A Muscogee County jury found Robert C. Youmans guilty of arson in the second degree and criminal damage to property in the second degree. On appeal, Youmans claims the trial court erred by failing to disclose the entire contents of a note the court received from the jury, and by refusing to merge his conviction for arson in the second degree into his conviction for criminal damage to property in the second degree. For the reasons stated below, we disagree and affirm. 1. During its deliberations, the jury sent the trial court a note stating, in relevant part: “On Count 1, we currently have a vote of 9 guilty, 2 not guilty, and 1 not sure we are not making headway changing minds what do we do” The trial court read the note in open court, but excluded the numerical information showing the exact split in the jury’s deliberations: On Count One we currently have a vote of “blank” guilty, “blank” not guilty, and “blank” not sure, dash. We are not making headway changing minds, dash. What do we do, question mark. Now, where I said “blank” there are numbers in this question, but I’m not going to share those numbers with the defendant, his lawyer, and the district attorney at this point in time . . . .” Youmans objected on the grounds that no portion of the note should have been withheld.
Youmans argues that all communications between the jury and the trial court should be made and disclosed in open court. For this principal, Youmans relies on Rogers v. United States , 422 U. S. 35 95 SC 2091, 45 LE2d 1 1975. In that case, the jury sent the trial court a note asking whether the trial court would accept the verdict “guilty as charged with extreme mercy.” Id. at 36. Without informing the defendant, the trial court instructed a marshal to tell the jury that the court’s answer was in the affirmative. Id. Five minutes later, the jury returned a guilty verdict. Id. at 37. The Supreme Court held that the jury’s message should have been answered in open court, and defense counsel given an opportunity to be heard before the trial court responded. Id. at 39. “The orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict.” Citation omitted. Id. at 38. We conclude that Rogers is not applicable here because the trial court read the material contents of the note in open court and did not engage in private communications with the jury. See, e. g., United States v. Brown , 555 F. 2d 407, 426 5th Cir. 1977 distinguishing Rogers on grounds that trial court’s actions did not involve secret reception or reply to jury communications.
