622 N.E.2d 488 (Ind. 1993), 79S02-9310-CR-1147, Farrell v. State
| Date | 22 October 1993 |
| Docket Number | 79S02-9310-CR-1147. |
| Citation | 622 N.E.2d 488 |
| Parties | John J. FARRELL, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
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Cynthia L. Garwood, Cooke Laszynski and Moore, Lafayette, for appellant.
Pamela Carter, Indiana Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
ON PETITION TO TRANSFER
KRAHULIK, Justice.
John Farrell (Defendant-Appellant below) was sentenced to a term of forty-eight years following his conviction, by jury, of kidnapping. Ind.Code Ann. Sec. 35-42-3-2 (West 1986). 1 The conviction and sentence were affirmed in his original appeal. Farrell v. State (1993), Ind.App., 612 N.E.2d 124.
In his petition to transfer, Farrell raises the following issues:
(1) Whether the trial court erred in requiring the jury to continue deliberations;
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(2) Whether the victim's identification of Farrell was properly admitted;
(3) Whether testimony of an expert on eyewitness identification procedures was properly excluded;
(4) Whether defendant received ineffective assistance of counsel by counsel's failure to move for a hung jury; and
(5) Whether the sentence was manifestly unreasonable.
Facts
The facts most favorable to the judgment reveal that shortly after 2:00 a.m. on August 18, 1990, in Lafayette, Indiana, Gina Handley stopped to use a pay telephone. She parked her automobile a few steps away from the telephone booth, with the engine running, the driver-side door open, and the headlights on. Immediately after she re-entered the automobile, a man, whom she identified as Farrell, approached her from behind and ordered, "Scoot over, I've got a gun." Handley observed the man standing by the car pointing a gun at her. She moved into the passenger's seat. Farrell entered the automobile and ordered Handley to place her hands behind her neck and keep her head down. Again, Handley obeyed. Farrell began driving through the city. Despite pleas to be let free, Farrell repeatedly threatened Handley and shoved her head down. After fifteen or twenty minutes, Handley was able to jump out of the automobile.
Handley informed police about the attack. The following day, Handley identified Farrell in a photo array. She also identified him at trial as her attacker.
Jury Deliberations
Farrell argues that the trial court violated his right to a fair trial by requiring the jury to continue their deliberations notwithstanding signs of the jurors' exhaustion. Because we agree that the jury should have been able to rest before further deliberations, we grant Farrell a new trial.
Trial proceeded on June 11, 12 and 13. The jury began its deliberations at about 8:15 p.m. on the 13th. Some time on the morning of the 14th, the jury foreman presented the court with four questions. 2 The foreman reported to the trial court that, although the jury had not yet reached a verdict, he thought one could be reached with additional time. Breakfast was ordered, the instructions were reread, and the jury reviewed exhibits before returning to deliberations. Although defense counsel expressed concern about whether each juror believed that an agreement on all counts could be reached, no objection was made at that time. The court responded:
At this point in time it seems to me it's fairly discretionary with the Court as long as the Foreperson feels that there's a chance of working it out, we've spent--we've been at this for twenty-four straight hours and maybe we ought to let the process work, it's gonna--if we get a hung jury we're gonna have--the defendant's gonna have additional cost and expense and the agony of going through possibly a second trial.
At around noon on the 14th, the jury returned to the courtroom where the following exchange occurred between the court and the jury foreman:
THE COURT: Have you reached a verdict on each of the six counts?
FOREPERSON: No, Your Honor.
THE COURT: Okay, are you at a point where you've reached agreement on any of the counts?
FOREPERSON: Yes, Your Honor.
THE COURT: Okay, and you still have some left that--you feel that any additional time--with additional time that you could reach a unanimous agreement as to all counts?
FOREPERSON: I think that's quite possible.
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THE COURT: Okay, you've been working awfully hard, and do you want something to--you want us to have dinner brought in?
FOREPERSON: (No audible answer)
THE COURT: Or do you just want a little bit more time to iron things out--what--what's--as the Foreperson what's your feeling on it?
FOREPERSON: Your Honor, I think if we would need to have lunch brought in.
THE COURT: Okay.
FOREPERSON: Everybody's tired, naturally.
THE COURT: Yes.
FOREPERSON: We're hungry, and that probably might help us out.
