Decker v. State

findings of fact establish However, the Beemer’s com- three-fourths over products sales of from resulted

missions ordered, shipped en- made, were supports record The Indiana.

tirely outside findings. The trial court court’s

the trial for- the state was concluded

properly those sales which from tax income

bidden to is, out-of-state, inter- made

were Nonetheless, Beemer was commerce.

state it re- commissions tax on for income

liable Indiana. made within sales

ceived from apportioned1 correctly court

The The activities. to its local tax

Beemer’s income tax gross a 2% imposed

trial court commissions of Beemer’s portion in Indiana. sales made from

which resulted is reasonable. a result

Such hereby trial court is judgment

affirmed. HOFFMAN, J., J.,

GARRARD, P.

concur. DECKER, Appellant Eugene

Conrad Below),

(Defendant Indiana, Appellee

STATE Below).

(Plaintiff

No. 2-877-A-331. Indiana, Appeals of District.

Fourth 5, 1979.

March 17, 1979. April

Rehearing Denied provided brief, activities in this state the tax is Dept, itself states In of Revenue its apportioned to local related activities. that a taxpayer may legally Indiana “state tax an result of his as a for income realized him At trial all four appellant. Dormans identified the Glass, Indianapolis, Carol as the Defendant robber. Sendak, Atty. Gen. of Indi- L. Theodore , Atty. McKenney, Deputy K. ana, appeal argues the Defendant the fol- Dennis On Indiana, appellee. Indianapolis, for lowing issues in his Brief: Gen. overruling 1. Did the trial court err in MILLER, Judge. suppress the Defendant’s motion to the in- 4, 1977, con- March On court of the Defendant identification robbery1 as an included offense

victed eyewitnesses to crime for the reason 35-12-1-1,2 by jury. On after a trial IC procedure pretrial identification 23,1977, was sentence the Defendant March suggestive? impermissibly less than term of not an indeterminate overruling court Did the trial err in twenty-five nor more than (10) years ten by Defendant’s counsel to withdraw motion Thereafter, ini- the Defendant (25) years. appearance? his appeal. tiated sup- there sufficient evidence to 3. Was affirm. We verdict? jury’s port 26, June disclosed that on The evidence trial court 4. Did the abuse its discretion the De- 1976, 9:30 P.M. approximately allowing continue delibera- a store located grocery entered fendant being that tions after notified and 30th the intersection of Street near they impasse? had reached Indiana, known as Indianapolis, Emerson giving in- 5. Did the trial court err in incorpo- which was Roy’s Market Wiles and numbered 5 5A which dealt structions and Dormas, in the State Indiana rated with the law of reasonable doubt? Dor- in the store were Charles Present Inc. business, daugh- his man, of the part-owner Did the trial court err in its instruc- 6. Dorman, 13, daughter his age the con- ter Sandra tion numbered 19 dealt with Dorman, 20, Gary age nephew a possible and of Defend- cept Connie reduction Dorman, was in age 16. Charles Dorman good for time confine- ant’s sentence after store, Connie in the front of the the office ment. cash sacking at the groceries was

Dorman Did the trial court’s communication 7. standing ap- Gary Dorman was register, and with the outside the register feet the cash ten from proximately knowledge and without the of Defendant Dor- and Sandra front of store at the counsel and after deliberations defense register at the working the cash man commenced, error? constitute fundamental ap- store. The Defendant of the front change for and asked Sandra proached ONE: ISSUE he said machine and then cigarette suggestive pretrial Impermissibly money in the cash rest of the wanted identification. gun he had a register. Sandra noticed arrays displayed to Photographic her were called for pants. his Sandra tucked De- trial. and each of the four witnesses before register cash who came father pretrial Suppress a Motion to she was fendant filed her that advised father Sandra De- of the gun a Evidence of identification The held up. held being by the wit- which had been made removed fendant while Dorman Sandra on Charles for the motion were nesses. Grounds approximately the amount of money in- sug- impermissibly had been procedure of food the quantity and an unknown $113.00 identifying witnesses in that gave gestive and register from the cash stamps been suspect that a had made aware Defendant were to the Defendant. them among photograph arrested and left. and out of store backed Repealed. ver- 4-6, 35-42-5-1 for current Repealed. 2. See IC IC 35^42-5-1 See IC 35-13 — sion. version. for current displayed person to them that two of the who those committed the crime. The were aware other Defendant, witnesses two cases cited Vicory v. suspect had selected from the (1974), 376, witnesses 262 Ind. viewed.

