Gibson v. State, 55A05-9704-CR-152

• Decision Date: 28 April 1998
• Docket Number: No. 55A05-9704-CR-152,55A05-9704-CR-152
• Parties: Michael A. GIBSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 748

694 N.E.2d 748

Michael A. GIBSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 55A05-9704-CR-152.

Court of Appeals of Indiana.

April 28, 1998.

Transfer Granted July 8, 1998.

Brian H. Williams, Martinsville, for appellant-defendant.

Jeffrey A. Modisett, Attorney General, Katherine L. Modesitt, Deputy Attorney General, Indianapolis, for appellee-plaintiff.

OPINION

SHARPNACK, Chief Judge.

Michael A. Gibson appeals his convictions for attempted murder, two counts of conspiracy to commit murder, and burglary resulting in bodily injury, all class A felonies. He raises eight issues for our review. However, because the first issue is dispositive, we will address it first and then address only those remaining issues that are likely to be presented upon retrial. These issues are restated as follows:

1) whether the trial court erred when it responded to the jury's request during deliberations for certain exhibits by sending back to the jury all of the trial exhibits;

2) whether the trial court erroneously instructed the jury on the elements of attempted murder;

3) whether the trial court erroneously denied his motion to suppress his initial statement to police because the investigator failed to tape record the statement;

4) whether the trial court erroneously permitted the State to amend its charging information prior to trial; and

5) whether the trial court erroneously refused to give his tendered instruction concerning the voluntariness of his statements to police.

We reverse.

The facts most favorable to the judgment follow. On the evening of March 25, 1996, Gibson told Wesley Seger that he wanted to kill Elba and Michelle Davis because they had set him up on a drug deal. In the early morning of March 26, 1996, Gibson, Seger, and Jeremy Kirkley, each armed with two knives, went to the Davis' house. Gibson, Seger, and Kirkley entered the house where Cora Davis, Paul Brown, and Cora's three year old son, Zachary, were sleeping. Seger stabbed Cora. Brown wrestled with Gibson and was also stabbed. After Gibson escaped from Brown, Brown began to struggle with Seger and Seger stabbed Brown in the chest.

The State charged Gibson with attempted murder, two counts of conspiracy to commit murder, and burglary resulting in bodily injury. A jury later found Gibson guilty as charged. Other relevant facts will be supplied as needed.

I.

The dispositive issue raised for our review is whether the trial court erred when it responded to the jury's request for certain exhibits by supplying the jury with all of the exhibits admitted at trial. After jury deliberations had begun, the jury sent two questions to the trial court. The first question involved the definition of murder. The second was a request for all of the photographic exhibits presented at trial. The trial court attempted to contact counsel but was unsuccessful because counsel were at lunch. Prior to the return of counsel, the trial court instructed the bailiff to provide the jury with all of the trial exhibits rather than the specific photographic exhibits requested in the jury's second question. After counsel returned, the trial court informed them of what it had done. Gibson's counsel objected to the trial court's response and then moved for a mistrial, which the trial court denied.

Gibson maintains that the trial court failed to follow the proper procedure set forth in Ind.Code § 34-1-21-6 in responding to the jury's request. This section provides as follows:

"After the jury have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their attorneys."

I.C. § 34-1-21-6. Gibson asserts that the trial court committed error first because it responded to the jury's request without notice to the parties and, second, because the evidence was not presented to the jury in open court as required by the express language of this section.

The State counters that I.C. § 34-1-21-6 does not apply to the facts of this case because application of the statute is triggered only when "there is a disagreement between [the jurors] as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case." I.C. § 34-1-21-6. The State contends that the jury's request for the photographic exhibits in the present case did not express any disagreement as to these exhibits.

Our review of the case law in this area reveals that different panels of this court have expressed opposing views on the applicability of this statute. In Jones v. State, this court held that jury requests to review exhibits are not within the scope of the statute absent an express indication of disagreement. Jones v. State, 656 N.E.2d 303, 307 (Ind.Ct.App.1995), trans. denied; see also Sturma v. State, 683 N.E.2d 606, 609 (Ind.Ct.App.1997); State v. Chandler, 673 N.E.2d 482, 485 (Ind.Ct.App.1996).

