State v. Hernandez , 102 Idaho 349 ( 1981 )

PER CURIAM.

This is an appeal from a conviction of assault with a deadly weapon entered following a jury verdict. Defendant-appellant Hernandez was thereafter sentenced to a three year determinate sentence. The sole issue on appeal is appellant’s assertion that the trial judge improperly communicated with the jury during its deliberation and improperly denied a jury request. We disagree and affirm the conviction.

During jury deliberations one juror sent a note to the trial judge which stated: “Would you please supply the jury with a transcript of the trial?” The trial judge conferred with both the prosecutor and defense counsel and with their approval sent a handwritten response to the jury which stated:

“A transcript of the trial could not be prepared for several days so it is not possible. If you need some specific area in dispute clarified it is possible to have the court reporter read it back orally. The court is reluctant to emphasize any portion of the trial by re-reading that part only unless it is necessary.”

Although appellant argues that the foregoing procedure violated I.C. § 19-2204, we disagree. I.C. § 19-2204 provides:

“After the jury have retired for deliberation, if there is any disagreement between them as to the testimony, * * * they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney and the defendant or his counsel, or after they have been called.”

The response of the trial judge to the jury inquiry clearly indicated the opportunity for the jury to have testimony read to them and the intention of the trial judge to, if necessary, conform with I.C. § 19-2204. Such procedure was equally clearly an attempt by the trial judge to pinpoint and clarify any specific area of the testimony in dispute. See People v. Gordon, 222 Cal.App.2d 687, 35 Cal.Rptr. 335 (1963); People v. Sprinkle, 201 Cal.App.2d 277, 19 Cal.Rptr. 804 (1962). See also People v. Anjell, 100 Cal.App.3d 189, 160 Cal.Rptr. 669 (1979); People v. Stafford, 29 Cal.App.3d 940, 106 Cal.Rptr. 72 (1973).

The appellant asserts that the trial court erred in failing to call the jury into open court rather than engage in the written procedure utilized by the trial court. Rueth v. State, 100 Idaho 203, 596 P.2d 75 (1978); but see State v. Randolph, 102 Idaho 153, 627 P.2d 782 (1981). Here, if error there was, it was invited. Both counsel conferred with the trial judge regarding the jury’s request and failed to object thereto. See State v. Cysewski, 101 Idaho 353, 612 P.2d 1200 (1980); State v. Griffiths, 101 Idaho 163, 166, 610 P.2d 522 (1980); State v. Watson, 99 Idaho 694, 587 P.2d 835 (1978). We hold that any error, if such there was, was waived.

Affirmed.