Brown v. State

• Decision Date: 14 December 1983
• Docket Number: No. 583S166,583S166
• Citation: 457 N.E.2d 179
• Parties: Kevin Tyrone BROWN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 179

457 N.E.2d 179

Kevin Tyrone BROWN, Appellant, v. STATE of Indiana, Appellee.

No. 583S166.

Supreme Court of Indiana.

Dec. 14, 1983.

Patrick E. Chavis, III, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen Ransom Radford, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was tried by a jury on Count I, Attempted Murder, I.C. Sec. 35-42-1-1 and IC Sec. 35-41-5-1 [Burns 1979], and Count II, Robbery, IC Sec. 35-42-5-1 [Burns 1979]. At the first of two trials, the jury was deadlocked. The trial judge released the hung jury and ordered a new trial. The jury at the second trial found appellant guilty on both counts. The court sentenced him to forty-two (42) years imprisonment for each count and ordered the sentences to run concurrently.

Appellant concedes the waiver of the first seven issues raised in his brief. We have consolidated the remaining issues to address the question of whether the trial court erred in determining the jury had reached a unanimous verdict. The gist of appellant's argument is that, although the jury returned a written verdict form finding appellant guilty, the subsequent polling of the jury revealed the verdict was not unanimous. He contends juror number one indicated her dissent to the verdict during polling, and that the verdict is therefore defective.

At the time of appellant's trial, the procedure for ensuring the unanimity of a verdict was set out in IC Sec. 34-1-21-9, as made applicable to criminal proceedings by IC Sec. 35-4.1-2-2 (repealed by Acts 1981, P.L. 298, Sec. 9).

"When the jury have agreed upon their verdict, it must be reduced to writing and signed by the foreman; and when returned into court, the foreman shall deliver the verdict, and either party may poll the jury. If any juror dissent [sic] the verdict, they shall again be sent out to deliberate." IC Sec. 34-1-21-9.

The object of the poll is to give the parties an opportunity to ascertain with certainty that a unanimous verdict has been reached before the verdict is recorded and the jury discharged. See Miranda v. United States, (1st Cir.1958) 255 F.2d 9, 17. It is essential to the effective exercise of defendant's right to poll the jury that defense counsel carefully observe the response of each juror upon being asked, "Is this your verdict?" Just as the right to poll may be waived by failing to request same, or by failing to object to the judge's refusal to conduct the poll, Joy v. State, (1860) 14 Ind. 139; Short v. State, (1878) 63 Ind. 376, any errors allegedly occurring at the polling may be waived.

Appellant was represented by counsel at the trial and during the polling of the jury. Counsel at no time objected to any discrepancy between the jurors' written verdict and their responses upon being asked individually.

At the sentencing hearing, appellant, in the presence of counsel, was asked by the judge if he had any legal cause or reasons why judgment should not be pronounced. He gave no reason. However, in his Motion to Correct Error, the question is raised for the first time. The affidavits of juror number one, and Brenda J. Bowles, attorney...