ATTORNEY FOR APPELLANT       ATTORNEYS FOR APPELLEE Stanley L. Campbell               Karen M. Freeman-Wilson Fort Wayne, Indiana               Attorney General of Indiana

                                  Randi E. Froug
                                  Deputy Attorney General
                                  Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



DEATRON LEE                       )
                                        )
      Appellant (Defendant Below),      )
                                        )
      v.                                ) No. 02S00-9905-CR-286
                       ) STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )






                    APPEAL FROM THE ALLEN SUPERIOR COURT
                     The Honorable John F. Surbeck, Jr.
                         Cause No. 02D04-9707-CF-431



                             September 22, 2000


SHEPARD, Chief Justice.


      The claim here is that a juror’s brother attended a very  large  party at which a killing occurred.  We review the law on juror bias  and  conclude the trial court correctly denied a request for a new trial.





                        Facts and Procedural History


      On July 7, 1997, at around 10 p.m.,  appellant  Deatron  Lee  and  his friend Allen Bates went to a private residence in  Fort  Wayne.   Bates  had with him a handgun that he customarily  carried.   About  a  hundred  people were partying and drinking beer in  the  house  and  yard.   Lee  and  Bates socialized for a few hours.

      As the evening progressed, some partygoers began  throwing  beer,  and others attempted to eject them.  A fight  broke  out,  and  Bates  protested that Jason Wallace had “sucker punched” another partygoer  with  a  blow  to the back of the head.  (R. at  450.)   Wallace  overheard  Bates  describing this act as “weak,” and Wallace and Bates began fighting.  (R.  at  450-52.) Bates, during a pause in the action, handed his gun to  Lee  to  hold  while Bates was brawling.


      Several others joined in the fight on Wallace’s  behalf.     Lee  also became engaged in the scuffle.  Lee and  Bates  were  outnumbered,  and  Lee brandished Bates’ gun, ordering everyone to “hold  up”  and/or  “chill  out” and declared, “I ain’t playing.”  (R.  at  457,  535.)   As  Lee  made  this statement, Wallace was standing close by Bates  and  Lee,  facing  the  duo. Lee then shot Wallace in the chest.  After Wallace fell, Bates  kicked  him.
 Wallace died a few days later from the gunshot wound.


      Lee and Bates fled.  When police officers questioned Lee three or four hours after the shooting, Lee claimed that he  left  the  party  before  the shooting occurred.


      A jury found Lee guilty of murder.[1]  The trial court  sentenced  him to fifty-five years in prison.


      After entry of the jury verdict and sentencing, Lee’s counsel filed  a motion to correct  error.   At  a  hearing  on  the  motion,  Lee’s  counsel unsuccessfully sought a new trial based on juror bias.





                             Alleged Juror Bias



      Lee seeks a new trial based on bias he alleges was  held  by  a  juror named Mathis.[2]


      During voir dire, the court  asked  whether  any  of  the  prospective jurors knew  any  of  the  anticipated  witnesses,  or  whether  any  jurors remembered  reading  or  hearing  anything  about  the  case.   One  of  the potential witnesses the court named was Ben Kimmel, who would later  testify that he saw Lee shoot  Wallace.   Several  jurors  spoke  up  about  various potential witnesses, but Thomas “Zack” Mathis did not respond at  that  time to either question.  The court empaneled a jury, including Mathis, and  both parties presented opening arguments.


      The next morning, however, Mathis notified the court via  the  bailiff that he was acquainted with Kimmel.  The court promptly held  a  hearing  at which counsel for both parties  queried  Mathis  about  the  nature  of  his knowledge.


      Mathis indicated that he had not initially  recognized  Kimmel’s  name because Kimmel was a casual acquaintance from school  whom  Mathis  knew  by first name only.  During opening arguments, Mathis had realized that  Kimmel might be someone he knew, and confirmed his suspicion later that evening  by looking at a high school yearbook.  Based upon Mathis’ assertion  that  this acquaintance would  not  affect  his  assessment  of  Kimmel’s  credibility, neither counsel objected to Mathis’ continuation as a juror.