THE COURT: And you feel that with--if we bring dinner in or lunch in that you can continue to make progress and be able to make progress toward agreement on each of the counts, is that what I hear you telling me?
FOREPERSON: Yes. Your Honor.
THE COURT: Okay, we'll have some dinner brought in for you. I think at this point I'm going to bring in another bailiff to help us out, I'm gonna send one bailiff home.
UNKNOWN: Not fair.
Lunch was ordered, and the jury returned to deliberations. The following exchange then occurred between the court and counsel:
THE COURT: Okay, I have just sent the jury down to the jury room, I've just directed one of the bailiffs to secure food for the jurors. The Foreperson of the jury has advised the Court in open court that he feels that with some additional time that he feels that the jury can reach unanimity on the remaining counts. Do you have an objection for the record, Mr. Nemeth?
MR. NEMETH [DEFENSE COUNSEL]: Yes, Your Honor, two fold objection; one, for the Court, the Foreman was indicating that he thought there could be an agreement and I saw at least two of the jurors shake their heads at that particular time indicating that there probably couldn't be an agreement. In addition, my second one is that these jurors have worked very hard most--I think they went--began deliberation--and I'm--been up since that time also but I think they began deliberations at 8:15 last night, worked through the night, we know that, we brought them up this morning and asked them if they wanted more time and they at that time indicated that that would be appropriate, the total amount of time I think is now 16 hours, I would request that they be sequestered and given some rest so that they could sit down and give--their thought processes would be back in shape, I think it's gonna be real hard for them at this point for them to come up with a decision.
THE COURT: What would you suggest, Mr. Nemeth, for the record where you'd like the Court to send these jurors to have them sequestered.
MR. NEMETH: Your honor, my suggestion would be some motel I guess would be my only--
THE COURT: Some motel?
MR. NEMETH: That's the only thing that I know.
THE COURT: Okay.
MR. DWYER [THE STATE]: Yes, Your Honor, for the record, the State would join in the defendant's request that the jury would be sequestered, the foreman has indicated his belie[f] that given further time the jurors could reach unanimity. I personally observed a juror crying in the back row a few minutes ago, and I would--
THE COURT: Let me ask you--
MR. DWYER: On behalf of the State request that they--
THE COURT: Let me ask you this question, I don't have any problem sequestering this jury if that's what you two want to do. Do you see any problem or harm if we feed these jurors, bring some food in and in the next hour or two we feed them, bring the food in to
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them and then if in the next couple hours we don't reach an agreement then the Court will make arrangements to sequester the jury is that what you--would something like that be a possibility?
MR. NEMETH: Your Honor, I have no problem I guess with feeding the jury and allowing them that, but I guess my objection was--
THE COURT: Do you join in that suggestion?
MR. DWYER: I think that's a reasonable suggestion Your Honor, yes.
THE COURT: I'll take that under advisement. Thank you very much.
MR. DWYER: Thank you Your Honor.
Approximately two to three hours later, the jury returned with a verdict, guilty on all counts.
Although we reject Farrell's argument that the trial court abused its discretion in refusing to declare a hung jury, we do agree that the trial court erred in expecting the jury to continue deliberations after being without sleep for a period of approximately thirty hours.
The trial court correctly noted that the length of time a jury should be permitted to deliberate is within the sound discretion of the trial court. King v. State (1988), Ind., 531 N.E.2d 1154, 1161. In King, the trial court continued proceedings until 11:10 p.m., despite the defendant's objections. In holding that the trial court did not abuse its discretion, this Court noted:
The trial judge was also a participant in the trial and was in a better situation to assess fatigue and state of mind tha[n] this court. The decision to continue into the night was one of those undoubtedly made after considering all of the negative aspects whether raised by appellant or not. The judge had the unique ability to weigh the pros and cons of an adjournment and his determination will not be disturbed. That is not to say that all decisions of this type will be met with approval. Rather, it means that a clear showing of abuse of discretion coupled with prejudice to the defendant must be shown.
Id.
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The Right to a Well-Rested Jury.
...taken into account have included ... the use of physical punishment such as the deprivation of food or sleep ...."); Farrell v. State, 622 N.E.2d 488, 492 (Ind. 1993) ("The importance of sleep is also recognized in various laws. For example, the number of hours motor carriers may operate is......