group Bowen v. State 263 Ind. Sawyer N.E.2d 691 hearing Defendant’s pretrial A on Motion where the identifi- and the Suppress was conducted sub- procedures cation suggestive were are testimony revealed that a stance therefore not applicable. displayed group twenty police officer subjects similar to the photographs de- Furthermore, Pop- our Court in to Charles scription of the robber and San- plewell 381 N.E.2d 79 three days Dorman two or after the dra stated that where an officer presenting pre- robbery; separated that the officer Charles. trial photographic identification in- displays he Dorman before showed them and Sandra dicates suspect’s that the photograph is in- photographs; gallery numbers cluded the “. rule is . . that convic- physical descriptions photo- on the tions based eyewitness identification at witnesses; were concealed from the graphs pre-trial trial following identification immediately that Charles Dorman selected photograph will be set aside on ground photograph and identified only if the photographic pro- identification robber, viewing as the that when him cedure was so impermissibly suggestive as group same as her photographs fa- give very rise to a substantial likelihood ther, Dorman indicated that the De- Sandra of irreparable (empha- misidentification.” person like the photograph fendant’s looked added) sis robbery who had committed the but she The record indicates that the four Dor- just say seeing couldn’t for sure without mans were eyewitnesses to the crime and as during person. him in the month Sometime such independent had sufficient for basis displayed officer July police the same the their in-court identification. Cooper v. group photographs, taking the same Ind., State 359 They N.E.2d 532. to precautions, same aforementioned Connie ample had opportunity to observe and iden- Gary separately Dorman and each inde- tify the robber. The store was well lit and photo- selected pendently the the Charles, robber wore no mask. Sandra graph and him as the identified robber. and Connie regis- Dorman were at the cash pretrial The trial court found the ter Gary standing Dorman was approx- photographic procedure identification was imately away ten feet while robbery the impermissibly suggestive overruled progress. was in At trial each of the four .Suppress. Defendant’s Motion to Dormans the identified Defendant as the appeal On asserts that the Defendant the robber. Under these circumstances we con- overruling trial court erred in Motion to clude that photographic the identification Suppress four witnesses and that the had procedure was not impermissibly sugges- independent an insufficient basis for the tive, eyewitnesses that the four to the crime in-court for the reason that identification had a independent sufficient basis the for pretrial procedure the was identification in-court identification and that there was impermissibly suggestive. no likelihood of misidentification. findWe There is in the record to no evidence no error in the trial court’s overruling of indicate that the informed or sug officer Suppress Defendant’s Motion to the in- to to gested any of the witnesses the crime court identification of the Defendant. one of photographs photo Furthermore, of a graphic array person was that who had posed objection no charged been arrested and with the to crime. the in-court identification made singled any Hence, Neither was the Defendant out of the four Dormans. even strong suggestion the authorities nor if the photographic displays had been made to of the he impermissibly suggestive witnesses that was or the Dormans hearing motion, independent conducted the said basis cross- have a sufficient did not of the De- in-court identification examined the witnesses some de- their State’s preserve fendant, the Defendant failed during trial, called tail and examined six proper be a ob- since there must error witnesses and in- defense submitted the time evidence offered jection made at to the court. We find structions that the appeal. error for preserve order support record does not Defendant’s asser- Ind., v. Lagenour incompetent represen- tion of ineffective (1978), Ind.App., Carpenter tation. N.E.2d 908. THREE: ISSUE TWO: ISSUE Sufficiency of the Evidence. appearance. Motion to withdraw states that The Defendant next The Defendant next claims that the evi- overruling mo erred in trial court dence is insufficient to De- prove as Defend Rogers of Alex withdraw tion Dorman, took from fendant Sandra $113.00 al claiming there was an attorney, ant’s Dormas, Inc., was property all representa Rogers’ conflict between leged Information, charged that the the Defendant’s of the Defendant and tion to show it evidence was insufficient no can find evidence interest. This Court the Defendant who committed the rob- proceed conflict in the record of such bery. ings. determining The standard of review in 24, 1976, when this action September On sufficiency evidence set out initiated, appointed as Merle Rose was Faust represent the Defendant. defender to public page 366 N.E.2d 175 at 176 as follows: Rogers Alex entered October On reviewing “When sufficiency of behalf of the Defendant. appearance on evidence, not weigh this Court does 1, 1977,Rogers filed a motion February On credibility evidence or review the appearance for Defend- withdraw his witnesses; only we consider the evidence by Rogers for only given The reason ant. verdict, together most favorable to the De- withdraw was that the request his to the with reasonable inferences to be as pay Rogers unable to was fendant drawn therefrom. The conviction will be Rogers suggested In motion agreed. his affirmed, is if there substantial evidence pauper reappoint coun- the trial court probative of value from which trier of Rogers’ court denied motion sel. reasonably could infer the fact defend- Merle Rose as co-counsel. reappointed and guilt beyond ant’s a reasonable doubt. inter- claims a conflict of The Defendant Ind., (1976), Daniels v. 346 N.E.2d Rogers record attorney but the est with 566.” or any preju- such conflict not disclose does to The evidence most favorable the State is to If the Defendant dice Defendant. reveals Dorman at time of Sandra challenging Rogers’ competen- regarded as robbery working register was the cash note representation, we adequacy of cy Defendant, gun, when the armed with a presumed that counsel general rule money. personally gave the demanded She strong absence of and competent in the “bills, stamps change.” Defendant food contrary. to Cush convincing evidence Dorman, Market, Roy’s 643; Charles co-owner of Ind., (1978), v. State man money testified as to the amount of taken further, prevails unless presumption He further testified that robbery. that counsel made there evidence Roy’s incorporated Market was under mockery Cotting justice. of proceedings a Dormas, Incorporated and that the Ind., name (1978), 379 N.E.2d 984. ham corporation duly incorporated to do Defendant, filed was counsel On behalf He of Indiana. Suppress. business of Alibi and Motion to State Notice 198 Dorman, Dorman, value, (4) Connie article of Sandra violence

