Bixler v. State, 982

Decision Date17 December 1984
Docket NumberNo. 982,982
Citation471 N.E.2d 1093
PartiesRaymond Eugene BIXLER, Appellant, v. STATE of Indiana, Appellee. S 365.
CourtIndiana Supreme Court

Peter W. Bullard, Dibble, Bullard & Bartlett, Lafayette, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Raymond Eugene Bixler was found guilty by a jury in the Benton Circuit Court of murder. He subsequently was sentenced by the trial judge to a term of fifty years imprisonment. Defendant now directly appeals and raises the following twelve issues for our consideration:

1. alleged juror misconduct;

2. denial of Defendant's motion to strike certain testimony;

3. denial of Defendant's motion for change of venue from the county;

4. denial of Defendant's motion for change of venue from the judge;

5. certain final instructions;

6. alleged prosecutorial misconduct;

7. denial of motion to let Defendant to bail;

8. jury view of exhibits during deliberations;

9. denial of motion for new trial based on threatening phone calls to Defendant's family;

10. sufficiency of the evidence;

11. cumulative effect of all errors; and

12. alleged improper sentencing.

Defendant Raymond Bixler lived with his mother, Mrs. Reva Pollock, and her husband, on her three-acre tract of land situated in rural Benton County. In 1979, the Lank family purchased ten acres which bordered the Pollack's property. The Lanks did not live full time on their property but used it primarily for weekend family get togethers and hunting. Some of their family activities included target practice, drinking beer and playing music. Late in April, 1981, the Lanks purchased an eighty-acre tract situated on another side of the Pollack property, access to which was gained by a thirty-foot wide lane between the properties along the east boundary of the Pollack property and the west boundary of the Lanks' ten-acre tract. Conflict arose between Defendant's family and the Lanks as to the ownership of the access lane used by the Lanks. Defendant and his mother opposed the use of said lane by the Lanks. A land survey made in December, 1980, prior to the Lanks' purchase of the eighty-acre tract, showed the lane was almost entirely on the Lanks' property. Defendant and his mother, however, persisted in efforts to obstruct the lane by placing boulders and an old pickup truck across it. The Lanks rented out the tillable area of the eighty-acre tract to a farmer who grew hay on it and Defendant allowed the farmer to pass through the lane to harvest the hay. In July, 1981, the Lanks had a bulldozer brought out to clear some of the eighty acre tract to create more tillable area. They took down the fence which blocked part of the lane to get the bulldozer back to the tract. Defendant became increasingly irritated and exclaimed on several occasions that if the Lanks used the bulldozer to move his pickup truck off the access lane, he would shoot the person doing it. Negotiations were in progress between attorneys for both parties attempting to settle the issue in some manner. On Sunday, July 12, 1981, young Ronald Lank was operating the bulldozer on the back eighty acres. He started down the disputed lane along the Pollack property and positioned the bulldozer to push the pickup off the lane. Ronald was packing a .357 Magnum handgun in a holster fastened around his waist. He pushed the pickup truck back about fifteen feet. Defendant, who had been sitting at a nearby picnic table, ran inside the house, grabbed his shotgun, came outside and shot Ronald Lank thereby killing him.

I

Defendant now argues that there was juror misconduct which entitled him to a new trial on two grounds. Defendant first contends the jury used improper methods in deliberating and arriving at a verdict. Secondly, Defendant contends that some of the jurors concealed personal relationships that contributed to their partisanship during his trial.

Defendant submitted affidavits from some of the jurors which detail discussions had in the jury room and some tests conducted by them concerning the .357 Magnum pistol found in the victim's possession after his death. The trial court held a fact-finding hearing on July 2, 1983, on this subject and denied any relief to Defendant. We find the trial court acted properly in this regard. A verdict of a jury may not be impeached by the affidavits or testimony of those who returned it. Bean v. State, (1984) Ind., 460 N.E.2d 936, reh. denied. Juror affidavits or testimony may not be used to demonstrate improprieties in the method by which the jury reaches its verdict. Brown v. State, (1983) Ind., 457 N.E.2d 179. The issue of juror misconduct is a matter within the trial court's discretion and there is no showing here that the trial judge abused his discretion in finding as he did. Smith v. State, (1982) Ind., 432 N.E.2d 1363.

Defendant also attempts to show that certain members of the jury were biased because one was a distant relative, by marriage, of the victim's wife, and another juror had a prior attorney-client relationship with the prosecuting attorney. The trial court properly held a fact-finding hearing to inquire into these charges against the jurors. See Stevens v. State, (1976) 265 Ind. 396, 354 N.E.2d 727, on rehearing 265 Ind. 396, 357 N.E.2d 245. The facts thereby produced showed that juror McGrath had been a co-defendant in a civil action in which the prosecutor, Attorney Bill Weist, was acting as assistant counsel to lead counsel Doug Elwood and the attorney of the other defendant in the action. McGrath stated that Weist had virtually no role in the legal representation. McGrath also said he considered Attorney Tom McConnell to be his attorney and that Weist appeared only to assist Elwood and took very little part in the case. We do not doubt that Weist's participation was very limited since the matter was settled out of court before it ever went to trial. Weist never entered into any agreement of employment with McGrath and never billed him. Weist testified that he thought little of the case since he never really considered McGrath as his client in the cause.

