*1 promised get money together array, lant the voice the identifica- up payment. appellant finish the down On June 26 tion of in a direct manner at trial. paid apparent he the balance of due on the $25.00 on the record that this wit- payment. language down On June after the at- ness had distinct difficulties. The theft, paid regular testimony tack and of Teresa Butler $20 was likewise weekly payment. supportive of their identification of lant and the conclusion of trial, pointed
At all three of the victims appellant out as one of the men who had There was sufficient evidence for the Appellant Bane, attacked them. Randy contends that to conclude that the ac- him, below, here, appellant their identification of based as it was cused was one of upon insufficient, beyond voice identification is the attackers a reasonable doubt. first, because of inconsistencies and uncer- The conviction is affirmed. tainties, victims, primarily which the wife, manifested, second, because the HUNTER, PREN- corroboration of their identification is so PIVARNIK, JJ., TICE and concur. slight. perpetrator
Identification of the through recognition
of an offense of voice is Appel a matter insufficient as of law. opinions height
late do reveal however a judicial dealing
ened concern with con
victions based it which often takes the independent form of a close look at corrobo JENKINS, Appellant, Mark Nevertheless, rating there is no requiring buttressing rule corroborative identification evidence and voice identifica Indiana, Appellee. STATE of independently tion has been treated as suf (1980), Ind., ficient. Zollatz v. Equivocalities manifested Court of Indiana. voice witnesses identification between the time of the offense and trial affect credibil
ity consider, and are for the trier of fact to Zollatz, appellate supra.
and not courts. case,
In this the husband testified opinion ap
that he formed a definite attackers,
pellant during was one of the
attack, having after been addressed name, Jerry, by
first man with the
higher voice. The niece formed the conclu during that the
sion the attack voice which higher
was the the two was familiar to
her. Within an hour both of these witness police
es told the the voice Later, appellant.
heard was that of both of put
these victims when to the test of a voice procedure, during
identification spoke,
were unable to see those who select appellant
ed as their assailant. wife, admitting uncertainty while having pick appellant
and to failed to from
1003 Later again returned to the foreperson courtroom inquired meaning as to the gratification. of sexual In response to this the trial court modified court’s Final by Instruction 16 adding end, an additional sentence at its and new drafted a instruction. Both these then appellant’s over objections..
When
question
confronted with a
from a
which has commenced delibera
tion,
challenge
to the trial judge is to
respond in a manner which
accords with
legal requirements for final
instructions
path
which is fair. The
extremely
is
hazardous
court
for
that would
body
from the
of final instructions and do
other
than reread
instructions
jury questions.
responding to
Such a de
parture will
only
be warranted in
the most
extreme circumstances. Brannum v.
1180;
267 Ind.
Camer
Ind.,
State, (1979)
must serve to amend the final instructions
necessary
adding
previously
one
omit
correcting
one,
ted or
an erroneous
must be fair to the
sense
it
judge’s
reflect the
view
factual
Hall v.
matters.
Brinkmeyer, Evansville,
Dennis
Thus,
is
jury question
it
lant.
legal
coincides
an error or
lacuna
Pearson,
Gen.,
Linley
Atty,
E.
Frank A.
final instructions that a
other
Baldwin,
Gen., Indianapolis,
Deputy Atty.
rereading
body
than
in
appellee.
permissible.
structions is
DeBRULER, Justice.
regarding
gratifica
Jenkins,
Appellant, Mark
convict
stands
tion,
departed
court
attempted
crime
devi
ed of the
criminal
final instructions.
