Beck v. Townsend ( 2005 )

VOIGT, Justice,

specially concurring.

[¶ 19] I agree with the result reached by the majority because I do not believe the appellants were prejudiced by the mannér in which the jury question was answered. I write separately, however, because I also do not believe the majority directly identifies the district court’s handling of the jury question as error. The question — if we cannot find solid proof of trespass, can we award damages? — is a question “as to any part of the law arising in the case.... ” Wyo. Stat. Ann. § 1-11-209 (LexisNexis 2005) requires, in part, as follows:

After the jurors have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arisiny in the case, they may request the officer to conduct them to the court where information upon the matter of law shall be given.

(Emphasis added.)

[¶ 20] It was error for the district court to respond as it did to this question about the law. An appropriate response should have been reduced to writing, and then should have been read to the jury in open court, just as any other instruction on the law would be. Carlson v. Carlson, 888 P.2d 210, 213-15 (Wyo.1995); Rissler & McMurry v. Snodgrass, 854 P.2d 69, 70-71 (Wyo.1993). Furthermore, W.R.C.P. 51(b)’s requirement that counsel object to the giving of or the failure to give an instruction before assigning error to such presupposes a reasonable opportunity to object. In the instant case, it is not reasonable to expect counsel to have been able to formulate an objection in answering the judge’s telephone call. Counsel did object upon returning to the courthouse, and I would have found that objection to be sufficient.