Gibbens v. State

• Decision Date: 26 April 1982
• Docket Number: No. 681S158,681S158
• Citation: 434 N.E.2d 82
• Parties: Kenneth GIBBENS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 82

434 N.E.2d 82

Kenneth GIBBENS, Appellant, v. STATE of Indiana, Appellee.

No. 681S158.

Supreme Court of Indiana.

April 26, 1982.

Walter E. Bravard, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On January 6, 1981, Kenneth Gibbens was found guilty by a jury of Burglary resulting in Bodily Injury, a Class A Felony, Ind.Code § 35-43-2-1 (Burns Repl. 1979); Robbery resulting in Bodily Injury, a Class A Felony, Ind.Code § 35-42-5-1 (Burns Repl.1979); and two counts of Criminal Confinement, a Class B Felony, Ind.Code § 35-42-3-3 (Burns Supp.1981). He was also found to be an Habitual Offender. Gibbens was sentenced to imprisonment for thirty (30) years on Count I, Burglary; thirty (30) years on Count II, Robbery; ten (10) years on Count III, Confinement; ten (10) years on Count IV, Confinement; and thirty (30) years for being an habitual criminal. Counts I and II are to be served consecutively, Counts III and IV to be served concurrently with the first two counts. The thirty (30) years for being an habitual criminal are to be served consecutively to Counts I through IV. Gibbens appeals.

Three errors are asserted by defendant, concerning: (1) whether the trial court erred in handling defendant's allegation of prejudicial newspaper publicity; (2) whether the evidence was sufficient to support the jury's verdict; and (3) whether it was reversible error for the trial court not to instruct the jury concerning the penalty to be imposed for the habitual criminal count.

Mr. and Mrs. Cass were an elderly couple who had employed defendant Gibbens to do housework for them in their home in northeastern Indianapolis. Defendant had worked for Mr. and Mrs. Cass for a period from one to two years prior to the crime. Two witnesses testified that they were friends of defendant and that defendant had asked each of them to help him burglarize the victim's home.

Mrs. Cass testified that she had encountered the defendant in Ayres Tea Room about three weeks prior to the crime and at that time she noticed that he was wearing a pair of unusual bright blue trousers. Mrs. Cass had talked to defendant and his friend at that time and defendant's friend recalled that one of the statements Mrs. Cass had made to defendant was: "Oh, Ken, I'd know your voice anywhere."

Mr. and Mrs. Cass slept in separate bedrooms. On March 24, 1980, after Mr. and Mrs. Cass had retired and were sleeping, the defendant kicked open the door of Mrs. Cass' bedroom. He had a mask on his face. Mrs. Cass testified that she recognized the intruder immediately because he aimed a shotgun at her and said: "I want your money; I want your jewelry and I want your diamonds and pearls." Mrs. Cass said she recognized Gibbens' voice and also noticed he was wearing the same bright blue trousers she had seen him wear in Ayres three weeks before. In addition, he had a certain "bouncy" walk that she recognized. The shotgun he had was one that belonged to Mr. Cass. Defendant then rolled Mrs. Cass over on her stomach and pulled her arms behind her back, placing his knee in the small of her back, and tied her arms behind her. In the process he broke three of Mrs. Cass' ribs. He then reached under Mrs. Cass' pillow and removed her pistol. Mrs. Cass testified at trial that defendant Gibbens knew she kept a pistol there.

Defendant also accosted Mr. Cass in his bedroom. When defendant burst into Mr. Cass' bedroom, Mr. Cass was awakened and grabbed at the defendant. Gibbens knocked Mr. Cass down on the bed, tied him up and placed a sack over his head. Mr. Cass said he could not see what was going on after that but he was struck on the head with some object. There was evidence that at least one other person accompanied defendant and they ransacked the home, taking many items of value, including jewelry and a coin collection belonging to Mr. Cass. Mr. Cass estimated the value of the property taken at $125,000 to $175,000. The perpetrators also drove off in the victims' automobile. Robert Schneider, a dealer in scrap silver and gold, testified that he purchased a quantity of gold and silver items from the defendant. These items were identified as being taken from the Cass residence. Mr. Schneider also testified that he received receipts from the items delivered to him by the defendant, which the defendant had signed. A handwriting expert compared the signature on the receipts with a handwriting exemplar provided by the defendant pursuant to court order. The expert testified that Gibbens signed the receipts. Also testifying at the trial were acquaintances of the defendant who testified he attempted to induce them to establish a false alibi for him on the night of the burglary but they declined to do so.

I.

After the jurors had deliberated for some time, they notified the bailiff that they had reached a verdict and were ready to return it into open court. At this point, defendant's attorney notified the court that he became aware that the Indianapolis Star had published a story that morning about the progress of defendant's trial. The last two paragraphs of the article indicated that if the defendant is found guilty he will also face an habitual criminal charge because he had been convicted of previous crimes similar to the ones with which he was charged here. He then moved the court to have the jury interrogated to determine whether or not any of the jurors had read the article and, if so, whether or not such publicity was likely to prejudice their verdicts. The trial court denied the motion and allowed the jury to come in and return its verdicts.

Defendant relies for his assignment of error on our holding in Lindsey v. State, (1973) 260 Ind. 351, 295 N.E.2d 819. In that case the rule had been established that whenever prejudicial newspaper publicity is brought to the attention of the trial court the trial court must interrogate jurors to determine the extent to which the jurors were exposed to the publicity and the likelihood of resultant prejudice. Id. at 358, 295 N.E.2d at 824. This rule has been upheld more recently in cases involving publicity that was not necessarily written communication. Chambers v. State, (1981) Ind., 422 N.E.2d 1198; Ferguson v. State, (1980) Ind., 403 N.E.2d 1373.

Appellant stated that the article in the Star had not been seen by him until after the jury had left to deliberate and at about 3:30 in the afternoon. He therefore stated that he could not have raised the issue before the morning session started. He did not, however, raise the question before the court until the court advised counsel that the jury was about to return with its verdict. The newspaper article was never placed in the record, however, either in the trial court or before this Court. The record contains only the bare assertion of defense counsel that such an article appeared. Therefore, neither the trial court nor this Court can assess the likelihood of resultant prejudice. Sanders v. State, (1981) Ind., 428 N.E.2d 23, 27.

Furthermore, it appears the State's position is well taken that if any error was committed by the court in its ruling here, it would be harmless error in view of the overwhelming evidence of guilt that was presented to the jury. See Pettit v. State, (1979) Ind., 396 N.E.2d 126 (bad quality of audio recording held to be harmless error because of direct and overwhelming evidence of defendant's guilt). As we have pointed out above, the evidence shows that one of the victims was acquainted with defendant and identified him by his voice, the manner in which he walked and the unusual trousers he was wearing; he was...