Instruction
ini
No. 16
armed,
felony,
A
ate conduct while
a class
tially
follows:
read as
to Ind.Code
35-42-4-2. Trial
§
you
“The
instructs
that Deviate
Posey
by jury
took
Circuit
Sexual
means an
Conduct
act of sexual
Court, resulting
in a
verdict. He
gratification involving
one
organ
a sex
appeals alleging error in the manner in
the mouth or
anus of another
judge responded
person.”
questions during court modified
instruction
add-
deliberations,
into
Three hours
following
sentence to it:
through
into
court
returned
gratification may may
“Sexual
foreperson
asked the court for the
ejaculation.”
clude
of a lesser included offense.
then
The court
gave
read all of the final
to He also
new
instructions
instruction
which stated:
defines
as a source
ence of the
“Webster
pleasure.”
gratification or
gave
the case. The trial
also
appraisal of a witness’s testimony in the
originally given
16 as
Instruction No.
presence
of a
He additionally gave a
It utilized the
was not erroneous.
special instruction in the
middle of the
term “sexual
from the stat-
*3
deliberation in which he
establishing
ute
the offense of criminal de-
commented
special
The term has no
the
attorney’s
argument
viate conduct.
defense
statute,
legal meaning
used in the
but is
quotation
Concerning
from a case.
that
ordinary
jury
sense. A
of twelve
used in its
stated,
activity,
“By giving
latter
this Court
meaning upon
would discern its
fair and
special
sponte, however,
the
instruction sua
There is no rule of law
emphasized
provision
the court
this
as one
judge
juries
to
requiring the
instruct
re-
primary importance
jury,
to the
garding
meaning of
the
such common tended to tell
they ought
them what
to do.
jury’s question regarding
terms. The
not,
fundamental that
court should
gratification
did not co- by
instruction,
suspicion
cast
any
legal insufficiency
incide with an error or
in defense or evidence offered.” This Court
instructions, and it was therefore
the final
state,
went on to
“We must state
error for the trial court to
justice system
in order for the criminal
to
instructions in
survive, our courts must be forums in which
jury’s question.
impartial
all
can receive a fair and
is reversed and remanded
The conviction
Impartiality
persons
trial.
insures that
for a new trial.
punished,
of crimes be convicted and
PIVARNIK,
HUNTER, PRENTICE and
and that innocence be likewise determined.”
JJ., concur.
Cameron, supra,
In
the trial
ex-
GIVAN,
opinion.
dissents with
propriety
ceeded all
bounds of
in not
giving an additional instruction after the
Justice,
dissenting.
Chief
beginning
of the deliberation of the
majority
respectfully
I
dissent from
entering
but
into a conversation disserta-
majority
opinion in this case. The
is revers-
tion with the
during delibera-
the trial court because
its deliberation and the law which would be
tion
of the
applicable
to the case which
were at-
inquired of the court as to the
tempting
parallel
to decide. There is no
gratification.”
In re-
whatsoever between the conduct of the trial
sponse
judge to the
judge in Cameron and the conduct of the
legal meaning
on the
structed the
judge in the case at bar.
gratification.”
the words “sexual
The ma-
jority
position
judi-
Hall,
that this was
supra,
takes the
In
had
two
proc-
cial interference with the deliberation
erroneous instructions to the
Then
law.
ess of the
in violation of Indiana
error,
apparently upon discovering his
majority
To
cites
parties,
in the absence of the
he instructed
v.
cases of Brannum
go
his bailiff to
to the
room and with-
1180,
Cameron v.
N.E.2d
draw the erroneous instructions. The Court
(1979) Ind.,
pointed out that if such conduct were to be
“ * * *
Hall, (1856)
ment He did inject personal views into Nor a jeopardy. of
Although lawyers judges gratification” as used applicable in the case at bar have a statute In the Matter of Glenn R. correctly well understood SLENKER, Jr. judge, pre- we defined cannot laymen readily would as under- sume especially stand such a definition. This is Indiana. today’s magazine true one considers explicit articles and books where sexual lan- guage is often where often used and a equate
writer will “sexual ejaculation orgasm
with either as suits particular purpose in his article. surprise jurors
should come as a
would find some confusion the use of terminology
such and would ask the specific a passing definition before charged
judgment on a with a felo-
ny. should
commended for her effort conscientious
make sure none of the members instructions of court. The be com- handling
mended for his concise and correct situation. As Justice DeBruler said Brannum,
in his dissent in “On the other
hand, however, conducting a duty guide
trial has the affirmative away unnecessarily prejudi-
cial.” In the case at bar had the trial give requested
refused to great
there would have been risk of a
miscarriage justice possibility