Bowen v. State, 46A05-9506-CR-202

• Decision Date: 20 September 1996
• Docket Number: No. 46A05-9506-CR-202,46A05-9506-CR-202
• Citation: 671 N.E.2d 1182
• Court: Indiana Appellate Court
• Parties: Raymond K. BOWEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

Page 1182

671 N.E.2d 1182

Raymond K. BOWEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 46A05-9506-CR-202.

Court of Appeals of Indiana.

Sept. 20, 1996.

Transfer Granted Nov. 26, 1996.

Susan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, for appellant-defendant.

Pamela Carter, Attorney General of Indiana, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for appellee-plaintiff.

SHARPNACK, Chief Judge.

Raymond K. Bowen appeals his conviction for burglary, a class C felony. Bowen raises the following three issues for our review which we restate as:

(1) whether the trial court denied Bowen a fair trial when it instructed any juror who might favor an acquittal to "consider whether the doubt in his mind is a reasonable one, when it makes no impression on so many jurors who are equally honest, who have heard the same evidence, and who are equally sworn to arrive at the truth";

(2) whether the trial court erroneously instructed the jury as to the elements of burglary; and

(3) whether the prosecutor's closing arguments suggested to the jury that it may consider Bowen's prior convictions as evidence of Bowen's propensity to commit the crime charged.

We reverse and remand.

The facts most favorable to the conviction follow. On June 27, 1991, Bowen and Terry Clark broke a window of the Fair Muffler building and then entered through it. Police officers were dispatched to the scene after the men inadvertently activated the silent alarm. Both men were taken into custody.

On June 28, 1991, the State charged Bowen with one count of burglary pursuant to Ind.Code § 35-43-2-1. After a jury trial beginning on May 19, 1992, the jury found Bowen guilty of burglary. On July 13, 1992, the trial court conducted a sentencing hearing and sentenced Bowen to eight years. After further procedural activity not relevant to our review, Bowen filed this appeal.

I.

The first issue for our review is whether the trial court erred by reading final instruction 16 to the jury. Bowen argues that the use of this instruction was erroneous because it denied him the right to a fair trial, the right to a unanimous jury, and the right to equal protection.

Before addressing the merits of this argument, we note that Bowen failed to object to the instruction at trial. Generally, failure to object to an instruction at trial waives appellate review of the issue. England v. State, 530 N.E.2d 100, 102 (Ind.1988). Nevertheless, the issue may be addressed if the error asserted constitutes fundamental error. James v. State, 613 N.E.2d 15, 25 (Ind.1993). Fundamental error is error that is a "substantial blatant violation of basic principles rendering the trial unfair to the defendant." Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994); see Faulisi v. State, 602 N.E.2d 1032, 1038 (Ind.Ct.App.1992), trans. denied (defining fundamental error as error so blatant and prejudicial that if not corrected would deny the defendant due process). The appellant has the burden of proving that the error is fundamental. Townsend, 632 N.E.2d at 730.

Bowen alleges that the trial court committed fundamental error. ¹ Bowen claims that the instruction violated his right to a fair trial under the federal and state constitutions because: (1) the instruction urged the jury to consider facts outside the evidence and the arguments presented at trial; (2) the instruction violated his right to an impartial judge and jury; (3) the instruction diluted his presumption of innocence; and (4) the instruction invaded the province of the jury as the sole judge of his innocence or guilt. Bowen also argues that the instruction violated his right to have his guilt determined by a unanimous jury as guaranteed by Indiana Constitution. Finally, Bowen argues that the instruction denied him the right to equal protection pursuant to the state and federal constitutions.

During the trial, the judge gave the following final instruction to the jury:

"Each juror's verdict must be his/her own and it should not be made out of a need to agree with everyone else. Yet, in order to bring twelve minds to the same decision, jurors have to respect and listen to one another's opinions honestly.

A juror who disagrees with the others, should consider whether the doubt in his mind is a reasonable one, when it makes no impression on so many jurors who are equally honest, who have heard the same evidence, and who are equally sworn to arrive at the truth. You do not have to give up conscientious conclusion, but it is your duty to be absolutely just to the people of the State of Indiana and to RAYMOND BOWEN.

In summary then, you should remember these two rules when you disagree with the other jurors:

1) Respect and consider the opinions of other jurors;

2) But in the end, reach your own decision."