Charles Dorman, putting [2, Gary who were fear. Jones v. Dorman and 3.] Ind., (1970), the time of the N.E.2d 538. in the store present robbery, identified Defendant as the all Appellant first contends there was a robber. failure of proof as to who owned the what he wanted. fendant what his money taken ment allegation in the Information and the evi dence. no variance Charles Dorman Dorman front of Sandra Dorman told his now called money in the cash asked daughter money from the cash owner, 477, 275 N.E.2d 538. argues is not well her father to from the him what she should do. Charles When as who, Riley a cashier and was in Sandra in this Jackson as an he wanted. The Defendant Dorman and demanded the since Charles Dorman told person daughter register, lawful taken. The Defendant’s employee the cash respect property gave give the Defendant register. possession Sandra It was the Defendant possession between the give register appeared taken agent We find Dorman the De Sandra argu was from the circumstances of this case that the service station attendant was in law ful of the owner and that fied he property. the fact that the attendant this element of the robbed must be the actual owner of the The statute does not state that lant therefore See 77 held sufficient. Here the attendant service station hold-up, en. a situation contention was denied. ^[255] owner of the money. The affidavit possession taken from the money belonged However, ownership Ind. was an C.J.S. [260], It is quite money of that Robbery asserts this must be Thomason v. State employee sufficient fob could similar to this and the crime if the to his employer was was, person money clearly and, It also involved a § stated who the of the owner so and the testified that possession in that as the agent be inferred. of another. purposes It property involved is clear person appel prov testi case, the money superior allegation

The Defendant’s that he that of the Nothing robber. more was perpe necessary.” insufficiently identified robbery trator of the is without merit Thus, in the case at bar where the money positive identification of four view of the possession was taken from the lawful robbery. eyewitnesses to the alleged, Sandra Dorman as it was not nec- essary prove the actual ownership of the contends Lastly, Defendant money. Dormas, prove that Inc. was State failed to alleged in money the owner of the taken as ISSUE FOUR: the The same contention was Information. jury Mistrial impasse. rejected by our Jackson stated: supra, v. where the Court The Defendant contends that the trial court abused its by declaring discretion not appellant

“The under which statute a mistrial jury when the indicated it had convicted, (Ind. IC 35-13-4-6 impasse reached an and that the record 4101, reads as follows: Ann.Stat. § 10— indicates may that the verdict have been person takes from the of an- ‘Whoever coerced. any by other article of value violence fear, by guilty robbery, is putting in portion The upon the record which the imprisoned and on conviction shall be not Defendant bases his appear- claim is a note (10) years less than ten nor more than ing in the record which reads as follows: ’ twenty-five (25) . . . years, “We feel that we thoroughly have dis- “Thus, case, the elements for the material cussed the depth considered in .all robbery (1) possible points, crime of are an unlawful tak- have re-listened to select- another, ing, (2) (3) from ed person the and there has testimony been no 1, 2 It is our instructions numbered and 3: ballot. tendered first change since the concept an im- with we have reached The instructions dealt the that consensus change anticipate were as follows: we cannot reasonable doubt and passe and vote. the Price, Foreman” U. /s/ Instruction 5: State’s rule in Indiana is general The pre- “The in this case is defendant for delibera permitted of time length the innocent of the commission sumed to be trial largely within the jury is crime, any presumption tion and this re- Thus, not conviction will discretion. during court’s trial. The mains de- .entire it is jury reports when the reversed present not to required any fendant is verdict, to is directed reach a unable It is prove evidence or his innocence. later and a verdict is further deliberate prove guilt, burden State’s has trial court abused unless the returned should be convicted defendant unless record indicates its discretion all twelve members of the are con- Cade may have been coerced. the verdict guilt beyond vinced of his a reasonable 394; Ind., Ayad Therefore, you if have a reasona- doubt. 430, 261 N.E.2d (1970), 254 guilt, ble doubt as to the defendant’s not guilty. defendant should be found ap Although question note in of innocence is not presumption order and there the record pears in anyone to aid who is fact intended on March it was “filed” showing entry book escape punish- guilty of a crime to from cause was submitted 4, 1977, day ment, provision of but is a humane returned, verdict there and the against to guard law which is intended us to indicate before in the record nothing any person being innocent danger received, inif note was what time the convicted.” judge, by the trial actually seen fact it was thereon, or was held hearing whether Instruction 5A: State’s action, was taken any, if

