659 N.E.2d 522 (Ind. 1995), 49S00-9304-CR-482, Harris v. State

Docket Nº49S00-9304-CR-482.
Citation659 N.E.2d 522
Party NameJames C. HARRIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Case DateDecember 28, 1995
CourtSupreme Court of Indiana

Page 522

659 N.E.2d 522 (Ind. 1995)

James C. HARRIS, Appellant (Defendant Below),

v.

STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-9304-CR-482.

Supreme Court of Indiana.

December 28, 1995

Page 523

Nancy L. Broyles, McClure, McClure & Kammen, Indianapolis, for appellant.

Pamela Carter, Attorney General, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for appellee.

ON DIRECT APPEAL

SULLIVAN, Justice.

James C. Harris, defendant, and his cousins, Nelson Harris and Terry Buggs, were charged with Murder, 1 Felony Murder, 2 Conspiracy to Commit Robbery (Class A felony), 3

Page 524

Robbery (Class A felony), 4 and Confinement (Class B felony) 5 on December 5, 1991. A jury trial commenced on December 7, 1992. Three days later, the jury found defendant to be not guilty of Murder and guilty of all the remaining charges. On January 5, 1993, the trial court merged the conspiracy to commit robbery charge into the robbery charge and sentenced defendant to a term of imprisonment of twenty years for Robbery, sixty years for Felony Murder, and twenty years for Confinement with all sentences to be served concurrently. We affirm.

Background

Tony Harvey worked at Kurt's Marathon Station, which was located on North Pennsylvania Street, Indianapolis, Indiana. The owner of the gas station was Kurt Kahlo. Around 10:00 p.m. on Friday, November 22, 1991, Mr. Harvey began closing procedures for the station. About that time, defendant, accompanied by his cousins, Nelson and Terry, came to the station to visit Mr. Harvey. The three men helped Mr. Harvey finish closing the station. Mr. Harvey left $100.00 in the cash register drawer for opening the next day and dropped the day's proceeds into the safe. Mr. Harvey had a beer with the three men after they left the station. Defendant, Mr. Kahlo's former employee, knew that Kahlo told his employees to hand over any money if the station were robbed.

The next day defendant again got together with his cousins. Nelson declared that he "wanted to make some money." (R.1130). Defendant understood Nelson's statement to mean that he wanted to commit a robbery. That evening, the three drove around in Terry's girlfriend's blue Ford Mustang. Terry's girlfriend kept a .32 caliber revolver in the armrest of the Mustang. After noticing that the Shell gas station across the street from Kurt's Marathon was busy, Nelson asked defendant if Kurt's Marathon was still open. Defendant informed Nelson that it was open. After Nelson told Terry where to park the car, Nelson entered Kurt's Marathon and bought a can of pop. Nelson returned and described who was working, and defendant told Nelson that the person he had described was the owner. The three men concluded that robbing Kurt's Marathon would be easy due to Mr. Kahlo's friendly nature and the policy regarding robbery, and defendant thought there would be between five and six hundred dollars in the register. Nelson stated that he was going to shoot the guy if he did not give him the money.

As Nelson exited the car and entered Kurt's Marathon, Terry drove around the corner and parked southbound on Pennsylvania Street. A few minutes later, Nelson returned and informed his cohorts that Mr. Kahlo was dead. When defendant and Terry exclaimed that they told him not to shoot anybody, Nelson stated that he took Mr. Kahlo to the back of the station and shot him in the head because he wanted to know what it felt like to shoot someone.

Nelson gave each of his cohorts twenty-five dollars out of the one-hundred dollars he had stolen. Nelson also took two rings from Mr. Kahlo, one gold wedding band and one silver ring with diamonds. Nelson gave defendant the gold ring, but defendant threw the ring out of the car.

While the threesome attended a party, the police were called to Kurt's Marathon regarding an unattended gas station. The officers discovered Kurt Kahlo's body in the bay area at the back of the station. The cash register drawer was open and empty and a shell casing was found underneath a rag on the top of a desk near Mr. Kahlo's body.

