighth Circuit Court of Appeals determined that the

trial court did not err by permitting jurors to ask questions of

witnesses in a drug prosecution. The court of appeals held that

the practice of allowing juror questions is a matter committed to

the sound discretion of the trial court and that the procedure used

by the trial court of submitting written questions to the court so

that evidentiary issues could be resolved, did not constitute an

abuse of discretion. Bascooe-Zurita, 68 F.3d at 1064.

After reviewing these decisions from other jurisdictions, we

agree that juror questioning of witnesses is a matter within the

sound discretion of the trial judge. Moreover, Montana's Rules of

Evidence provide that the trial court controls the mode and order

of interrogating witnesses and presenting evidence so as to "make

the interrogation and presentation effective for the ascertainment

of the truth." Rule 611(a)(l), M.R.Evid.

While we neither encourage nor discourage the practice of

allowing jurors to question witnesses, we, nevertheless, caution

trial courts which allow this practice to be ever mindful that the

jury's fact-finding role is to be accomplished in a spirit of

neutrality, fairness and open-mindedness. Accordingly, juror

questioning of witnesses must be at all times carefully controlled

by the court to insure that individual jurors do not lapse into an

advocacy role, or by their questions intimate any prejudgment of

the evidence or the credibility of the witnesses being questioned.

Additionally, we emphasize that the adoption of this practice is at

the discretion of the trial court. Jurors have no inherent right

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to question witnesses, and juror questioning may not be appropriate

in all cases or of all witnesses.

To that end, we conclude that if a judge, in his or her

discretion, decides to allow this practice, certain minimum

safeguards must be implemented. These safeguards include: (I) the

questions should be factual, not adversarial or argumentative, and

should only be allowed to clarify information already presented;

(2) the questions should be submitted to the court in writing; (3)

counsel should be given an opportunity to object to the questions

outside of the presence of the jury; (4) the trial judge should

read the questions to the witness; and (5) counsel should be

allowed to ask follow-up questions.

In the case before us on appeal, the District Court did use

the appropriate safeguards by allowing only written questions to be

submitted to the court and reviewing these questions for

evidentiary problems. Both counsel were given the opportunity to

object to the questions in a private side-bar with the court and to

ask follow-up questions of the witnesses. In addition, the

questions were intended to clarify certain facts brought out by the

witnesses and were non-argumentative.

Graves also argues that to allow the jurors to question the

accused when the accused chooses to testify at trial is an abuse of

discretion. While we agree that this is a dangerous practice, it

was defense counsel that invited the jurors to ask questions of

Graves and Graves may not now claim error in that regard.

Accordingly, we hold that permitting jurors to pose questions

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to witnesses during trial is a matter within the sound discretion

of the trial court, and the District Court did not abuse its

discretion in this case.

Affirmed.

Justice W. William Leaphart did not participate in this opinion.

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