Juror Garriott failed to disclose that his wife had worked for the victim's mother in her upholstery business and that his cousin's wife was an aunt of the victim's wife. Garriott said he did not initially remember that his wife had, in fact, worked for Bonnie Lank for a few months some ten years prior to the trial and he never had any personal dealings with Mrs. Lank at all. He said the relationship had nothing to do with his judgment of the case as he had not even thought about it. He admitted there was some distant relationship, through marriage, with the victim's wife but said there was no closeness there. Specifically, he testified that he had never even had a conversation with the victim's wife and, due to the distance of the relationship, he never really considered her a relative. Again, this relationship had nothing to do with his judgment. After hearing this evidence, the trial court found no juror misconduct and denied relief to Defendant. In view of the facts as we have set them out, we find no error in the trial judge's determination. Defendant has not shown that he was prejudiced in any manner and we will not second guess the trial judge in his determination of issues of fact. Smith, supra.

II

Several eyewitnesses testified that when victim Ronald Lank started to push Defendant's pickup truck from the disputed lane, Defendant was sitting at a picnic table in his front yard very near to the lane. Defendant immediately ran into the house, came out with a shotgun, raised it and fired at the victim. When the victim was found, he had the .357 Magnum which he had been wearing in a hoster in his hand with the hammer in cocked position. These eyewitnesses specifically testified that after Defendant shot Lank, Lank pulled the pistol and started to aim it toward Defendant but collapsed before he could fire. Defendant's version of the story was that although he came out with the shotgun, Lank stood up, drew his pistol, aimed it at him and, after that happened, Defendant shot Lank in self defense. There was testimony at trial about injury to Lank's shoulder from the shotgun blast which raised the question of whether or not Lank would have been able to raise his right arm after he was shot. Dr. McFadden, the pathologist who performed the autopsy on the victim, stated as his opinion that the victim was able to draw and cock his pistol notwithstanding the fact that his right shoulder had been injured by one of the shotgun pellets. This testimony was in conflict with other medical testimony. It developed in McFadden's testimony that he consulted with an orthopedic surgeon, Dr. Shively, who helped him reach his opinion in this matter. McFadden stated that he thought he needed to talk to a fellow expert who had more specialized knowledge of orthopedics and therefore called Dr. Shively. Defendant moved to strike all of McFadden's testimony since at least part of his opinion was based on hearsay, that being the consultation of Dr. Shively. The State contends, however, that McFadden's conference with Shively was simply additional research on McFadden's part and that whatever Shively contributed to McFadden's research would merely go to the weight of McFadden's testimony and would not destroy his expert status. We agree. An expert may rely on hearsay in forming his opinion when an expert uses other experts and authoritative sources of information like treatises to aid him in arriving at that opinion. Hearsay information customarily relied on by experts in the practice of their professions may be admitted and relied upon as a legitimate accumulation of that expert's knowledge. This Court has held:

"There can be no hard and fast rule as to the quantum of knowledge required to qualify a witness as an expert in a given field. It has been...

To continue reading

Request your trial
45 cases
  • Everroad v. State
    • United States
    • Indiana Appellate Court
    • 15 Abril 1991
    ... ... This claim is based on the affidavits of two (2) jurors. Although as a general rule a juror may not impeach his own verdict, Bixler v. State (1984), Ind., 471 N.E.2d 1093, 1098, cert. denied, 474 U.S. 834, 106 S.Ct. 106, 88 L.Ed.2d 86, a juror's affidavit may be considered where, ... ...
  • Lopez v. State
    • United States
    • Indiana Supreme Court
    • 6 Septiembre 1988
    ... ... Bixler v. State (1984), Ind., 471 N.E.2d 1093, 1102-03, cert. denied (1985), 474 U.S. 834, 106 S.Ct. 106, 88 L.Ed.2d 86; Maldonado v. State (1976), 265 ... ...
  • Meisberger v. State, 53A01-9307-CR-243
    • United States
    • Indiana Appellate Court
    • 26 Septiembre 1994
    ... ... Page 720 ... practice of his profession may be admitted and relied upon as the legitimate accumulation of that expert's knowledge. Bixler v. State (1984), Ind., 471 N.E.2d 1093, 1099, cert. denied, 474 U.S. 834, 106 S.Ct. 106, 88 L.Ed.2d 86. When the factual content of a medical ... ...
  • Vaughn v. Daniels Co.(West Virginia), Inc.
    • United States
    • Indiana Appellate Court
    • 4 Noviembre 2002
    ... ... See Bixler v. State, 471 N.E.2d 1093, 1099-1100 (Ind.1984) (holding that reliance on hearsay information ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT