Cornett v. State
| Decision Date | 03 June 1982 |
| Docket Number | No. 580S150,580S150 |
| Citation | 436 N.E.2d 765 |
| Parties | Timothy Wayne CORNETT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Lowell E. Enslen, William T. Enslen, Hammond, for appellant.
Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of Rape, Ind.Code § 35-42-4-1 (Burns 1979), and sentenced to eleven (11) years imprisonment. We reverse.
After deliberations had commenced, the jury foreman, through the Bailiff, requested the trial court's Final Instructions. Over Defendant's timely objection and request that the instructions should be reread, the trial court sent the instructions to the juryroom for use during the remainder of deliberations. As an appendix to this opinion we have attached the photocopies of eight (8) of the twenty-six (26) Final Instructions in order to illustrate the written forms in which they appeared to the jury.
Final Instructions 1 and 2 contain a heading and the verbatim instruction. Instructions 1-4 and 23-26 follow this pattern.
Several preliminary instructions were renumbered and given as Final Instructions 14-18. Final Instruction 15 follows this pattern.
Final Instructions 6-10, 12, 19, and 20 appear in the form similar to Final Instruction 6. Each contains a heading, "Defendant's Instruction No. ____," the file stamp of the trial court, the signature of the trial judge, and the labels, "Given: ", "Refused: ", and "Given as Modified: " with a check next to "Given: ." From these documents the jury learned the source of several instructions and gained the opportunity to speculate about the order in which Defendant wanted his instructions read. The jurors may also have speculated about which of "Defendant's Instruction No. ____" the trial court had omitted and why they were omitted.
The remaining Final Instructions, 11, 13, 21 and 22 are reproduced in the appendix. With the exception of No. 22 they follow In Indiana the accepted practice is not to allow the jurors to take the written instructions with them into the juryroom. Mullins v. Bunch, (1981) Ind., 425 N.E.2d 164, 166; Purdy v. State, (1977) 267 Ind. 282, 288, 369 N.E.2d 633, 636; Ballard v. State, (1974) 262 Ind. 482, 497, 318 N.E.2d 798, 807; Martin v. State, (1973) 260 Ind. 490, 495-96, 296 N.E.2d 793, 797. Where the instructions were read in open court in the presence of the defendant and his attorney, we have found a violation of the above rule to be harmless error. Rock v. State, (1981) Ind., 426 N.E.2d 1320, 1322; Wofford v. State, (1979) Ind., 394 N.E.2d 100, 106; Morris v. State, (1979) Ind., 384 N.E.2d 1022, 1024; Inman v. State, (1978) Ind., 383 N.E.2d 820, 824, cert. denied, (1979) 444 U.S. 855, 100 S.Ct. 114, 62 L.Ed.2d 74; Jameison v. State, (1978) 268 Ind. 599, 602, 377 N.E.2d 404, 406; Sanders v. State, (1976) 264 Ind. 688, 692, 348 N.E.2d 642, 644.
the same pattern described above except that the check mark appears next to "Given as Modified: " and a portion of the text of the instruction bears a mark. Instruction 22 is unique in that it is footnoted. While the record shows, "Court gives final instructions to the jury as follows, to-wit: Instructions numbered 1 through 26 inclusive;" we cannot be certain that the trial court actually read these footnotes to the jury. The record does not contain the remainder of footnote 2 or all of footnote 3.
The State submits that since the Final Instructions were read in open court in the presence of Defendant and his counsel, any error in sending the instructions to the jury room must be deemed harmless. This proffered syllogism overlooks a key distinction between the case at bar and the above cited cases where we found harmless error. In the case at bar the instructions were sent, not along with the jurors as they moved from the courtroom to the juryroom, but after deliberations had commenced and at the request of the jury foreman. In a line of decisions beginning with Lewis v. State, (1981) Ind., 424 N.E.2d 107, we have stated the procedure to follow in responding to any type of problem occasioned by inquiry from the jurors during deliberations:
"The proper procedure is for the court to call the jury back into open court in the presence of all of the parties and their counsel, if they desire to be there, and to reread all instructions given to them prior to their deliberations, without emphasis on any of them and without further comment." Id. at 111.
Lewis confronted the potential problems which inhere in the giving of an "Allen...
To continue reading
Request your trial
-
State v. Covert
...Indiana, the accepted practice is not to allow the jurors to take the written instructions with them into the jury room. Cornett [v. State], 436 N.E.2d 765 [(Ind. 1982)]. However, the trial court has discretion to send the entire body of written instructions to the jury "cleansed" of extran......
-
People v. Cavanaugh
...prejudicial effect of sending written instructions with retiring jury in criminal case, 91 A.L.R.3d 382 (1979). Contra, Cornett v. State, 436 N.E.2d 765 (Ind.1982).6 In the present case, the trial court instructed:"You should consider all the instructions as a connected series, which togeth......
-
Coleman v. State
...it. The accepted practice is not to allow jurors to take the written instructions with them into the jury room. Cornett v. State, (1982) Ind., 436 N.E.2d 765, 766 and cases cited therein. However, when the instructions were read in open court in the presence of defendant and his attorney, a......
-
Reynolds v. State
...instructions given to them prior to their deliberations, without emphasis on any of them and without further comment. Cornett v. State, (1982) Ind., 436 N.E.2d 765, 766; Crowdus v. State, (1982) Ind., 431 N.E.2d 796, 798; Wallace v. State, (1981) Ind., 426 N.E.2d 34, 36; Lewis v. State, (19......