Dyer v. State, 1--675A102
| Citation | 342 N.E.2d 671,168 Ind.App. 278 |
| Decision Date | 04 March 1976 |
| Docket Number | No. 1--675A102,1--675A102 |
| Parties | Robert DYER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Court of Appeals of Indiana |
Michael E. Hunt, Monroe County Public Defender, for appellant.
Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Robert Dyer (Dyer) and Ricky Lazzell were charged on October 9, 1974 in Monroe County, Indiana, by information in two counts with the offenses of first degree burglary 1 and automobile banditry. 2
Both defendants pleaded not guilty on October 15, 1974 and filed their notice of alibi on November 7, 1974. On November 8, 1974 the State filed answer to the notice of alibi. The cause was tried to a jury which found each defendant guilty of both counts, after which the court timely entered its judgment against Dyer on Count 2 of the jury's verdict and sentenced him to the Indiana Department of Corrections for a period of not less than one years nor more than five years.
FACTS OF THE CASE: the sheriff's office from inside.
The evidence most favorable to the State 15 1/2 years, accompanied Dyer and Ricky Lazzell to the Terry Spicer Auto Sales lot across the street from the Tom O'Daniel Ford dealership. The three left the Spicer lot in a green 1966 Ford driven by Ricky Lazzell and proceeded to a rural mobile home near Bloomington owned by Mr. and Mrs. Robert Rogers, where Dyer and Lazzell, after determining there was no one at home, entered the home and carried personal property thereform and placed it in the truck of the Lazzell car while Hardy sat and watched. Between 1:30 P.M. and 2:15 P.M. on October 8, 1974, the lady of the house and her daughter drove up and shortly thereafter Hardy ran and Dyer and Lazzell also ran out the back door of the mobile home as the daughter was calling the sheriffhs office from inside.
ALIBI:
The alibi placed defendants at the Terry Spicer car lot in Bloomington at 12:45 P.M. Nicky Hardy was with them. At 1:35 Robert Dyer and Nicky Hardy left the car lot and arrived at Dyer's home near Kirksville at 1:45. Hardy did not stop but Robert Dyer remained there until 2:00 P.M. at which time he left and drove to 1023 North Jackson in Bloomington, the home of his in-laws, arriving at 2:20 P.M. At 2:30 P.M. Ricky Lazzell left Terry Spicer's lot after having been there since about 12:45 P.M.
The State's answer to Notice of Alibi was that the State would prove the offense occurred between 1:30 P.M. and 2:15 P.M. on October 8, 1974; that the call reporting the crime to the Monroe County Police Department was received at 2:15 P.M. on October 8, 1974.
ALIBI EVIDENCE:
Steve Dyer, brother of appellant Dyer, testified as an alibi witness that at about 1:20 on the day of the crime he was in the body shop of the Tom O'Daniel Ford dealership where he could look across at Spicer's lot and that he observed Robert Dyer leaving Spicer's auto lot in a green 1966 Ford with Nicky Hardy driving the same and Robert Dyer was a passenger; that at around 2:20 P.M. on the same afternoon he observed Ricky Lazzell still at Terry Spicer's auto lot.
MISCONDUCT OF JUROR:
Appellant Dyer secured the affidavits of three jurors, together with an affidavit of the public defender which were filed with Dyer's motion to correct errors.
The affidavit of juror Gerald R. Smith was to the effect that on November 13, 1974, the second day of the trial, at lunch time he went to the O'Daniel Ford dealership out of curiosity for the purpose of determining the actual distances involved and to confirm in his own mind that the alibi witness's testimony could be true. He further said 'that while he was there he did observe the distance from the Tom O'Daniel ramp to Terry Spicer's auto lot and did observe that one could see from the ramp area in order to test the accuracy of his memory--based on prior knowledge and on testimony during the trial--as to the distances involved.' He did not talk with anyone during this visit but he did during jury deliberations, prior to reaching of a verdict, mention his trip to the O'Daniel Ford dealership in regard to the testimony of Steve Dyer. A fellow juror raised a question of what could be seen from the O'Daniel ramp and he responded that the perception of Mr. Dyer from that ramp would have been possible but that a considerable distance was involved. He further stated the visit to O'Daniel Ford had no measurable effect on his decision to find the defendants guilty and was of the opinion that the verdict of the jury would have been the same had he never mentioned his visit to O'Daniel Ford.
Juror Marilyn Kay Etnier made her affidavit that after the cause had been submitted to the jury and before the jury had reached its verdict a male juror mentioned his visit to O'Daniel Ford during the lunch break in relation to the testimony of Steve Dyer and that discussion had no effect on her acquiescence in the verdict. Juror John B. Misheikis filed an identical affidavit.
David Paul Allen, a legal intern in the Public Defender's office acting as assistant counsel in the trial of this cause, made an affidavit that in the month of January, 1975, he contacted jurors in response to Ricky Lazzell's suspicion of a discussion between deputy prosecutors which took place outside the court room during a recess and which was thought to have been overheard by a juror. He determined there was no truth in that rumor but verified his statement that juror Gerald Ralph Smith had made the visit to O'Daniel Ford in regard to testimony of Steve Dyer; that neither he nor either of the defendants had any knowledge or suspicion of Mr. Smith's conduct prior to January.
ISSUES PRESENTED FOR REVIEW:
Appellant Dyer charges that he was denied a fair trial by the jury's misconduct in that:
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