State v. Graff

¶1OPINION

¶2By the Court,

¶3Respondent was tried by a jury on six counts of unlawful possession of drugs. She was convicted on four counts; acquitted on two counts. Ascertaining that the trial judge had communicated with jurors during deliberations, Judge McKib-ben ordered a new trial. The State appeals, arguing that no prejudice to respondent had been shown.

¶4The communication by the trial judge was not upon an extraneous matter. The jurors agreed that because they were having difficulty applying an instruction, the trial judge entered the jury room and gave an example of “possession.” As the State acknowledges, this action contravened NRS 175.161.1 After *475the judge’s communication, two of the jurors changed their votes on two counts to “not guilty.”

¶5In our view, if a trial judge enters a jury room and communicates with deliberating jurors on a subject relevant to the case, reversal is required. We decline to adopt the views expressed in cases cited by the State. See, e.g., State v. Pokini, 526 P.2d 94 (Haw. 1974) and Wiseman v. People, 498 P.2d 930 (Colo. 1972). As the Arizona Supreme Court has written:

. . . We find that in practically all of the reported cases appellate courts properly regard communications between the trial judge and jurors, relative to the trial, as of a more serious nature and more likely to have a prejudicial effect than communications between other court officials or attendants and jurors. This for the reason that the jurors look to the judge as their impartial authority and guide in their deliberations. In a criminal case there is a tendency to afford the defendant even greater protection than in civil cases. Under facts such as are shown here, where the communication concerned the case and not merely extraneous matters, we are of the opinion that the defendant is not required to show actual prejudice.

¶6State v. Burnetts, 295 P.2d 377 at 379 (Ariz. 1956).

¶7Affirmed.