      At the hearing on the motion to correct error,  Lee’s  counsel  called Kimmel as a witness.  Kimmel said he knew both juror  Zack  Mathis  and  one Ben Mathis from school.  He testified that Ben Mathis  (but  not  Zack)  had been at the party where the shooting occurred.   Kimmel  presumed  that  Ben and Zack were brothers because they shared the same  last  name.[3]   Kimmel did not know when Ben Mathis had arrived at the  party,  when  he  left,  or whether he was at the party at the time of the shooting.


      Lee’s only other witness at the hearing  was his trial  attorney,  who stated that he would have requested Zack Mathis be  removed  from  the  jury had this information come to light earlier.  Lee’s counsel did not  subpoena either Zack or Ben Mathis to testify at the  hearing;  instead,  she  argued implied bias based on relationship.  (R. at 995.)  The  court  denied  Lee’s motion based on lack of evidence that juror  Mathis  possessed  any  special knowledge.


      We have come a long way  from  the  time  of  the  Magna  Carta,  when criminal jurors were usually knights who often served on the  accusing  jury as well as the trial jury.  See Lloyd E. Moore, The Jury:   Tool  of  Kings, Palladium of Liberty 56 (1973).  Today’s jury practices strive to honor  the true spirit of the concept of an impartial jury of one’s peers.   As  Samuel Spencer of North Carolina said in 1788, “Juries are called the  bulwarks  of our rights and liberties; and no country can ever be  enslaved  as  long  as those cases which affect their lives and property  are  to  be  decided,  in great measure, by the consent  of  12  honest,  disinterested  men.”[4]   J. Kendall Few, The American Jury Trial Foundation,  In  Defense  of  Trial  By Jury 242 (1993).


      As recognized in Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988),  a defendant who proves that a juror lied on voir dire or  was  biased  against the defendant is entitled to a new  trial,  upon  demonstrating  both  gross misconduct and probable  harm.   Determinations  of  juror  misconduct  fall within the trial court’s discretionary authority.  Id.


      Here, Lee has not shown that juror Mathis lied during voir  dire.   In fact, when Mathis realized after opening  arguments  that  he  was  casually acquainted with a witness, he  promptly  notified  the  court.   Mathis  was sufficiently forthcoming during questioning  that  neither  party  requested his removal.  Thus, if Lee has a sustainable claim,  it  must  rest  upon  a showing of bias.


      One way that a litigant may prove bias is by presenting evidence of an out-of-court communication by a juror.  Timm  v.  State,  644  N.E.2d  1235, 1237 (Ind. 1994).  Such a communication raises a rebuttable  presumption  of bias in order to protect the essential safeguard of  jury  neutrality.   Id. Again,  however,  Lee  has  offered   no   proof   that   any   out-of-court communication actually took place.


      Lee’s argument of bias therefore rests entirely on  Mathis’  fraternal relationship to someone who was at the party.  The mere  existence  of  this relationship, he asserts, implies bias  and  therefore  justifies  reversal. (Appellant’s Br. at 11-12.)


      Lee is correct that a juror’s bias may arise  by  inference  when  the juror has some connection to the case.  Threats v. State,  582  N.E.2d  396, 398 (Ind. Ct. App. 1991).  A trial court should analyze such potential  bias by considering  the  nature  of  the  connection,  and  any  indications  of partiality.  Id.  The trial court “must weigh the nature and extent  of  the relationship versus the ability of the juror to remain impartial.”   McCants v. State, 686 N.E.2d 1281, 1284-85 (Ind. 1997) (citing Threats,  582  N.E.2d at 398).


      Here,  any  connection  by  juror  Mathis  to  the  case   is   purely speculative.  Lee seeks a new trial because Mathis’  brother,  who  was  not called as a witness, may have been at the party when the  shooting  occurred and the two may have discussed the shooting.   (Appellant’s Br.  at  11-12.) When Lee’s counsel was asked at the hearing on the motion to  correct  error why she had not subpoenaed the brother to testify, she replied that she  did not want to put a witness on the stand if she  did  not  know  what  he  was going to say.  (R. at 995.)  Conjecture of this sort falls far  short  of  a prima facie  case  of  bias,  much  less  the  requisite  showing  of  gross misconduct and probable harm required for reversal.