what information, we are in Absent this court. “A is doubt that is reasonable doubt court, in some position to no rule sense. It upon based reason and common that the its discretion or way, abused may arise reasonably is one which from De reaching its verdict. was coerced evidence, of evidence or from lack produce in his burden has failed fendant It or from a conflict evidence. supports his to this Court a record guilt, are uncertain of or if you exists if Misenheimer v. State of error. allegation speculate only guess or as to you can Smith guilt. Ind., 368 N.E.2d 1154.3 hand, other reasonable doubt is On the to an proof not created a lack FIVE: ISSUE rarely possi- certainty, for this is absolute instructions. Reasonable doubt does it arise from mere ble. Nor from of error or mistake or possibility giving alleges error The Defendant doubt, you may fact find some be- numbered 5 instructions of the State’s activity always there cause in human rejecting the error in 5A and Again, rect the record is silent as in the Errors. of the statement not unmindful areWe by phrase jury what the meant “re-listened jury’s . . . have re-listened that “we note Defendant, testimony” re- testimony nor does the record to selected . . . to selected any per- Brief, presumed proceeding argues wherein the veal that “it must in his Thus, portions re-listening of the improper selected testi- mitted to hear evidence. of that this say place nor we mony of we coerced are outside the cannot took obviously might knowledge or his have been of defendant what able review without argues a See au- this was factor even fundamental error. He reversible or counsel”. opinion. this as coercing assert of verdict but does not Seven thorities under Issue to Cor- separate Motion a error in Brief or possibility of error or exists the mere Defendant’s Tendered Instruction No. 3: mistake, may always find some you you if look it. doubt “A reasonable doubt the word im- plies may is such a doubt as arise from guilt beyond may find a reasona- You evidence, or from lack of evi- of the evidence if you ble doubt from all dence, evidence, or from a in the conflict Defendant did are convinced concerning given a fact or issue. The probably rather than commit crime touching rule of upon law reasonable did; truly you are convinced of the If practical doubt is a rule for guidance only rather than some- guilt Defendant’s practical men and women when en- convinced; you If are what convinced to gaged in duty this solemn of assisting in certainty rather than reasonably only a justice. administration It is not you are not fairly certain. If so con- therefore a rule about there is any- Defendant, guilt thing of the then imaginary. vinced of the whimsical or It is not a mere error or possibility or mistake that you should return verdict of Not doubt, constitutes reasonable for despite Guilty.” every precaution may be taken to prevent it, may there be in all matters Tendered Defendant’s pertaining affairs, pos- human mere Instruction No. 1: sibility of error. The rule of law touch- ing reasonable can doubt be and is thus presumed “The to be inno- defendant stated for your guidance. any cent of the commission crime and you, If you and each of are so con- innocent of the presumed to be offense evidence, vinced and considering any offense charged in the information circumstances, all the facts and and evi- embraced, presumption and this therein dence as a guilt whole of the throughout step by continues defendant, prudent that as men and reconcile the step. You should evidence women feel you would safe to upon act theory of the inno- upon this case such conviction in a manner of the high- defendant, if cence it can reason- importance est concern and to your own done, consistently be ably and and there important dearest interests, and most where there compulsion was no of the defendant or coer- should be no conviction upon all, cion you to you act then will of the unless each member is con- degree have attained such of certainty as beyond vinced a reasonable doubt of his excludes reasonable doubt and authorizes guilt. contemplates and The law indeed conviction you of the defendant. If are twelve minds demands a concurrence'of not so all convinced the facts and the accused is conclusion circumstances, whole, and evidence as a long as guilty, you, any you, and so guilt defendant, of the you should have or entertain reasonable doubt as acquit him.” defendant, guilt you to the should his argument Defendant bases on the in his resolve that doubt favor and he Toliver v. State opinion of this Court should not be convicted.” (1976), Ind.App., 355 N.E.2d 856 in which this Court reversed the trial court and held it was error to refuse instruction con- Tendered taining the language identical of Defend- No. Instruction 2: ant’s Tendered Instruction No. 3 which in- ap- “The reasonable doctrine of doubt structed the jury degree as to the of cer- facts, plies well as to to the law as tainty required prove reasonable doubt. established or not established the evi- However, transfer, the Supreme Court dence, give you should the defendant in Toliver the benefit of reasonable you doubt 452 reversed this affirmed the may law.” trial have as to the court’s decision that a reasonable 452; a Resnover v. specific not include need instruction doubt degree juror certainty of to the reference stating Givan as fol- Chief Justice

required, lows: ISSUE SIX: whether an ade- issue on transfer is “The Good time instruction. re- on reasonable doubt instruction quate that Defendant claims the trial specifically instructing language quires giving court erred in an instruction con degree certainty the of jury as to the possible cerning length reductions of appellant’s It is necessary for conviction. the might a sentence which re right supple- that he has a contention by after fixed jury. ceive the sentence is the in- the court’s reasonable doubt ment entirety The instruction reads in its as fol fo- an instruction which struction with lows: re- degree certainty of upon the cused person “A who is convicted of a crime It is reasonable doubt. quired to remove by Judge. a In by is sentenced that the instruction contention

