Metropolitan News-Enterprise


Wednesday, November 21, 2001


Page 1


C.A. Upholds Law Allowing Read-Back of Testimony in Judge’s Absence

Third District Justices Say Rereading Not Critical Stage of Criminal Proceedings


By KENNETH OFGANG, Staff Writer/Appellate Courts


A statute allowing testimony to be read back to jurors without the judge being present was upheld yesterday by the Third District Court of Appeal.

“When a trial judge exercises control over whether and what testimony previously introduced in evidence should be read to the jurors at their request after deliberation had begun,” Presiding Justice Arthur L. Scotland wrote, “and the judge remains available to address any questions from the jurors to the court that might arise during the readback of the testimony, nothing in logic, reason, due process of law, or the right to a trial before an impartial jury compels the judge to be present while the testimony is read to the jurors.”

The court affirmed Leslie Gene Rhoades’ conviction on charges of stalking,  assault with a deadly weapon, burglary, false imprisonment, witness tampering, false imprisonment, burglary, recidivist petty theft, criminal threats, and reckless driving.

“After his release from prison, defendant…who had five convictions for serious felonies, wanted to continue his relationship with the woman he had lived with in the past,” Scotland explained. “However, she was unwilling because he had become increasingly domineering, possessive, and violent.  To force her to stay with him, defendant engaged in a series of crimes, including threats and violence, against her and her friends.  The ‘prize’ that he received for his reign of terror was not her renewed affection but, rather, a term of 227 years to life in state prison.”

Decision Challenged

On appeal, the defense challenged Shasta Superior Court Judge Richard McEachen’s decision to absent himself from the reading back of certain testimony requested by jurors. The read-back occurred in the jury room without the judge or counsel present, a procedure agreed to by the judge and by the lawyers for both sides.

Rhoades’ appellate counsel conceded that the judge’s absence was stipulated to and was consistent with Penal Code Sec. 1138.5, but argued that the statute was unconstitutional and that McEachen’s absence deprived the defendant of his fundamental right to a fair trial before an impartial jury.

Sec. 1138.5 provides:

“Except for good cause shown, the judge in his or her discretion need not be present in the court while testimony previously received in evidence is read to the jury.”

Federal Right

Scotland, writing for the appellate panel, acknowledged a 1995 Florida Supreme Court decision holding that the defendant has a non-waivable federal constitutional right to have the judge present during a read-back. But Scotland said the case was wrongly decided.

The California high court, the jurist noted, has held that the rereading of testimony is not a critical stage of the proceedings, and that the defendant may waive the right to be present. “If the readback of testimony is not a critical stage of the proceedings such that an accused need not personally waive his own presence during the readback, it follows that the accused need not personally waive the judge’s presence either,” Scotland reasoned.

Rhoades, he said, loses his argument both on waiver and on the merits.

As long as the trial judge retains control over the process and remains available to handle any problems that arise—such as juror questions about the testimony—there is nothing unfair about the judge being absent during the actual reading back of the testimony, Scotland concluded.

In an unpublished portion of the opinion, Scotland rejected the contention that the sentence constituted cruel or unusual punishment. The seriousness of Rhoades’ crimes and past criminal history, the fact that he was a recent parolee, his past history of violating parole, and the comparable sentences given recidivists in California and elsewhere all support the lengthy prison term imposed by the judge, Scotland said.

“According to defendant, although he terrorized, threatened, and bullied Doris, and destroyed the contents of her house, the current crimes are not that serious because he ‘did not visibly injure anybody, and the situation developed out of a failed romance,’ ”  the presiding justice wrote. “We are not persuaded.”

Scotland labeled “offensive” the suggestion that terrorist and assaulting behavior is less serious if the parties had a previous romantic relationship.


Copyright 2001, Metropolitan News Company