Atkinson v. State

• Citation: 181 Ind.App. 396,391 N.E.2d 1170
• Decision Date: 18 July 1979
• Docket Number: No. 1-178A4,1-178A4
• Parties: Charles Michael ATKINSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 1170

391 N.E.2d 1170

181 Ind.App. 396

Charles Michael ATKINSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-178A4.

Court of Appeals of Indiana, First District.

July 18, 1979.

E. Edward Dunsmore, Knightstown, R. Clark Allen, New Castle, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

LYBROOK, Judge.

Defendant-appellant Charles Michael Atkinson brings this appeal from his conviction of the offense of commission of a felony while armed under Ind.Code 35-12-1-1, since repealed. Following his conviction at a trial before a jury, Atkinson received a determinate sentence of ten years imprisonment. Atkinson's Motion to Correct Errors was overruled by the trial court. He presents the following issues for review:

I. Whether the defendant was denied a fair trial by irregularities in the proceedings, including:

(a) Misconduct by a juror.

(b) Abuse of the trial court's discretion when the trial court asked improper questions of a witness.

(c) Abuse of the trial court's discretion in not answering a juror's question.

II. Whether the trial court erred in giving final instructions Nos. 4, 8 and 12.

III. Whether the verdict is not supported by sufficient evidence on the question of defendant's sanity at the time of the incident.

I.

Atkinson asserts that he was denied a fair trial by irregularities in the proceedings under the provisions of Ind.Code 35-1-42-3, since repealed, which provided:

"The court shall grant a new trial to the defendant for the following causes, or any of them:

First. Irregularity in the proceedings of the court, or jury, or for any order of the court or abuse of discretion by which the defendant was prevented from having a fair trial.

Second. When the jury has separated without leave of the court, after retiring to deliberate upon the verdict.

Third. When the jury has received and considered any evidence, paper or document not authorized by the court.

Fourth. When the jury has been guilty of any misconduct tending to prevent a fair and due consideration of the case.

Fifth. When the verdict has been found by means other than a fair expression of opinion on the part of all the jurors.

Sixth. Accident or surprise which ordinary prudence could not have guarded against.

Seventh. Error of law occurring at the trial.

Eighth. Newly discovered evidence, material for the defendant, which he could not, with reasonable diligence, have discovered and produced at the trial.

Ninth. When the verdict of the jury or the finding of the court is contrary to law, or is not sustained by sufficient evidence.

The motion for a new trial and the causes therefor shall be in writing and must be filed within thirty (30) days from the date of the verdict or finding; and any such cause not disclosed in the record shall be sustained by affidavit. The motion must be filed in open court, if the court be then in session; otherwise it shall be filed with the clerk of the court." (Emphasis added.)

A.

The question of jury misconduct has been raised by way of affidavits filed as part of the Motion to Correct Errors, which purport to show that one of the jurors, Wayne Larrison, knew Atkinson, considered disqualifying himself, and discussed the case with third persons on several occasions during the trial. The affidavits were offered by Atkinson's brother-in-law, William Burns; Burns' wife, Anita; his son, John, and a waitress at a local restaurant, Lois Ballard.

The affidavits state that on May 31, 1977, the first day of trial, Wayne Larrison told Lois Ballard that he would probably have to excuse himself from jury duty on this case because he knew Atkinson's family (presumably the Burnses). The Burnses stated under oath that Larrison told them on May 31, 1977, that he did not know who Atkinson was until he saw the first witness at trial, and that Larrison thought he should disqualify himself. ¹

In the case of Gann v. State, (1975) 263 Ind. 297, 330 N.E.2d 88, the Indiana Supreme Court held that there must be a showing that the defendant was harmed by alleged irregularities on the part of the jury. Misbehavior or irregularity must in order to warrant a new trial be gross and it must be shown to have probably injured the accused, citing Oldham v. State, (1967) 249 Ind. 301, 231 N.E.2d 791; Hatfield v. State, (1962) 243 Ind. 279, 183 N.E.2d 198. See also Ind.Code 35-1-42-3, since repealed.

