Heard, considered, and decided by the court en banc.
1. The non-accomplice evidence was sufficient to corroborate the accomplice testimony and support the conviction.
2. Where the court makes several visits to the jury room during deliberations to discuss on the record issues relating to the case, and the record is unclear as to whether the court made another visit off the record, the visits constitute reversible error.
3. The jury should be given a cautionary instruction on accomplice testimony in any criminal case where it is reasonable to consider any witness against the defendant to be an accomplice.
The opinion of the court was delivered by: Hanson, Justice.
Appellant Trevor Anthony Brown was convicted of aiding and abetting first-degree felony murder and was sentenced to life in prison. Brown sought post-conviction relief arguing that: (1) the district court erred by failing to give a jury instruction on accomplice testimony; (2) he was denied a fair trial because one of the state's witnesses made references to his post-arrest silence in violation of his right to remain silent; (3) the district court improperly communicated with the jury in the jury deliberation room; (4) trial counsel was ineffective; and (5) the non-accomplice evidence was insufficient to support the conviction. The post-conviction court denied Brown's petition for post-conviction relief, essentially determining that any errors were harmless and sufficient evidence existed to convict Brown. We reverse and remand for a new trial.
Sometime after 10 p.m. on the evening of December 13, 1998, Tucker Calvin Wilson joined three acquaintances-Michelle Young, Allen Jamal Robinson, and Brown-after the three had been drinking for several hours. Wilson drove the group to a church near the Mendota Bridge and the four individuals proceeded to climb down the embankment under the bridge. Wilson's body was later discovered at that site. An autopsy indicated that he had died of multiple blunt force head and neck injuries.
Brown was ultimately indicted on several counts of first-and second-degree murder. At his trial, both Robinson and Young testified for the state. Although their testimony differed to some degree, both of them implicated Brown as the primary assailant. Robinson testified that after Wilson shoved him down a rocky slope, causing him to injure his head on the rocks, he retaliated by striking Wilson in the face. He claimed that he then ascended the embankment without participating any further in Wilson's death. Robinson said that he witnessed Brown and Wilson engaged in a fistfight; he continued his ascent of the slope without intervening; and, moments later, he saw Young and Brown walking up the embankment.
Young testified that she witnessed both Robinson and Brown kicking and throwing rocks at Wilson. She said that she attempted to flee but was stopped by Robinson, who required her to search Wilson for car keys, identification, and money. After Robinson escorted her up the embankment, she looked back down the slope and saw Brown "still kicking [Wilson] and yelling at him and telling him to die." Young testified that the beating lasted for "a good half an hour."
Young testified that Robinson, Young, and Brown then drove Wilson's car to the Mount Airy apartment complex, where an acquaintance of Robinson rented an apartment. At the Mount Airy apartment complex, Brown, Young, and Robinson passed Felicia Rocha. Rocha testified that she noticed red spots on Brown's shirt and pants. Rocha also testified that she saw something red on Robinson's shoe and the bottom of his pant legs.
Richard Propps was a guest at the apartment when the three arrived. He testified that he spotted blood on Brown's clothing and immediately decided to leave because he "didn't like what it looked like * * *." Young testified that Brown and Young went directly to the bathroom where Brown removed his pants, socks, and shoes and changed into a pair of pants and shoes given to him by Robinson. Security camera tapes show that Brown entered the apartment in light colored pants, yet exited wearing dark colored pants.
Young's sister, Patricia Young, also testified for the state. She said that after the murder, Brown admitted to her that he had beaten and kicked Wilson to death. Finally, the state elicited testimony from Sergeant Bradley Wayne that made two references to Brown's exercise of his right to remain silent. When defense counsel objected after the second reference, the district court struck the testimony from the record and cautioned the jury to disregard it. Prior to jury deliberations, the court advised the jury again that, "Any testimony that the court has excluded or told you to disregard is not evidence and must not be considered."
Brown's attorney did not request a jury instruction on accomplice testimony and none was given. After the jury retired to deliberate, the district court judge made at least three visits to the jury room. On each visit he was accompanied by a court reporter and he made a record.
On the judge's first visit to the jury room, he discussed adjournment of jury deliberations for September 28, 1999.
THE COURT: The record should reflect that I can't talk to you about anything unless it goes on the record other than what I did before. Record should reflect that the Judge is in the jury room. The attorneys have been appraised [sic] of what I propose to do, and they have ...