Frances v. State, 372S32

• Decision Date: 11 September 1974
• Docket Number: No. 372S32,372S32
• Citation: 316 N.E.2d 364,262 Ind. 353
• Court: Indiana Supreme Court
• Parties: Kenneth FRANCES, also known as Kenneth Francis, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

Page 364

316 N.E.2d 364

262 Ind. 353

Kenneth FRANCES, also known as Kenneth Francis, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 372S32.

Supreme Court of Indiana.

Sept. 11, 1974.

H. Harold Soshnick, Charles T. Bate, Shelbyville, Melville E. Watson, Greenfield, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice. ^*

This is an appeal by Kenneth Frances from a conviction of first degree murder. Appellant was charged with first degree murder by the Wayne County Grand Jury on June 16, 1970. The case was subsequently venued to the Hancock Superior Court. Appellant was tried by jury and found guilty on October 6, 1971. This appeal followed.

The appellant raises several issues on appeal, which will be discussed in depth below.

Appellant first argued that he was deprived of a fair trial by the action of the trial court in excusing a tentatively selected juror over appellant's counsel's objection. Appellant finds error in the trial court's excusing of the juror in an ex parte manner, outside the presence of appellant and his counsel. Furthermore, appellant contends that the court's action was arbitrary.

We find appellant's argument to be without merit. On the first day of the voir dire, Ula M. Carrier was tentatively accepted as a juror. At the opening of court on the second day, the trial court advised the parties that he had excused Mrs. Carrier for the reason that she had to appear in the Marion Municipal Court to answer a criminal charge. We believe the trial court's actions were proper.

The excusing of prospective jurors on a trial court's own motion is within the sound discretion of the court. Glenn v. State (1972), Ind.App., 290 N.E.2d 103. Furthermore, an abuse of discretion will only result when some kind of actual injury or prejudice is visited upon a defendant. Glenn v. State, supra.

The appellant has failed to demonstrate that he has in any way been harmed by the unseating of Mrs. Carrier and the seating of her replacement. Although the better practice would be to excuse the juror in a defendant's presence, under these circumstances we can find no grounds for reversal. The trial court excused a prospective juror for a very sound reason--reason which would have required the juror's discharge irrespective of the appellant's presence.

Appellant next contends that the trial court erred in overruling the appellant's motion for a mistrial and erred in refusing to strike the prospective venire of eleven members. A prospective juror, in response to questions posed by the prosecutor, stated that he was born and raised in Fountain City, the scene of the crime. The prosecutor further inquired: 'Now from what you've read about this case, have you formed an opinion as to the guilt of innocence of the defendant?' The prospective juror responded by saying: 'Well, if I would assume from what I've been told, I would say that he was probably guilty.'

The trial court overruled appellant's motion but sustained a challenge for cause pursuant to IC 1971, 35--1--30--4 (Ind.Ann.Stat. § 9--1504). The judge then went on to admonish the remainder of the jurors 'to disregard any statements made by the prospective juror.'

We believe that the trial court acted properly in this regard. This Court has often stated that the granting of mistrials rests largely within the sound discretion of the trial judge. Duke v. State (1968), 249 Ind. 466, 233 N.E.2d 159; White v. State (1971), Ind., 272 N.E.2d 312. Absent an abuse of that discretion, namely facts or circumstances indicating that the appellant was significantly prejudiced to the extent that the possibility of a fair trial was substantially subverted, we will not disturb the trial court's decision. We are unable to discern any serious injury suffered by the appellant, particularly in light of the curative action taken by the trial court. We must remind the appellant that he is entitled to a fair trial, not a perfect one. We believe that essential fairness and jury impartiality were preserved as best as possible by the trial court.

Appellant argues that he was deprived of a fair trial due to the alleged misconduct of the prosecutor. That alleged misconduct was the following statement made by the prosecutor during his opening statement: '. . . the defense has the opportunity and may make an opening statement.' The appellant totally fails to establish in any way how such a statement impaired his right to a fair trial and, thus, we find such an allegation frivolous at best.

Appellant contends that his rights against self-incrimination and counsel were violated by his being fingerprinted the second time outside the presence of his court-appointed lawyer. This Court has consistently held that the right to counsel attaches at the critical stages of criminal proceedings. Clearly, fingerprinting, being a perfunctory, administrative procedure, is not such a critical stage. This Court and the United States Supreme Court have both held that fairly presented photographic identifications are not a critical stage of the proceedings. See Sawyer v. State (1973), Ind., 298 N.E.2d 440 and United States v. Ash (1973), 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619. Moreover, the United States Supreme Court in Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, held that the taking of a handwriting exemplar was not a critical stage of the proceeding entitling the accused to counsel. The taking of handwriting exemplars, like fingerprinting, is a simple jailhouse procedure for which legal counsel is not required.

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