In the case of Barnes v. State, (1975) 263 Ind. 320, 330 N.E.2d 743, the defendant claimed prejudice where a juror, who answered negatively on Voir dire to the question of whether he had any friends or relatives on the prosecutor's staff was discovered to be married to a second cousin of a member of the prosecutor's staff who was involved to a slight degree in the Barnes case. The Indiana Supreme Court ruled that even though the juror may not have been aware at the time of the Voir dire question of his relationship, if at any time prior to the verdict he discovered the fact, the possibility of bias existed. In such a situation, the Supreme Court said, the defendant would need to have the opportunity to probe the juror and, if he chose, to challenge for cause; it is only if throughout the trial the juror never knew of the relationship that there would be no error since the relationship could not have influenced his decision. In Barnes, the Supreme Court remanded the case to the trial court for an evidentiary hearing for determination of (1) whether the juror was aware of his relationship to the member of the prosecutor's staff at the time of Voir dire, and (2) if at any time prior to the verdict, the juror became aware of his relationship to the member of the prosecutor's staff.

The Supreme Court held that if either of these questions were answered in the affirmative then the defendant had a right to challenge the juror for cause under Ind.Code 35-1-30-4, since repealed, ² and a new trial must be ordered. As a Caveat, however, the trial court in Barnes was ordered to determine whether or not at any time prior to the verdict the defendant or his attorney knew of the relationship. If so, then the challenge for cause would be waived if the defendant failed to promptly inform the trial court on learning of the relationship and to challenge the juror.

The Supreme Court added a further criterion for consideration by the trial court at the evidentiary hearing on possible juror misconduct in the case of Stevens v. State, (1976) 265 Ind. 396, 354 N.E.2d 727, where the discovery of possible prejudice was made after Voir dire but prior to rendering of a decision. The court in Stevens required a hearing, out of the presence of the remainder of the jury, to determine, among other things, whether the juror's inaccurate response indicated bias or lack of disinterest. If the trial court found no bias or interest, it could overrule a challenge for cause and a motion for mistrial and we would review that action only for an abuse of discretion.

In Stevens, the defendant was afforded the opportunity during trial to make this challenge; here, Atkinson will be able to made the challenge at the evidentiary hearing on remand. In either case, the defendant is given sufficient opportunity to determine whether the juror's knowledge biased or prejudiced him in any manner.

We do not have a transcript of the Voir dire before us and so are unable to determine whether the juror, Larrison, was given the opportunity to voluntarily disqualify himself from serving on the jury, or was questioned concerning any possible relationship with Atkinson's family. In light of the affidavits which allege that Larrison became aware of who Atkinson was at the time the first witness was called, we believe that the possibility for bias exists. We therefore remand this case to the trial court for an evidentiary hearing to determine: (1) whether the juror knew Atkinson at the time of the trial; (2) whether the juror's knowledge biased or prejudiced him in any manner, either for or against the defendant; and (3) whether defendant knew of the relationship prior to the verdict, thus waiving the error. If the trial court determines that Larrison was prejudiced in some manner, then challenge for cause will have been shown to have existed and a new trial should be ordered. Barnes, supra; Stevens, supra.

To avoid the necessity of a second appeal should the trial court's determination be against Atkinson, we will resolve all of the other issues raised by this appeal.

B.

Atkinson asserts that the trial court abused his discretion in questioning the two court-appointed psychiatrists as to the application of the legal defense of insanity, whether or not Atkinson was psychotic, and whether or not Atkinson required hospitalization. Atkinson maintains that asking the psychiatrists to apply the legal definition of insanity was a usurpation of the jury's function and an invasion of the jury's right to determine the issue of sanity. We disagree.

As the Indiana Supreme Court stated in Williams v. State, (1976) 265 Ind. 190, 352 N.E.2d 733:

" 'The function of an expert witness in a case concerning sanity or insanity is advisory in nature. He does not state a Fact but gives an Opinion in order to aid the jury or trier of fact. The trier of fact must make the ultimate decision on this issue.' Smith v. State (1972), 259 Ind. 187 at 189, 285 N.E.2d 275 at 276. These opinions need not stop short of conclusions phrased in the terms adopted in Hill v. State ((1969), 252 Ind. 601, 251 N.E.2d 429). In Sotelo v. State (1976), (264) Ind. (298), 342 N.E.2d 844, for example, two court-appointed psychiatrists testified that the defendant in that case was unable to conform his conduct to the requirements of the law and was therefore legally insane. An opinion by an expert witness upon an ultimate fact in issue is not excludable for that reason. 'The argument that such an opinion usurps the...