the State’s many Judge has sen- a cases certain potential creating of had a tendered tencing may alternatives which include than our law proof standard greater restitution, sentences, probation, was an erroneous short re- requires, and therefore should have In programs, of law which not habilitation etc. other cases statement grant We trans- given jury. to the requires Judge been the law to sentence to affirm decision fer and imprisonment a term of is either law, court. by by Jury. fixed or set Bu Appeals, Judge In the Court person “A who is impris- sentenced to dissenting opinion where chanan wrote a by less life is onment for than entitled that the trial correctly points out in he upon law to reduction his time based 3P covered preliminary instruction court’s a certain his upon schedule and behavior doubt and definition reasonable given in the institution. Also he is credit necessity to the as instructed spent jail time toward his sentence for reasonable doubt. finding guilt beyond a For these it is charge. reasons correctly point Judge further Buchanan possible person could serve consid- by instruction out that the tendered ed erably less than stated sentence. On used the word erroneously appellant hand, possible the other it is also that a doing, the burden of ‘certainty’. By so In person could serve the full maximum. changed convey subtly proof it is future either case determined guilt must shown impression that present knowledge events our beyond doubt, certainty beyond all absolute control. a reasonable by beyond rather than verdict, “Therefore, your arriving that the trial therefore hold doubt. We you speculate not consider or as should refusing to de give err in court did not person will the actual amount of time doubt instruction fendant’s reasonable serve.” its was ade substance the reason object giv- did to the The Defendant instructions other quately covered trial, he ing of this instruction at nor did Vacendak v. State given. were pose giving instruction as error 101, N.E.2d Sar (1976),264 Ind. Motion to Correct Errors. The Defend- 252, 263 (1970), 255 Ind. geant in his but concedes as much Brief ant N.E.2d 525.” argues giving that the nevertheless Therefore, foregoing based on fundamental error. instruction constitutes properly the trial court authority we find Admittedly, Feggins doubt. to reasonable instructed our 265 Ind. re properly were instructions giving held of such instruc- the Court was covered as their substance fused matter of actual supra, tion error unless Toliver v. given. 'instructions juror questioned by ically time served was as to toy gun. or real Is there interjected during the course inadvertently data, of supporting kind reasonable sup- the trial. porting data identify gun whether the is real or toy? However, Cooper Well, 359 N.E.2d 532 the you’ll just “Court: have to do the impro- held that the defendant waived the you best can with the evidence that was being same instruction priety given presented. But it proved must be that it of his failure to include it in his reason was a gun beyond real a reasonable Motion to Correct Errors. The Court stated doubt, you if have a reasonable doubt as was, fact, that “If the instruction errone- not, whether it was a real gun or then ous, it, nevertheless, does not rise to ‘sub- proof, that’s the failure of words, in other warranting stantial error’ us in going be- there cannot be an armed robbery with a litigating waiver hind a that which toy gun. satisfy Does that Jury litigated could and should have been be- subject? O.K. Redeliberate.” low.” Defendant did not move for a mistrial at Thus, in the case at bar this issue has request that time nor did he hearing been waived. determine what had occurred an hour be- fore. Outside of the remarks referred to ISSUE SEVEN: nothing above there is in the record to shed with the Communication outside the light upon further the substance or mode of Defendant. judge’s prior communication with the During deliberation the court jury, is, precise words used in the question. was notified that the had a communication, whether the communication following proceeding open occurred in written, was oral or or whether it was com- the Defendant and court with his counsel municated via the bailiff or directly by the present: Therefore, judge. trial only Court can ago, I “Court: About hour received a alleged examine the misconduct as it ap- question Jury, from the in substance pears in the record. It apparent is from the necessary it was asked whether judge’s that, remarks pres- outside the real, gun gun opposed used be a real as to ence of the counsel, Defendant and his toy gun in order to constitute armed jury asked whether it was necessary the robbery, and I an answer say- sent back gun be real in order to constitute an armed ing yes, answer, you received that robbery and the court answered affirma- right you’ve All then right. ? Since sent tively. me, actually question in it’s one sort of In his Brief the Defendant acknowledges