However, in State v. Winters, we stated that "juries may manifest disagreement about testimony by requesting to rehear it. Indeed we question why a jury that was in agreement as to the testimony at issue would request to rehear it." State v. Winters, 678 N.E.2d 405, 409 (Ind.Ct.App.1997) (citations omitted). Based on this reasoning, we held that a jury's request to rehear a portion of a tape recording presented at trial was sufficient to manifest disagreement as to that particular evidence and that, as a result, the trial court's failure to follow the procedure in I.C. § 34-1-21-6 was reversible error. Winters, 678 N.E.2d at 410; see also Anglin v. State, 680 N.E.2d 883, 885 (Ind.Ct.App.1997) (holding that "when a jury requests that it be given an opportunity to rehear testimony or see exhibits for a second time, the jury is expressing disagreement or confusion about that evidence, sufficient to trigger application of I.C. 34-1-21-6, unless the circumstances surrounding the request indicate otherwise."), reh'g denied, trans. denied.

While we agree that the jury's request for the exhibits in this case did not expressly indicate any disagreement, we adopt the view expressed in Winters that a request for particular pieces of evidence suggests disagreement with respect to that evidence. To the contrary, one panel of this court recently stated that to conclude that any request from the jury to view exhibits or rehear testimony necessarily stems from disagreement "is to engage in an impermissible judicial revision of the statute." Riggs v. State, 689 N.E.2d 460, 463 (Ind.Ct.App.1997). We disagree with such a narrow interpretation of the statute. ¹

We are not convinced that requiring express disagreement in the jury's request fully serves the purpose of the statute. The reasonable interpretation of a request to review exhibits is that there is, at minimum, some question about the exhibits. It is unlikely that a jury will request to see exhibits when there are no questions or confusion as to what the exhibits contain or convey or the testimony regarding them. This is particularly true of photographic exhibits which are generally demonstrative and serve to illustrate the testimony about what is depicted in the exhibits. Furthermore, the application of the statute should not be triggered by the chance that a jury will expressly state the reason why they wish to review the exhibits, as they often do not. Our view is that any request for specific exhibits or testimony indicates disagreement for the purposes of the statute "unless the circumstances surrounding the request indicate otherwise." ² Anglin v. State, 680 N.E.2d at 885. Therefore, we conclude that the jury's request for the photographic exhibits in this case sufficiently suggests disagreement about the exhibits such that it triggered the application of I.C. § 34-1-21-6.

Here, the trial court responded to the jury's request prior to notification of the parties as required by the statute. Further, the trial court allowed the jury to review the exhibits unsupervised which is also contrary to the statute. However, considering that the trial court sent all of the trial exhibits rather than the specific exhibits requested and that jury had previously viewed all of these exhibits in open court during trial, we see little risk that the jury would misuse or give undue weight to particular exhibits. As such, we are initially inclined to hold that, despite failure to comply with the statute, the trial court's error was harmless because Gibson has failed to demonstrate any prejudice. See Jones, 656 N.E.2d at 307 (holding that there was no reversible error where, after receiving a question on a point of law from the jury, the trial court sent the complete set of instructions to the jury without notifying the parties as required by the statute because the defendant failed to show any prejudice); Ingram v. State, 547 N.E.2d 823, 829 (Ind.1989) (holding no reversible error was committed by the trial court where the trial court sent all of the trial exhibits to the jury room after the jury requested certain photographic exhibits because the defendant failed to show an abuse of discretion).

However, the supreme court's holding in Powell v. State appears to preclude such a holding. In Powell, a deadlocked jury requested a tape recorder and three audiotapes of telephone conversations and alleged drug transactions so that it could review this evidence in the jury room. Over the defendant's objection, the trial court complied with the jury's request. The Powell court noted that I.C. § 34-1-21-6 required the tapes to be played in open court. Id. at 858. After concluding that a defendant's right to procedural protections of the statute was a "substantial" right, the court held that the trial court's failure to follow the statute was reversible...