A jury found Daniel Lawson guilty of two counts of child molestation and one count of aggravated child molestation. On appeal, Lawson contends that the trial court erred in failing to declare a mistrial after a bailiff improperly responded to a juror’s question. He further argues that he received ineffective assistance of trial counsel. As we find no error, we affirm. 1. According to Lawson, the trial court was required to declare a mistrial following improper communication between the bailiff and jurors. The record shows that after the close of evidence, but before the trial court charged the jury, one of the jurors allegedly asked the bailiff if “you guys or the court could go to the apartment complex and get a sketch of the layout of the apartment” where the crimes took place. The bailiff responded, “No ma’am.” The bailiff immediately reported this communication to the judge who then instructed the jurors in open court that they were not to ask the bailiff any questions, but that the bailiff’s answer was correct —the jury would not have access to any evidence other than that which had already been presented in court. The judge further informed the members of the jury that while they would not have access to a sketch of the apartment, they could discuss the layout issue among themselves during deliberation. Counsel for appellant did not move for a mistrial based on the improper jury-bailiff communication, nor did he object to the judge’s subsequent remarks to the jury. Accordingly, this issue has been waived on appeal.1 Assuming, for the sake of argument, that the issue had not been waived, we nonetheless find the court did not abuse its discretion in declining to grant a mistrial.
As a general rule, a bailiff’s improper communication with jurors is presumed to be prejudicial.2 This is because a bailiff is not permitted to act as an interpreter either of the jury’s questions or of the trial judge’s responses, especially when the question and/or responses are “related to the jury’s decision-making process based on the bailiff’s perception of the question, the law, or the evidence.”3 The danger exists that jurors will treat the bailiff’s comments as a supplemental jury instruction and that such comments will interfere with the deliberative process.4 Moreover, when a bailiff communicates directly with the jury on substantive matters, it may infringe upon the defendant’s constitutional right to be present at every stage of trial that materially affects his case.5 Here, in responding to a jury’s question about obtaining additional evidence, the bailiff overstepped his authority.