just remarks, prepatory two and the having neglected to raise the matter of third, question or substance of this the communication in his Motion to Correct requirements proof, what are the who preserve Errors he failed to the error for Foreman, you’re is the what ask- is that appeal suggests but reviewing that a court ing, requirements proof? what are the may questions consider raised for the first determining “Foreman : In whether it’s appeal time on necessary if to serve the gun a real or not. justice ends of substantial prevent or to requirements proof “Court: O.K. The denial of fundamental rights. Winston v. all charge to material elements of the (1975), Ind.App., doubt, them, beyond a reasonable all of Bennett v. State 159 Ind.App. fear, putting I went take over from 304 N.E.2d 827. person, money, age over the of six- teen, dangerous deadly armed with a Defendant contends that the trial court’s weapon. communication with jury, which con- question “Foreman : rights That’s not Your cerned the substantial of the Defend- question Honor. The ant specif- place directed and which took pres- outside the Furthermore, that, Defendant, him we right the have held when the denied of ence constituting irregu- facts misconduct rights and his impartial a fair and to jury’s larities the deliberations are law and hence constitutes process of to due to question shown sufficient raise a of requires reversal error fundamental as to impartiality doubt the fairness and trial. new conviction of his verdict, as to the deliberations prejudice may conclusively presumed.” be question not the constitu doWe right be to basis of tional However, the doctrine of conclusive every stage “at of in the courtroom present presumption prejudice of when there is presence the of the requiring jury communication with the proceedings outside the presence of the has been (1967), express Ind. defendant v. State 249 jury.” Harris the ly presumption such overruled and can be 804; 800, Deming 681, v. State error rebutted the held to be harmless. 51; 282, 133 235 N.E.2d Consti Ind. (1956), State, Thus, supra. Harris v. in Foster v. Indiana, Article 1 13.4 § tution (1977), Ind., 1088, State 367 jury N.E.2d the judge the trial Deming, supra, where In inquiry judge made written to the concern bailiff, the outside conveyed jury to the via ing their consideration of the evidence and defendant, the information presence of the replied writing the trial court and in the pa- chance for the defendant’s regarding absence the defendant that: role, our Court stated: questions. “The Ct. cannot answer these in numerous decisions courts “[0]ur solely must be Your verdict based on the followed rule established and the have presented in evidence this trial.” judge all from the communications Prentice, speaking Justice for our Supreme to the substantive jury pertaining to Court, held: merely and not defendant rights “The defendant complains that requirements of the physical with the jury with the was reversi- communication court, in the jury, open must be made in error, ble since it occurred without his knowledge within the presence, or Miles presence. upon He relies v. State so that ac- his counsel accused and 312, 779; (1944), 222 53 Dean Ind. N.E.2d deprived of his to right be may cused not 568, (1955), 234 130 v. State Ind. N.E.2d thereto, for except or ask additional (1956), Deming 126 and v. State 235 Ind. reason additional mat- by instructions 282, 133 51. N.E.2d (1856), 7 Hogg v. State ters considered. recognized Both Miles and Dean a de- 551; (1859), v. 12 Ind. Ind. Fish Smith right fendant’s constitutional to be 340, 563; (1887), v. 111 Ind. Roberts stages pro- present all criminal 500; (1892), 130 Quinn v. 12 N.E. . I, ceeding, Article 13 of the under Section 340, 300; v. Danes Pearson 30 N.E. Ind. Indiana Constitution and that reversible 976; 465, 6 33 N.E. Cool (1892), Ind.App. presumed from his ab- error would be 503, N.E. (1904), 163 Ind. 72 man Deming, upon more sence. focused Cir., States, 568; 10 Fina v. United jury nature the communication 46 F.2d Miles might upon and the effect it have had 312, 779. also deliberation, upon See 222 fair rather than a de- Ind., (1955), 130 N.E.2d be right present fendant’s absolute Dean place. In when the communication took . . . except 35-1-28-1, charge, repealed, provided: “No the sworn officer they to ask if now IC4. punishable upon prosecuted any person by have a verdict or order of for offense reached However, death, upon request prison the court. in the state confinement disagreement county personally jail, there between as to open unless when part court, them shall tried may, testimony, judge present during This statute 1978. Acts trial.” repealed and in the of the defendant and March effective attorney, jurors (civil) to rehear testimo- allow 3555. Also IC 34-1-21-4 P.L. Section ny, any (criminal) prohibit com- Harris v. State and IC 35-1-37-4 munication with jury, citing deliberating 34-1-21-6. even the Court IC again Deming, jury’s the court answered to search for the form concerning defendant’s judge was certain the question necessary forms had us, case before parole. In the and, further, chance provided been they any if had defendant does assert questions regarding the form of their ver- of the court’s communication to substance they dict or other matter should return Rather, he relies improper. open court. being per se reversible. upon the error as hand, On the other our Courts have not 681, (1967), 249 Ind. In Harris v. State protect hesitated to the of sanctity jury State, 800, supra, N.E.2d Dean v. was 231 deliberations when such communications do that it expressly overruled insofar held rights affect the substantive of the accused. jury in the de- to the communications Thus, been held it has to be error reversible per absence to be se reversible fendant’s for the to discuss “good bailiff the effect of the inference We there held that error. sentence, time” a life on Turner v. State prejudice arising deprivation from the of 91, 825; (1970), 254 Ind. 257 N.E.2d for the right to be of defendant’s constitutional explain forms, bailiff to the verdict Laine v. at trial could be present stages all of his (1972), 81, 154 Ind.App. State 289 N.E.2d to be harm- and the error held rebutted 141, for the bailiff explain to discuss and appar- to the less. Defendant has alluded “disfranchisement”, Sparks (1972), v. State having difficulty jury the with ent 681, Ind.App. 154 290 N.E.2d 793 indicated credibility question, as the to judge jurors the further instruct the. having interrogatory, partic- some the as during their deliberations in the absence of significance in the determination ular defendant, the Dean (1955), 234 However, issue. he has not disclosed this 568, 126; Ind. 130 N.E.2d Miles v. State judge’s response could have us how to (1944), 312, 222 Ind. 53 N.E.2d 779. See conceivably upon borne the issue. It is Deming, supra, also v. Jackson State innocuous re- imagine to a more difficult (1978), Ind.App., 1242, where the sponse, hesitancy say- and we have no contents of two notes from the to ing judge that the communication was harm- therefore, less, and, unknown beyond jury preju- a reasonable doubt.” were presumed. dice was proposition support Numerous cases jury outside communications with the reviewing After foregoing both the not presence of the defendant do authorities and the judge actions of the of the defend- rights the substantive affect case, we conclude that the court’s com to the jury’s or involve matters relevant ant ments outside the of the Defend harmless may deliberation be deemed prejudicial ant were and would constitute not constitute reversible error. Gann v. do reversible error if the issue were properly 88, (1975), 297, 263 Ind. State court, effect, before us. was at bailiff, direction, (the merely at the court’s to tempting define deadly the nature of a deliberation). jury to continue told weapon, which information must (1974), 59, v. 262 Ind. 312 Frasier State subject of a formal written instruction. 77, (the the jury bailiff told N.E.2d relayed The information to jury sentencing judge when the up to the clearly pertained court to the substantive had jury asked whether sentences would rights Defendant and certainly were consecutively concurrently). Lam- run references to matters 303, very which were rele Ind.App. v. 306 bert 159 115, vant to the denied, deliberation. In this re (the may trans. bailiff N.E.2d gard, good it matters not that the “wind it court had they have asked if could nor that get possible”). as intentions were up it over as soon instructions correct and favorable to also Conrad v. Tomlinson 258 the Defendant. See may These factors tend explain where the the na N.E.2d thought they form and ture and circumstances of the con improper had lost verdict bailiff, direction, told the tact do following the court’s but not correct it. The error, Sharp v. “Unless there fundamental in Laine a De Judge language appropriate: particularly supra, gamble fendant cannot be allowed to pro- here Bailiff possibility “The affidavit of a favorable verdict kind of record what precisely the vides objection sitting by, making no idly during delib- jury room transpired in the prejudicial, matters he considers and then not provided that was erations attempt to assert those matters error Under v. situation. Tomlinson Conrad after disposition an unfavorable of his presumed it will be v. Tomlinson Conrad (1978), Ind., case. Blow if harm the irregularity causes such Stein Ind. In this the explained. irregularity is App., 334 N.W.2d 700.” good explanation boils down only is not the Bailiff. Such intentions of urges Defendant now the er irregulari- unexplained an enough. Such and, alleged therefore, ror is fundamental con- in the reversal ty must result exception requiring to the rules timely question purity do not viction. We objection during trial prerequisite as a members the Bailiff or the motives of appellate consideration of the issue at the However, this case. in feels apparently level. Defendant since the point highly at a sensitive occurred event in error this case invaded his constitutional during jury’s deliberations. in time rights necessarily it must have risen to the a certain there must be There and stature fundamental error. Such is not about the sacredness quality of secular (1977), Ind., the law. Malo v. In State 361 jury. When the Bail- deliberations p. N.E.2d Supreme 1201 at 1204 our Court forms of explained the iff here read and stated: beyond his jury he went verdicts to the reading and The ex- function. proper “This claim of was made error for the forms which verdict of such plaining by way first of the defendant’s time part represent crucial form alone, brief, it for this is not reason explained only can deliberations jury’s Ind., (1976) Clark v. reviewable. State by the trial open in court to the 762, 766; v. 352 N.E.2d James State parties of all con- judge 59; (1974) 495, 261 Ind. 307 N.E.2d cerned, this the Defend- including in case Ind., (1975) v. 338 N.E.2d Brown State p. his at 85 ant-Appellant and counsel.” 498; (1972) Pinkerton v. 258 Ind. State 289 p. at 144 of N.E.2d. Ind.App., of 154 610, correctly 376. 283 N.E.2d Defendant However, reviewing irregu error is ex- asserts that fundamental an questions to resolve.

