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Seeley v. State5/22/1998
94; and United States v. Fontanez, 878 F.2d 33, 35 (2nd Cir. 1989). However, the due process right to be present is not unequivocal. The defendant's presence is not required when it "would be useless, or the benefit but a shadow." Snyder v. Com. of Mass., 291 U.S. 97, 106-07, 54 S.Ct. 330, 332-33, 78 L.Ed. 674 (1934).
Relying primarily on our holding in Carlson v. Carlson, 888 P.2d 210, 215 (Wyo. 1995), the State suggests that Instruction No. 15 may be considered an "administrative directive" rather than an instruction on the law, and therefore Seeley's presence was not required. In Carlson, the jury sent a message to the district court, which responded without informing counsel or preserving a record. Id. at 212. Evidence at a post-trial hearing showed that the jury's question was whether it may add comments to the verdict form. Id. The district court's response was: "fill out the * * * form." Id. at 213.
On appeal, we recognized that some communication between the district court and the jury may be conducted informally, and will be found erroneous only if the defendant shows he was prejudiced thereby. Id. at 215. Communications not addressed by rule or statute, i.e., those communications which are "not * * * instruction
on the law," may be considered outside the parameters of W.R.C.P. 51 and the statutes relating thereto. Carlson, 888 P.2d at 214-15. We concluded that the communication in Carlson constituted an "administrative directive" and was not substantially prejudicial to any party. Consequently, no error was found. Id. at 215.
An "Allen-type" instruction, however, does not fall into the same category as the district court's message in Carlson. Merely because the subject matter of the communication is not a direct comment on the law or its application to the pending case does not automatically render the communication an "administrative directive."
Providing guidance in this area is Acree v. Minolta Corp., 748 F.2d 1382, 1385 (10th Cir. 1984), where the Tenth Circuit Court of Appeals distinguished between permissible and impermissible ex parte communication between the district court and the jury:
The trial court's explanation did not instruct the jury on what the law is or on how to apply the law to the evidence. Nor did it instruct the jury on how to conduct itself. It merely gave the jury collateral information that did not affect its deliberation. Accordingly, the answer to the jury's question regarding the police report was an administrative direction.
(Emphasis added.)
Instruction No. 15 was clearly intended to instruct the jury on how to conduct itself and to "affect" the jury's deliberation. Indeed, the entire instruction covered over one typewritten page and emphasized the importance of that jury's deliberations toward reaching a unanimous decision. An "Allen-type" instruction is not equivalent to a direction to "fill out the * * * form" nor is it of the same quality as communications found to be "ministerial" in other jurisdictions. See Allen v. Indiana, 686 N.E.2d 760, 782 (Ind. 1997); State v. Mims, 222 Kan. 335, 564 P.2d 531, 536 (1977); and People v. Smith, 204 A.D.2d 748, 612 N.Y.S.2d 452, 452 (1994).
Consequently, we find that the district court erred in submitting Instruction No. 15 to the jury outside the presence of the defendant and his counsel. However, the error, even though of constitutional proportion, is subject to a harmless error analysis. Gomez, 67 F.3d at 1528. Before a federal constitutional error can be held harmless, the court must be able to declare its belief that the error was harmless beyond a reasonable doubt. Price v. State, 807 P.2d
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