Cape v. State

• Decision Date: 20 February 1980
• Docket Number: No. 379S77,379S77
• Citation: 272 Ind. 609,400 N.E.2d 161
• Parties: Daniel CAPE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 161

400 N.E.2d 161

272 Ind. 609

Daniel CAPE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 379S77.

Supreme Court of Indiana.

Feb. 20, 1980.

John R. Politan, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Terry G. Duga, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Daniel Cape, was convicted by a jury of burglary, a class A felony, Ind.Code § 35-43-2-1 (Burns 1979); robbery, a class A felony, Ind.Code § 35-42-5-1 (Burns 1979); and rape, a class A felony, Ind.Code § 35-42-4-1 (Burns 1979). He was sentenced to a determinate term of imprisonment of thirty years on each count and raises several issues on appeal. However, due to our disposition of this case on defendant's first allegation of error, we need only consider the following two issues:

1. Whether it was reversible error to allow the jury to listen to the replaying of prior testimony while the defendant was not present; and

2. Whether there was sufficient evidence to support defendant's conviction of robbery as a class A felony.

A summary of the facts from the record most favorable to the state reveals that the following incidents took place during the evening of December 1, 1977. The victim, Mrs. P., who was seventy-three years old, was watching television in her home. At approximately 9:00 p. m., the doorbell rang. Mrs. P. went to the door and heard someone call her by name. She undid the larger bolt on her door in order to hear better, and a man hit the door with his shoulder, breaking the door chain and knocking Mrs. P. to the living room floor.

The man, whom Mrs. P. later identified as the defendant, grabbed her, slapped her across the face and started dragging her through the living room. The defendant told her that he wanted her money and that if she did not give him $1,500 he would kill her. Then defendant started choking her and Mrs. P. begged him, "Please don't do this to me." Finally he pushed her onto the floor in the kitchen and raped her. He took her purse and briefcase and jerked the telephone cord out of the wall. During Mrs. P.'s struggle with defendant, a tenant who lived upstairs in the home called the police. They arrived in time to arrest defendant before he could escape. Mrs. P. testified that she was in fear for her life during the attack.

I.

Before the jury retired for their deliberations the trial judge told them that if there was a genuine disagreement as to any portion of important testimony they would be able to come back into court and hear a replay of the tape of the testimony. Then at one point during their deliberations, the jury did ask to hear the testimony of defendant and a defense witness played back to them. The record shows that the jury returned to the courtroom and the court reporter played the requested portions of the testimony for them. The prosecuting attorney was present in the back of the courtroom but neither defendant nor his attorney was present, nor is there any indication in the record of an attempt to notify them. We agree with defendant that this was a violation of his constitutional right to be present at every critical stage of the proceeding against him.

It is fundamental that both the Sixth Amendment of the United States Constitution and our Indiana Constitution, Article 1, § 13 guarantee the right of an accused to be present during his trial. This Court has consistently held that this right includes the right to be present in the courtroom at every stage of the proceedings which requires the presence of the jury. Harris v. State, (1967) 249 Ind. 681, 231 N.E.2d 800; Dean v. State, (1955) 234 Ind. 568, 572, 130 N.E.2d 126, 128. If this right can be waived at all, such waiver should be expressly given by defendant. Miles v. State, (1944) 222 Ind. 312, 53 N.E.2d 779. Defendant in the instant case made no such waiver.

Defendant's attorney has submitted an affidavit stating that he had left his office number with the court, that he was in his office during the period of the jury deliberations, and that neither he nor defendant was called or notified of the jury's request. There is nothing in the record to show whether or not there was any attempt made at this time to notify either defendant or his attorney of the request of the jury. Even our statute which approves the replaying of testimony to the jury expressly states this:

"shall be given in the presence of, or after notice to, the parties or their attorneys." Ind.Code § 34-1-21-6 (Burns 1973).

Therefore, it is inescapable that the trial court committed error in failing to have defendant present at the time the jury heard portions of the trial testimony replayed. It is true that we have held that an allegation of irregularity in a motion for new trial, to the effect that defendant was involuntarily absent from any stage of the proceedings without a waiver, raises a rebuttable presumption that prejudicial error has been committed and that such presumption may be overcome by countervailing affidavits filed by the state. Harris v. State, (1967) 249 Ind. 681, 690-91, 231 N.E.2d 800. However, in this case, no counter affidavits were filed.

The fact that neither defendant nor his counsel was present when the jury heard the replay of the testimony is undisputed; nor is there any denial that both he and his counsel were nearby and readily available to be brought into the courtroom. Therefore, it was reversible error for the trial court to allow the jury to hear a replay of portions of the testimony without the presence of defendant and his counsel. For this reason the judgment of ...