larity we have further requiring rules ception proper'in- to the present the Defendant As noted earlier raising objection prerequisite commu of the earlier court and informed appeal, citing Kleinrichert v. issue on time, he At had judge. nication 537, 260 297 (1973) Ind. N.E.2d 822. State a mistrial on to move for opportunity That of relates to complained the error jury com grounds before appropriate addition, right guaranteed by of a violation In its deliberations. pleted itself, did acknowledges not, he in and of constitution does to Correct in Motion this error include requiring render it fundamental error us the first question and raises Errors go against well established rules of make such in Failure to appeal. on time Rather, procedure. error is fundamental raising the error normally precludes clusion which, rectified, deny error if not would Procedure, Trial Ind.Rules appeal. process.’ due appellant ‘fundamental addition, failure 59(G). In Rule 101, (1972) Webb Ind. 284 v. State 259 irregularity at the object to an promptly N.E.2d 812.” waiver constitutes a time it occurred proposition The that a violation of a con- Supreme Our irregularity. such necessarily right stitutional does not estab- (1978), v. in Dodson State recently held explained lish error is in detail fundamental 90 as follows: 381 N.E.2d 206

by Judge 276, of this Court in Winston F.2d Sullivan We think that Indivig- (1975), Ind.App., v. 332 N.E.2d State 229 lio court’s statement corroborates our in- part beginning p. where he stated 232 terpretation of the character of ‘funda- of 332 N.E.2d: gleaned mental error’ from the Indiana cases: that such are errors those alleged