Record, p. 86 (emphasis added).

Bowen challenges this instruction, which he characterizes as an "Allen" charge. The "Allen" charge, a designation attributed to the supplemental charge given by a trial judge to an apparently deadlocked jury, is so named after the first major case which considered the charge, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Lewis v. State, 424 N.E.2d 107, 109 (Ind.1981), reh'g denied. Although the content of supplemental instructions varies from the substance of the instruction considered in Allen, collectively the charges are referred to as "Allen charges." ² See Lewis, 424 N.E.2d at 109. While it is within the trial court's discretion whether to give an "Allen" charge, as an appellate court, we must determine the correctness of the charge by considering the facts of the case and the exact words used in the instruction. Guffey v. State, 179 Ind.App. 503, 508, 386 N.E.2d 692, 696 (1979). "It is when the trial court judges embellish the thrust of the [original Allen] charge that the potential for reversible error occurs." Id. The primary question to be resolved when an "Allen" type instruction is challenged is whether the trial court abused its discretion by "unduly commenting on, or giving emphasis to, certain matters of evidence by mandating a jury to act and deliberate in a certain manner or by intimidating the minority jurors into voting with the majority in order to reach a conclusion of the case, even though they might feel inclined to decide the case otherwise." Lewis, 424 N.E.2d at 109. The greatest potential harm of an "Allen" type instruction is that it contains an appeal to the jurors holding the minority position to reconsider their viewpoint in light of the majority's stance. Id.

In this appeal, the parties dispute whether instruction 16 constituted an "Allen" charge. Most of the caselaw which addresses "Allen" charges involves instances where the trial court read a supplemental instruction to a reportedly deadlocked jury. See, e.g., Bailey v. State, 669 N.E.2d 972 (Ind.1996); Guffey, 386 N.E.2d at 695; Capitol Builders, Inc. v. Shipley, 455 N.E.2d 1135 (Ind.1983); Crowdus v. State, 431 N.E.2d 796 (Ind.1982). Because the instruction here was given before deliberations began rather than after the jury reported a deadlock, the line of cases addressing the "Allen" charge is not directly applicable. See Broadus v. State, 487 N.E.2d 1298, 1303-1304 (Ind.1986) (holding harmless the use of a "modified" "Allen" charge as given with the initial set of instructions). Notwithstanding this determination, we find that the use of the instruction constituted fundamental error because it denied Bowen the right to an impartial jury and, therefore, requires reversal of his conviction.

A defendant has a right to a fair trial under both our state and the federal constitutions. U.S. CONST. amends. V, XIV; IND. CONST. art. I, § 12, 13. The right to fair trial necessarily includes the right to an impartial judge and jury. Kennedy v. State, 258 Ind. 211, 280 N.E.2d 611, 615 (1972). A trial judge must maintain an impartial manner and must refrain from any actions indicating any position other than strict impartiality. Gordon v. State, 645 N.E.2d 25, 27 (Ind.Ct.App.1995), reh'g denied, trans. denied; Brannum v. State, 267 Ind. 51, 54, 366 N.E.2d 1180, 1182 (1977). Our supreme court has noted the influence that a judge has over a jury as follows:

"A jury of laymen will often have an awesome respect for the institution of the American trial judge. This can lead them to accord great and perhaps decisive significance to the judge's every word and intimation. It is therefore essential that the judge refrain from any actions indicating any position other than strict impartiality."

Kennedy, 280 N.E.2d at 620-621 (discussing the boundaries of a trial judge's authority to interrogate a witness). We find that the instruction here has two features which denied Bowen the impartiality guaranteed to him as part of the right to a fair trial.

First, the instruction calls on a juror who has a reasonable doubt and who would favor an acquittal to reconsider that position while not similarly calling on a juror who favors a conviction to reconsider that position. It is interesting that the language of the challenged instruction here closely parallels that portion of the original Allen charge which was addressed to the minority of the jurors having a reasonable doubt: "if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself." Allen, 164 U.S. at 501, 17 S.Ct. at 157. However, unlike the present instruction, the Allen instruction also directed the minority jurors favoring a conviction to "ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority [of jurors seeking an acquittal]." Id. The instruction here is one-sided and against the defendant because it contains an appeal...