Anderson v. State, 2--975A255
| Decision Date | 30 March 1977 |
| Docket Number | No. 2--975A255,2--975A255 |
| Citation | 172 Ind.App. 549,360 N.E.2d 1266 |
| Parties | Burt S. ANDERSON, Dennis D. Seaman, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Donald G. Fern, Peru, for appellants.
Theo. L. Sendak, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
This case was transferred to this office from the Second District in order to help eliminate the disparity in caseloads among the Districts.
Defendants-appellants, Burt S. Anderson and Dennis D. Seaman (Anderson and Seaman), were charged with having committed the crimes of robbery 1 and committing a felony while armed with a deadly weapon. 2 A jury found Anderson and Seaman guilty of committing a felony while armed with a deadly weapon. From the denial of their motion to correct errors this appeal was perfected.
Anderson and Seaman contend, inter-alia, that the trial court erred in permitting their mug shots to be taken and viewed by the jury during their deliberations. These mug shots were of the standard type consisting of a front and side view together with booking information found on the front and back thereof. There was no effort made to conceal this printed information from the jury.
In Thomas v. State (1972), 259 Ind. 537, 289 N.E.2d 508, our Indiana Supreme Court adopted the standards set forth by the American Bar Association on the permissibility of allowing the jury to have in their possession during their deliberations exhibits and writings which have been properly introduced into evidence. In Thomas, supra, at p. 509 it was said:
'(1, 2) The best rule is found in § 5.1 of the Standards Relating to Trial by Jury (American Bar Association Project on Standards for Criminal Justice):
'5.1 Materials to jury room.
(a) The court in its discretion may permit the jury, upon retiring for deliberation, to take to the jury room a copy of the charges against the defendant and exhibits and writings which have been received in evidence, except depositions.
(b) Among the considerations which are appropriate in the exercise of this discretion are:
(i) whether the material will aid the jury in a proper consideration of the case;
(ii) whether any party will be unduly prejudiced by submission of the material; and
(iii) whether the material may be subjected to improper use by the jury." (Original emphasis)
Applying these guidelines to the facts in the case at bar we are convinced that the trial court abused its discretion.
As to point (b)(i), it is difficult to imagine how the jury could have been assisted by having Anderson's and Seaman's mug shots in their possession during their deliberations. State's witness Orpurt identified both Anderson and Seaman on direct examination as the perpetrators of the robbery. Orpurt's in-court identification of the defendants was challenged on cross examination by defense counsel's references to a pre-trial photographic display in an effort to taint Orpurt's in-court identification. However, Orpurt's identification of Anderson and Seaman was rehabilitated when the State on redirect examination had Orpurt again identify the disputed pre-trial mug shots of Anderson and Seaman. Also, it should be noted that the jury at this point in the trial had an opportunity to view the mug shots.
As to point (b)(ii), mug shots of the type we have in the case at bar are...
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