“The that the inadmissabil- that so fact ity particular piece of a of evidence inundate trial as to remove rests from the proceedings on constitutional rather than common law its essential cloak of fairness. statutory grounds has not deterred the Admission here testimony questioned applying specific Indiana courts from is not such an error.” objection requirement timely with Phillips Finally, (1978), Ind., v. State equal in such force cases. See Harrison 1143, our Supreme Court an- 359, [(1972), v. 258 281 State Ind. N.E.2d swered a question similar the one now 98]; (1971), v. 256 Ind. Smith faced this Court as follows: 133; Sargeant 271 N.E.2d “The assigned defendant as error cer- 525; Tyler N.E.2d tain alleged indiscreet comments made 815; 250 Ind. the court’s bailiff to jurors. one Mosby (1975), Ind.App., The comments made by the bailiff related 600; Hardin v. State Ind. to his assessment of defense counsel’s App., 287 N.E.2d Johnson v. State * * professional capabilities, which was fa- (1972), Ind.App., 281 N.E.2d 922.” vorable, speculation as to the content of his argument. exchange of such “The Court’s definition of comments between the an officer of the State, error fundamental in Grier su- court and a member of a during the pra, being an error prejudi- which so course aof trial is highly improper, but in cial to the defendant that he ‘could not this it appear instance does not to have trial’, have had a fair Id. 251 Ind. 214 at been prejudicial to right ato 217, (emphasis 240 494 at sup- 496 fair impartial trial. plied), suggests to us an error that per- Further, climate of failed to proceedings vades the be- make a low, whole, timely objection as a depriving viewed a motion for mistrial. any of opportunity argues upon defendant realistic He appeal for that the conduct hearing. a fair The in cases which ‘fun- complained of was fundamental error and error’ recognized damental has been that, in therefore, the correct proce- in-trial judge’s the trial unfair conduct towards dure was not a prerequisite presenta- to defendant, see, g., State, e. Ford v. tion of upon appeal.' the issue But, as 438, supra, [(1967), 248 Ind. 229 N.E.2d stated in Webb v. State 259 Ind. 634], [(1943), supra, Wilson reviewing a court 848], substantiate our should be reluctant to invoke the rule of to the inference as character of error error, fundamental and will only do so which will be considered ‘fundamental’. when a blatant error has occurred which Appeals The United States Court for would, otherwise, deny a defendant fun- Circuit, refusing Second to review due process.” damental of supposedly admission constitution- Here, comments the court to ally inadmissible evidence because of a the jury outside the presence of the Defend timely object failure to to its introduction ant were favorable to the Defendant’s below, case. that power stated its to review The apparently court the jury told a that improperly raised would errors be re- toy gun not weapon a deadly stricted errors ‘seriously to under the affect fairness, Robbery Later, Armed public Statute. integrity reputa- and in the judicial tion proceedings.’ counsel, United Defendant and (2d Indiviglio 1965), States v. Cir. expanded court somewhat this same imprisonment con- Defendant was mean for Since the the remainder principle.5 Robbery, the lesser offense life. victed of defendant’s court at- tempted reflected the favorable nature to jury’s 'respond by stating verdict that some Under the circum- of these comments. prison defendants die in and others are it is to us that the of this case clear stances paroled. DeBruler, writing Justice for the was not so blatant that complained error that majority, stated it was error for the realis- deprived “of the Defendant was prosecutor court to instruct for the hearing.” There- a fair opportunity tic argue convicted will defendant serve fore, fundamental due he was not denied a lesser sentence than that which the jury a fair trial. process and did receive might impose. The Supreme Court did hold, however, that if there is inquiry Judgment affirmed. juror concerning the actual time a defend- might subject ant if serve or is inad- CHIPMAN, J., opinion. P. concurs with vertently jury, introduced then the J., YOUNG, concurs. may give court a limited instruction on that subject.1 CHIPMAN, Presiding Judge, concurring. The record in the case at bar does not majority I with the Although concur inquiry disclose an was made conclusion, gravely I am con-

the ultimate juror subject on the of a lesser sentence or the trial court’s instruction con- cerned over through inadvertence the matter was sentences, parole, cerning probation, short injected into light the trial. In of the Feg- spent jail for time good time credit decision, gins “good the court’s time” in- though sentencing. Even the con- prior to are, struction would be error. We how- instruction advis- cluding paragraph ever, compelled by Cooper decision to speculate as to the time a es hold that has Decker waived this issue by serve, may ultimately actually it defendant failing to it in include his motion to correct injects into a criminal trial element that and, further, giving errors that the court’s attorneys even complicated so “good identical time” instruction does difficulty interpret- have the Parole Board not rise to “substantial error” which would ing legislation pertaining these sub- thus permit appellant to address it for the jects. first on appeal. time majority opinion, As out pointed I it clear think should be addressed this issue in with attempt court’s to discuss State, (1977) 265 Feggins cases of v. sentence, possibility of a lesser unless the Cooper 359 N.E.2d 517 and Ind. Feggins circumstances are similar State, 359 N.E.2d 532. (1977) 265 Ind. case, juror inviting reversible error when the Feggins prospective trial a In the preserves life sentence would defendant that error. inquired as to whether a first, that, opinion jury, the State is no circumstances should authorized 5. Under approving judge’s length the trial oral law to for the be construed as instruction that a confine accused full “toy “danger- gun” any him, second, is not a sentence received but that deadly weapon” IC under 35-12-1-1 ous or (now repealed), various devices exist which could reduce the “deadly weapon” any under IC length ant, or sentence parole, received defend- 1, 1977). (effective If a October including pardon, time,” 35-42-5-1 “good bludgeoning “toy gun” used as a in- could be length and that the sentence which the meaning of a it fall within strument would actually upon contingent will accused serve is deadly weapon dangerous defined numerous future events and cannot be deter- 381 N.E.2d 1064. Jones certainty mined with at the reasonable this jurors of trial. should time For reason prevention approach such 1. best such devices exclude consideration of their from speculation, approach inappropriate so as to fall into deliberations fruitless State, is to fair to the accused and the which is instruct the speculation. (1977) Feggins upon inquiry upon their 674, 685, 359 subject before inadvertent introduction of the

Case Details

Case Name: Decker v. State

Court Name: Indiana Court of Appeals

Date Published: Mar 5, 1979

Citation: 386 N.E.2d 192

Docket Number: 2-877-A-331

Court Abbreviation: Ind. Ct. App.