      The trial court properly denied Lee’s motion for a new trial.





                         Sufficiency of the Evidence



      Lee also asserts that the evidence presented at trial was insufficient to  sustain  a  conviction.   He  specifically  cites   certain   eyewitness statements that do not support his guilt.    Witness Matt  Moriarity  stated definitely, and witness Neal Peppler stated equivocally,  that  the  shooter was wearing dark pants, although Lee wore white shorts to the party.


      In a roughly similar vein, Lee points to the testimony of Nick Fuller.
 Fuller  stated during his deposition that the same person who shot  Wallace also kicked Wallace.  He expressed uncertainty at the trial.


      Inconsistencies in identification testimony go to the weight  of  that testimony; it is the  jury’s  task  to  determine  the  credibility  of  the various witnesses and of the evidence presented.  See Parsley v. State,  557 N.E.2d 1331, 1335 (Ind. 1990).   This  Court  looks  to  the  evidence  most favorable  to  the  verdict  along  with  the  reasonable  inferences  drawn therefrom that support the jury’s verdict.  Blackmon v.  State,  455  N.E.2d 586, 590 (Ind. 1983).


      Here, the State presented  testimony  by  several  eyewitnesses.   Ben Kimmel, who had known Lee for at least six months prior to  the  party,  saw the shooting and unequivocally identified Lee as the  killer.   Lee’s  long- time friend Allen Bates testified that he  saw  Lee  pull  the  gun,  looked away, heard a gunshot fired from the area where  Lee  was  standing,  looked back, and saw Lee still holding the gun.  Both  Mike  Quintanilla  and  Nick Fuller were briefly introduced to Lee at the party, and later saw Lee  shoot Wallace.


      Without pausing to mention the details of testimony  given  by  others who attended the party, we count at  least  seven  different  witnesses  who either specifically identified Lee as  the  shooter,  or  gave  descriptions that matched Lee’s appearance in most respects.   This  evidence  goes  well beyond the requisite minimum of probative evidence from which  a  reasonable trier of fact could infer guilt beyond a reasonable doubt.





                         Jury Instruction on Intent


      Lee claims error in a court  instruction  on  intent  (“law  does  not require a direct statement of intent to kill,” etc.).  To preserve  a  claim of instruction error, a party must object  to  the  instruction  before  the jury retires to deliberate, and must clearly state the  nature  and  grounds of the objection.  Ind. Trial Rule 51(C); see also  Scisney  v.  State,  701 N.E.2d 847 (Ind. 1998).  Because  Lee  did  not  object  to  the  challenged instruction, this claim is not preserved.  T.R. 51(C).







                                 Conclusion


      We affirm the judgment of the trial court in all respects.




Dickson, Sullivan, Boehm, and Rucker, JJ., concur. ----------------------- [1] Ind. Code Ann. § 35-42-1-1 (West 1998). [2] Lee cites as primary authority McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984).  In McDonough, a products liability case, a juror failed to disclose during voir dire that he had a son who had suffered a severe product-related injury.  Id. at 551.  The Court recognized the importance of finality of judgments and of conserving judicial resources, and held that “to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for challenge for cause.”  Id. at 555-56.  Justice Rehnquist wrote the McDonough opinion for a four-justice plurality.  Justice Blackmun, joined by Justices Stevens and O’Connor, concurred in the opinion but emphasized that regardless of whether a juror answered honestly or dishonestly, the trial court has the discretion to conduct a post-trial hearing on the issue of actual juror bias or, “in exceptional circumstances, that the facts are such that bias is to be inferred.”  Id. at 556-57 (Blackmun, J., concurring).  This analysis is consistent with that which has been applied by Indiana courts, as discussed herein. [3] The trial court entered a finding of fact that Zack and Ben Mathis are brothers.  (R. at 148.)  Because a lack of fraternal relationship would not affect our conclusion, we will presume that relationship for purposes of analysis. [4] Obviously, juries are more inclusive today than they were in 1788, as our society strives to do better justice.