The police located the blue Ford Mustang through an anonymous tip. When questioned, Terry informed the police that he had sold the gun Nelson used for thirty dollars. Defendant waived his constitutional rights and confessed when questioned by the police.

Kurt Kahlo died as a result of the injuries he sustained during the robbery. The autopsy revealed that he suffered a single gun shot wound to the left side of his head. The stellate shaped entrance wound and the sight imprint at the top of the wound indicated that the gun had been very tightly pressed against the victim's head when it was discharged.

Page 525

The police later determined that a bullet that was found near Mr. Kahlo's right ear came from the handgun Nelson used during the robbery.

I

After the jury was sworn and the State presented its first witness, Tony Harvey, Juror Number One, Marsha Kite, realized that she had met Tony Harvey's brother, Curtis, who was also a State's witness, the previous weekend. The trial court conducted a hearing outside the presence of the jury, during which Ms. Kite was questioned by the trial court and both parties. Ms. Kite stated to the trial court that she brought her car in for service at Pete's Service Station, which was owned by Kurt Kahlo, on the previous Friday. Curtis Harvey, an employee there, drove her car home on Saturday, picked her up, and then drove back to the garage. During this time, the two engaged in "pleasant conversation about nothing in particular," (R.835), which had nothing to do with the present case. During the hearing, Ms. Kite and defense counsel had the following exchange:

Mr. Thomas: Have you discussed this with any of the other jurors in this case?

Ms. Kite: No.

Mr. Thomas: Would you weigh Curtis' [sic] testimony any greater than you would anybody else's? I mean, do you think you'd tend to believe him more than somebody else because you know him and you met him and had some conversation and thought he was a nice young man?

Ms. Kite: I don't honestly know. I'd like to think I could be objective.

Mr. Thomas: Sure.

Mr. Kite: But uh, I don't know that for certain.

Mr. Thomas: Okay. Because, you know, the question here is--obviously, I mean, we spent a day trying to make sure everybody's fair and impartial and, nobody can really tell us that, unfortunately, except you. We can't hook you up to a machine. So what do you think?

Mr. Kite: I can only tell you that I would make every effort to weigh the uh, the evidence, the testimony on its merits.

Mr. Thomas: And, that you wouldn't share any of this with the other prospective jurors until the case was over?

Ms. Kite: No.

(R.836-38).

At the conclusion of the hearing, defendant moved to excuse Ms. Kite and replace her with the alternate juror. After concluding that the contact between the juror and the witness was casual and that Ms. Kite appeared to be a "conscientious juror ... the kind of jurors [sic] you want," the trial court denied defendant's motion. (R.842-43).

Defendant contends that the trial court committed reversible error by denying his motion to dismiss Juror Number One because the juror stated that she would "like to think [she] could be objective" but didn't know "for certain." (R.837). The State counters that the trial court did not abuse its discretion by denying defendant's motion because the contact between the juror and the non-party State's witness was casual, no discussion of the case occurred between them, and the juror stated that she would do her best to be impartial.

Article I, § VIII of the Indiana Constitution guarantees a defendant's right to an impartial jury; therefore, a biased juror must be dismissed. Indiana Trial Rule 47(B) in part provides that "[a]lternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury returns its verdict, become or are found to be unable or disqualified to perform their duties." Trial courts have broad discretion in determining whether to replace a juror with an alternate, and we will only reverse such determinations where we find them to be arbitrary, capricious or an abuse of discretion. Campbell v. State (1986), Ind., 500 N.E.2d 174, 181; Woolston v. State (1983), Ind., 453 N.E.2d 965, 968, reh'g denied. An abuse of discretion occurs only if the decision placed the defendant in substantial peril. Woolston, 453 N.E.2d at 968.

The trial court was in the best position to assess the honesty and integrity of

Page 526

Juror Number One and her ability to perform...

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