Childers v. State
Decision Date | 16 July 1980 |
Docket Number | No. 3-879A221,3-879A221 |
Citation | 408 N.E.2d 1284 |
Parties | Lois Ruth CHILDERS, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Appellate Court |
Jay T. Seeger, Robert A. Mucker, John R. Gambs, Heide, Gambs & Mucker, Lafayette, for appellant.
Theodore L. Sendak, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.
You must, however, all agree on the same one of the three parts you find the Defendant guilty of.
If you all agree that the Defendant is not guilty of all three parts or cannot all agree on which one of the three parts the Defendant is guilty of, you cannot return a verdict of guilty of Involuntary Manslaughter.
I direct your attention to the word "or" appearing at the end of the first part and the end of the second part."
Childers contends that the trial court's communication with the jury which concerned her substantive rights and which took place outside her presence without a waiver of her right to be present was a violation of her constitutional rights and constitutes reversible error.
The trial court committed error in communicating with the jury in Childers' absence. It is well settled that a defendant has a constitutional right to be present at all stages of the criminal proceeding. Foster v. State (1977), 267 Ind. 79, 367 N.E.2d 1088; Harris v. State (1967), 249 Ind. 681, 231 N.E.2d 800; Decker v. State (1979), Ind.App., 386 N.E.2d 192; Constitution of Indiana, art. I, § 13. Furthermore, as pointed out in Harris, defense counsel cannot waive this right on behalf of an accused. 231 N.E.2d 804. However, communication with the jury in the defendant's absence is not per se reversible error. While the denial of a defendant's constitutional right to be present raises an inference of prejudice, such inference can be rebutted by the state and the error held to be harmless. Foster v. State, supra ; Harris v. State, supra.
In Foster, the trial judge's response that he could not answer the jury's question and that the jury must base its verdict solely on the evidence presented at trial was found to be harmless error beyond a reasonable doubt. Likewise, in Harris, the trial court's questioning of the jury as to its ability to reach a verdict was held to be non-prejudicial to the defendant.
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Averhart v. State
...to notify the parties and give them an opportunity to be present in court before he communicates with the jury. In Childers v. State, (1980) Ind.App., 408 N.E.2d 1284, it was held not reversible error per se for the court to fail to have the defendant present when he makes his response to t......
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Gallagher v. State
...a right to be present during the deposition because it constituted a critical stage in the proceedings against him. Childers v. State, (1980) Ind.App., 408 N.E.2d 1284. We have found no Indiana case that provides a defendant the right to be present at a deposition taken prior to the actual ......
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Ridley v. State
...rebutted by the State and may be harmless. James, 613 N.E.2d at 24; Harris, 249 Ind. at 690-92, 231 N.E.2d at 805-06; Childers v. State, 408 N.E.2d 1284 (Ind.Ct.App.1980). None of the proceedings at issue in the current case, however, occurred in the presence of the jury. Each concerned mat......