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Seeley v. State5/22/1998
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C. INSTRUCTION NO. 15
Seeley raises several issues concerning the procedure by which Instruction No. 15 was submitted to the jury. This instruction is commonly referred to as an "Allen-type" instruction, a term used to describe an instruction which urges continued deliberation when the jury is temporarily unable to come to an agreement regarding guilt or innocence. Hoskins v. State, 552 P.2d 342, 347 n. 7-8 (Wyo. 1976), cert. denied, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). Generally, the concern raised by such instruction is the possibility that a juror voting in the minority may feel coerced into abandoning beliefs honestly held and succumb to the will of the majority in order to reach a unanimous decision. Smith v. State, 564 P.2d 1194, 1201 (Wyo. 1977). Thus, the content of such instructions are carefully reviewed.
In this case, however, Seeley essentially concedes that the substance of the instruction was not coercive. Instead, Seeley claims reversible error because the communication from the jury was not reduced to writing, the court's response was not delivered in open court, and defense counsel was allegedly denied the opportunity to object. He contends that this procedure deprived him of his constitutional and statutory right to counsel and his right to be present at all material stages of his trial. Wyo. Stat. § 7-11-202 (1997); W.R.Cr.P. 43. He also alleges the district court's actions erroneously depart from procedural rules for instruction to the jury. W.R.Cr.P. 30; W.R.C.P. 51.
The State argues there is no factual basis to support Seeley's claim that defense counsel was denied the chance to object to Instruction No. 15. We agree. Although Seeley relies on his trial counsel's affidavit, it is too little too late to raise as an issue for appeal. Trial counsel's affidavit was filed long after the district court had denied Seeley's motion and resolved any alleged inaccuracies in the trial record. Since Seeley's presence was not required at the instruction conference, Lobatos v. State, 875 P.2d 716, 724 (Wyo. 1994), this claim is without merit.
Of more substance is Seeley's contention that the district court denied Seeley his constitutional right to be present with counsel during jury instruction. The Sixth Amendment and the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States are held to guarantee an accused the right to be present during every stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987); Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970). Wyo. Const. art. 1, § 10 "is even more explicit in its guarantee to an accused of the right of presence at trial * * *." Maupin v. State, 694 P.2d 720, 722 (Wyo. 1985).
" 'The right to be present at trial stems in part from the fact that by his physical presence the defendant can hear and see the proceedings, can be seen by the jury, and can participate in the presentation of his rights. * * *' Bustamante v. Eyman, 456 F.2d 269, 274-275 (9th Cir. 1972)."
Maupin, 694 P.2d at 723. These constitutional guarantees are incorporated into Wyo. Stat. § 7-11-202 and W.R.Cr.P. 43(a), which provide that a defendant shall be present "at every stage of the trial * * *."
Jury instruction is generally held to be a point in the criminal proceeding which warrants the presence of the defendant. Maupin, 694 P.2d at 723; see also Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975); Larson, 911 F.2d at 3
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