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Harris v. State1/7/2004
were "locked"; however, the foreperson stated that the numerical division was "ten to two or eleven to one"; inherent in this answer was the possibility that progress was still being made. Appellant's third request to take the case from the jury came the next day, after they reported being stalled at "seven to five firm"; the very fact that their numerical division had changed drastically since the day before supported a conclusion that there was no "deadlock" yet. Appellant's final request came later on the third and final day, shortly after the jury had once again communicated with the court — not to report a deadlock, but to seek additional information about Appellant. It is apparent that the jurors made continuous progress throughout their deliberations, and that they had many changes of mind as to votes. The trial court did not abuse its discretion in refusing to take the case from them, or instructing them that it could do so.
Nor are we persuaded that jury sequestration was violated when, at one point during the deliberations, the foreperson saw the trial judge in the courthouse, gave a "thumbs up" gesture and winked, and on the final day of deliberations, the foreperson came down from the deliberation room to inform the court that a decision appeared to be forthcoming. Unilateral gestures of this sort are not equivalent to "communications." See Mollett v. State, 1997 OK CR 28, 42, 939 P.2d 1, 11-2, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998). The trial judge promptly made note of these apparently spontaneous incidents in the record, and there is no evidence that the court responded to them, verbally or otherwise.
More troubling, however, is the information the jurors received in response to their question about Department of Corrections policies. Oklahoma has a long history of declining to answer jurors' questions about parole. No Judge knows with certainty how long it will be until a parole is granted by the executive branch. This Court has said, " e refuse to open a floodgate of parole information which would serve only to muddy the waters, and could later be used to drown other defendants downstream." Mayes v. State, 1994 OK CR 44, 136, 887 P.2d 1288, 1318. Likewise, no Judge can predict, over time, where the Department of Corrections will assign a prisoner to serve a sentence. Any instruction attempted by the judicial branch, about future actions of the executive or legislative branch in these areas, is doomed to inaccuracy. There is simply no clear answer to this type of question, and for that reason, none should be attempted. Because we cannot say this error did not contribute to the jury's sentencing decision, Appellant's death sentence on Count 1 is VACATED, and the case is REMANDED FOR RESENTENCING. Given our resolution of this case, Appellant's remaining propositions of error are moot.
DECISION
The judgment of the district court as to all counts is AFFIRMED. The sentences on Counts 2 and 3 are AFFIRMED. The death sentence imposed on Count 1 is VACATED and the case is REMANDED FOR RESENTENCING.
OPINION BY JOHNSON, P.J. LILE, V.P.J.: CONCURS LUMPKIN, J.: CONCURS CHAPEL, J.: CONCURS IN RESULTS STRUBHAR, J.: CONCURS
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