Gann v. State
Decision Date | 24 June 1975 |
Docket Number | No. 274S43,274S43 |
Citation | 330 N.E.2d 88,263 Ind. 297 |
Parties | Curtis Wayne GANN, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Jack Rogers, Franklin, Frank E. Spencer, Indianapolis R. M. Gholston, Franklin, for appellant.
Theodore L. Sendak, Atty. Gen. of Indiana, Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.
A jury convicted Appellant of First Degree Murder. Appellant's Motion to Correct Errors set out thirty (30) alleged errors. However, in this appeal, taken pursuant to Rule A.P. 4(A)(7), Appellant argues only ten (10) of these issues. Furthermore, one of these grounds is the denial of Appellant's tendered Instruction No. 17. Rule C.R. 8 states that 'no party shall be entitled to predicate error upon the refusal of a trial court to give any tendered instruction in excess of the number fixed by this rule (10) or the number fixed by the court order, whichever is greater.' Since the trial court allotted no additional instructions, this ground is not available to Appellant. We proceed to a consideration of the nine (9) remaining issues.
Appellant tendered the following Instruction No. 10 and the trial court refused to give same.
Instead, the trial court gave the following as Preliminary Instruction no. 10:
Appellant argues that his instruction should have replaced the court's. The court's instruction is a correct statement of the law with regard to premeditation and adequately covers the law of the tendered instruction. Cooper v. State, (1974) Ind., 309 N.E.2d 807; Sanders v. State, (1972) 259 Ind. 43, 284 N.E.2d 751; Pierce v. State, (1970) 253 Ind. 650, 256 N.E.2d 557.
(A) The remaining nine (9) issues raised by Appellant may be considered as a group. In their entirety and separately these allegations assert that Appellant was denied a fair trial by irregularities in the conduct of the jury and the court's bailiff. Specifically, Appellant alleges that he was prejudiced by each of the following events:
(1) One juror had notes which she had made overnight at her home for her own use during deliberation.
(2) In regard to the use and disposition of these notes the bailiff transmitted directions from the trial judge to the jury without the knowledge or presence of the defendant.
(3) Moreover, the bailiff misled the jury by directing them in a manner not authorized by the trial judge.
(4) In violation of IC 1971, 35--1--37--4 (Burns' Ind.Stat.Ann. § 9--1810 (1956 Repl.)) the bailiff conversed with the jurors at lunch.
(5) The bailiff allowed the jury to separate during a drive to lunch and during a coke break.
(6) The bailiff allowed the jurors to converse with the waitress during lunch.
A hearing was held on the Motion to Correct Errors. Eight jurors and the bailiff testified at this hearing. At this hearing there was no testimony which indicated that the Appellant was harmed by any of the alleged irregularities. Misbehavior or irregularity on the part of a juror must--in order to warrant a new trial--be gross and it must be shown to have probably injured the accused. IC 1971, 35--1--42--3 (Burns' Ind.Stat.Ann. § 9--1903(3)); Oldham v. State, (1967) 249 Ind. 301, 231 N.E.2d 791; Hatfield v. State, (1962) 243 Ind. 279, 183 N.E.2d 198. At the hearing on the Motion to Correct Errors the state affirmatively showed that the separation of the jury did no harm to the defendant because nothing of a prejudicial nature occurred during the separations. Therefore, it was proper to refuse a new trial. Gibson v. State, (1971) 257 Ind. 23, 271 N.E.2d 706; Riley v. State, (1884) 95 Ind. 446. These same principles apply to the incidents of conversation. Upon examination we find that the conversation with the waitress covered the matter of giving food orders and the lunchtime conversation between bailiff and juror involved vegetable gardens. No prejudicial act was done.
Similarly, prejudice must be shown when the jury takes documents into its deliberations. Posey v. State, (1955) 234 Ind. 696, 131 N.E.2d 145; McClanahan v. State, (1954) 233 Ind. 365, 118 N.E.2d 734. The juror who had the notes testified that she made these simple notes at home without communication to or from another person. The other jurors testified that the existence of these notes did not affect their deliberations or their individual decisions. We think that what we have said on the closely related matter of juror note-taking at trial is applicable to...
To continue reading
Request your trial-
Bruce v. State, s. 1075
...... an irregularity such as this occurs harm will be presumed, and if the irregularity is not explained, a reversal of the judgment should follow." Gann v. State, (1975) 263 Ind. 297, 301-302, 330 N.E.2d 88, 92; Frasier v. State, (1974) 262 Ind. 59, 68, 312 N.E.2d 77, 81; Conrad v. Tomlinson, (1972) ......
-
Stephenson v. State, 87S00-9605-DP-398.
...... Gann v. State, 263 Ind. 297, 300-1, 330 N.E.2d 88, 91 (1975) . Thus, we have determined that both circumstancesÔÇötaking notes during trial and ......
-
Decker v. State, 2-877-A-331
...... Gann v. State (1975), 263 Ind. 297, 330 N.E.2d 88, (the bailiff, at the court's direction, merely told the jury to continue deliberation). Frasier v. ......
-
Norton v. State, 377S185
...... We stated in Gann v. State, (1975) 263 Ind. 297, 300, 330 N.E.2d 88, 91: "Misbehavior or irregularity on the part of a juror must in order to warrant a new trial be ......