Jury-Instruction Case Deadlocked

The law often is built upon precise definitions of obscure terms, with judges instructing juries upon the meaning of the words. What happens, though, if jurors go on their own, and consult a dictionary in a criminal case?

The answer is unclear, after a new N.C. Supreme Court decision — or better said, lack of decision — leaving little case law in this state on the issue.

On Feb. 3, 2002, William Bauberger attended a Super Bowl party where he consumed at least 10 beers. Afterward, he decided to drive to a friend’s house, despite his being intoxicated and having had his driver’s license suspended a few months earlier. Driving the wrong way down an exit ramp, Bauberger’s car collided with another vehicle. A passenger in the second car, Carol Foy, was killed. The driver, William Foy, was seriously injured.

At trial, Bauberger was charged and convicted of second-degree murder and assault with a deadly weapon inflicting serious injury.

After trial, it came out that the jurors had consulted a dictionary for the definitions of a number of words included within the legal definition of “malice.” The judge instructed jurors that malice, which is necessary element of a second-degree murder conviction, “arises when an act which is inherently dangerous to human life is intentionally done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.”

Among the words the jury looked up was “recklessly,” which was defined as a “lack of due caution.”

Bauberger challenged his murder conviction, arguing that his constitutional right to a fair trial was violated.

A majority of a three-judge panel of the N.C. Court of Appeals held that though the jury’s actions were improper, Bauberger was not entitled to a new trial. The majority reasoned that previous N.C Supreme Court decisions had distinguished between internal and external influences on a jury. And as an internal influence — one coming from the jury itself — case law held that no relief was warranted.

“Here, the information considered by the jury did not discredit defendant’s testimony or witnesses; it concerned legal terminology, not evidence developed at trial,” Judge Rick Elmore wrote.

“Under these circumstances, the juror misconduct did not violate defendant’s right to confrontation. We hold that the trial court did not err in concluding that the affidavits did not contain extraneous information and that defendant’s right to confrontation was not violated by the juror misconduct.”

Judge Martha Geer disagreed with the majority holding.

“A lynchpin of our judicial system is the principle that the jury will only apply the law as described by the trial judge,” she wrote.

“A jury is not permitted to engage in a private investigation of the law or to consult outside sources to untangle what the trial judge meant in his instructions. Yet, that is precisely what the jury did in this criminal case. Because I believe defendant was prejudiced by the jury’s consideration of extraneous material and, therefore, is entitled to a new trial, I respectfully dissent.”

The N.C. Constitution states that a defendant has a right to be present at all stages of a trial.

“…a defendant is entitled to be present whenever the jury is instructed. When a jury engages in self-help and consults with sources other than the trial judge to clarify the governing the law, it is effectively instructing itself.”

Geer observed that both involuntary manslaughter and second-degree murder could involve reckless behavior, with the difference between the crimes being one of degree rather than kind of recklessness.

“The focus on ‘lack of due caution’ risks blurring the distinction between involuntary manslaughter and second degree murder. As this Court has explained, the recklessness referred to in second degree murder instructions ‘continues to require a high degree of recklessness to prove malice’ and the instructions to the jury must ensure that the jurors understand ‘the high degree of recklessness required for murder as opposed to the lesser degree required for manslaughter.’”

Geer found that the trial judge’s instruction would ordinarily have been enough to highlight this distinction. That might not have been the circumstance at Bauberger’s trial, though, as the jury could have been influenced by or relied upon the dictionary definition that defined “recklessly” as merely a “lack of due caution.”

“I know of no words that would sufficiently condemn defendant’s conduct, and he should be severely punished. He is, however, entitled to be convicted of second degree murder based on a trial judge’s instructions rather than on a dictionary definition.”

Because the Court of Appeals decision was not unanimous, the state Supreme Court was required to hear the case when Bauberger further appealed.

The high court, which has seven justices, did not issue an opinion in the case. Justice George Wainwright recused himself. The six remaining justices were equally divided, with three voting to uphold Bauberger’s conviction and three in favor of a new trial. Under state law, the tie means that the Court of Appeals’ decision was upheld but it does not serve as legal precedent. Thus Bauberger’s murder conviction stands but the state’s trial courts cannot use the Court of Appeals decision for guidance if the issue comes up again.

The case is Court of Appeals’ decision in the State v. Bauberger,(172A06)