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Seeley v. State5/22/1998
909, 917 (Wyo. 1991) (Cardine, J., specially concurring); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In determining whether reversible error occurred, we ask if the defendant's absence created any reasonable possibility of prejudice. Fontanez, 878 F.2d at 37 (quoting United States v. Toliver, 541 F.2d 958, 965 (2nd Cir. 1976)); State v. Hannagan, 559 P.2d 1059, 1065 (Alaska 1977). The State must show that an error can pass muster under this standard. Chapman, 87 S.Ct. at 828. We find the State has done so in this case.
We begin by reviewing the content of the instruction. The only information not contained in the jury's initial instructions is found in the first paragraph of Instruction No. 15, and this new information is presented in language previously approved by this court. Hoskins, 552 P.2d at 348. Further, Instruction No. 15 is not coercive in that the instruction repeatedly admonished the jury not to sacrifice their honestly held beliefs to the majority. Further, the instruction specifically called the jury's attention to the previous instructions on the presumption of innocence and the State's burden to prove guilt beyond a reasonable doubt. Thus, the instruction did not substantially tend to pry jurors from their honestly held beliefs or unduly intrude into the jury's decisional province. Neither did Instruction No. 15 express disapproval of the jurors' position, push the jury to rush to verdict, nor otherwise dilute the requirement of unanimity. See Smith, 564 P.2d at 1201 and Hoskins, 552 P.2d at 346-49.
We are not unmindful of the defendant's due process right to be present to exert a "psychological influence" on the jury. See Maupin, 694 P.2d at 723; Larson, 911 F.2d at 396; Fontanez, 878 F.2d at 38; and Hazel v. United States, 599 A.2d 38, 47 (D.C.App. 1991), cert. denied, 506 U.S. 939, 113 S.Ct. 374, 121 L.Ed.2d 286 (1992). However, courts which have considered the psychological impact of the defendant's presence have focused on the negative influence which may be created by the defendant's "empty chair." That concern is not present in this case since the jury received the written Instruction No. 15 in the jury room, and therefore was not exposed to an empty chair. We further note that Seeley was present to exert his psychological influence when the jury returned its verdict and each juror was individually polled to confirm their agreement with the verdict.
In Hoskins, 552 P.2d at 346, we strongly approved giving an instruction similar to that at issue here at the close of the case with all other instructions. We take this opportunity to reiterate this preference and emphasize again that a defendant has a right to be present with counsel when such instruction is given. However, we are convinced beyond a reasonable doubt that, in this case, Seeley was not prejudiced by the district court's action.
V. CONCLUSION
The district court did not abuse its discretion in denying Seeley's motion for acquittal. Testimony relating the direct observation of a "white residue" on objects normally used for the ingestion of cocaine did not permit inferences based on speculation and conjecture. The evidence presented at trial clearly established a prima facie case of felony possession.
The district court erred when it submitted an "Allen-type" instruction to the jury in Seeley's absence. However, we find that the totality of the circumstances render the error harmless beyond a reasonable doubt.
Seeley's conviction is affirmed.
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