Jarvis v. State
| Citation | 441 N.E.2d 1 |
| Decision Date | 26 October 1982 |
| Docket Number | No. 481S96,481S96 |
| Parties | Milton David JARVIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Donald E. Transki, Michigan City, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of murder in the First Degree, Ind.Code Sec. 35-13-4-1 (Burns 1975), and sentenced to life imprisonment. This direct appeal presents the following issues:
(1) Whether the trial court erred in overruling Defendant's motions for a continuance and for a mistrial.
(2) Whether the trial court erred in not granting a mistrial in response to the Prosecutor's comments during his opening statement.
(3) Whether the trial court erred in admitting four photographs of the victim into evidence.
(4) Whether the trial court erred in admitting a photographic array into evidence.
(5) Whether the trial court erred in allowing an accomplice to relate evidence of other unrelated crimes.
(6) Whether the trial court erred in limiting Defendant's cross-examination of the accomplice.
(7) Whether the trial court erred in allowing a State's witness to read a deposition to the jury.
(8) Whether the trial court erred in allowing a witness to testify.
(9) Whether the trial court erred in refusing to examine the jurors to determine if they had been exposed to publicity about the trial.
* * *
* * *
Before the beginning of the second day of jury selection, the parties met in the trial court's chambers. Defendant presented Exhibit A, a page of August 26, 1980 Michigan City News-Dispatch which contained two articles. One entitled, "Jury surprised by result of 'tossup' verdict" lies directly above another entitled, "Jury selection under way in murder trial." The first article contained quotations of one Blumenfeld who had sat as a juror in the prior case and who was also on the panel in the case before us, which was the subject of the second article. Defense counsel also stated to the judge that the case had been mentioned on a radio station that morning. Defendant requested a continuance to obtain "an exact copy of what had been recited over the radio * * * " and moved for a mistrial " * * * for the publicity that I think has already affected our ability to get a fair and impartial jury in the trial of this cause." After hearing from the State, the trial court removed Blumenfeld for cause and examined the prospective jurors to determine if any of them had been exposed to the News-Dispatch article, to an article in the LaPorte Herald-Argus, or to the radio broadcast. Defendant was also allowed to examine the prospective jurors.
The prospective jurors fell into two groups, those who had been in court the day before and had been admonished and those who had arrived for the first time that morning and consequently had not been admonished.
The admonished group consisted of ten persons, who were examined individually by the trial court and defense counsel. Six had neither seen either of the articles nor heard the broadcast, two had seen only the News-Dispatch article but had deliberately avoided reading it, in obedience to the admonition; and two others were excused for cause based upon their responses.
The unadmonished group consisted of four prospective jurors, Nicholson, Rhodes, Dickey, and Wade. Juror Wade had seen only the article in the Herald-Argus and when asked if he had formulated an opinion about the case he responded, "Well, it sounded pretty cut and dried as far as I was concerned." He was promptly excused. Defendant did not object at that time, even though the other three jurors had heard the comment. Shortly thereafter, during the examination of Juror Nicholson, the State approached the bench, and thereafter, the trial court examined the prospective jurors individually rather than as a group. Juror Dickey had seen only the Herald-Argus article and had heard the radio broadcast and was excused. Juror Rhodes had skimmed only the News-Dispatch article but did not remember any of it. See Davis v. State, (1979) Ind.App., 397 N.E.2d 301, 303. The trial court asked her about Juror Wade's comment to which she replied, "Just seemed kind of unfair for him to say it." Juror Nicholson had read only the News-Dispatch article. Defense counsel questioned her about her recollection of the article, which recollection was vague.
Defendant then sought a continuance in order to obtain the texts of the Herald-Argus article and the radio broadcast. However, the prospective jurors who had, at that time, been exposed to these items were excused, thus, there was no need for the information at that time; hence the need for a continuance was speculative, at best.
Defendant's initial motion for a mistrial was premature. The trial court could not possibly have known about the prospective jurors' exposure to news reports until he examined them. Lindsey v. State, (1973) 260 Ind. 351, 357, 295 N.E.2d 819, 823 (quoting Harris v. State, (1967) 249 Ind. 681, 694-95, 231 N.E.2d 800, 807).
When Defendant renewed the motion after the examination, he changed his grounds:
" * * * Further, in my motion for mistrial, I think this jury is so badly contaminated now by what has happened that it is going to be impossible to select a jury for the trial of this cause. * * *." (R. at 348)
Defendant's comments referred to Juror Wade's comment as evidenced by the following:
"MR. TRANSKI: Your Honor, I think all these people that were here when this gentleman said it's a cut and dried case are contaminated and should not be on the panel." (R. at 352).
Jurors Nicholson and Rhodes had seen the News-Dispatch article but not the Herald-Argus article. Juror Wade's conclusion was drawn from reading the Herald-Argus article. Consequently, Jurors Nicholson and Rhodes did not know the basis for Juror Wade's statement, and nothing in the record shows that they were influenced by it. The burden was upon Defendant to show that Nicholson and Rhodes could not remain impartial after hearing Wade's comment or reading the News-Dispatch article. Irvin v. Dowd, (1961) 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751, 766; Atkinson v. State, (1980) Ind.App., 411 N.E.2d 651, 653. He did not ask Nicholson or Rhodes any question similar to that posed by the trial court which drew Juror Rhodes' aforementioned response, "Just seemed kind of unfair for him to say it."
The selection of the jury continued with an additional group of prospective jurors. Of this group, only three who had been exposed to the reports served, Jerndt and Iler who served as alternates, and Vankosky, who served as a regular. Defendant has not indicated that either of the alternates participated in the deliberations.
Under questioning, alternates Isler and Jerndt stated unequivocally that they would not be influenced by what they had read or heard; and Juror Vankosky stated that he had read the Herald-Argus article but did not remember its contents.
After the examination of the additional prospective jurors, Defendant again renewed his motions for a continuance and a mistrial, both of which were denied. The record discloses nothing which merited the grant of either a mistrial or a continuance. Drollinger v. State, (1980) Ind., 408 N.E.2d 1228, 1234-35.
Prior to trial, the trial court granted Defendant's motion in limine as follows:
" * * * the court now grants that motion to the effect that the State of Indiana is not to mention, refer to, interject or attempt to convey to the jury in any manner, directly or indirectly, the fact the defendant in the case, Milton David Jarvis, had committed prior crimes, without first obtaining permission from the court out of the presence and hearing of the jury to discuss the introduction of any such evidence. * * *." (R. at 99)
During his opening statement, the Prosecutor mentioned that the evidence would show that on November 8, 1976 Ronald Griffin and his partner, the defendant, began to travel the interstate highways. He explained that the two ran a scam at automobile service stations, for some fourteen (14) months, in which one would divert the attention of the attendant and the other The granting of Defendant's motion in limine was not a final ruling upon the admissibility of the evidence it covered. Lagenour v. State, (1978) 268 Ind. 441, 450, 376 N.E.2d 475, 481. Thus, if the evidence were admissible at trial, as we find in Issue V, infra, the Prosecutor's comments were harmless error. Cf. Bennett v. State, (1981) Ind., 423 N.E.2d 588, 591 ().
would steal the money. In the case at bar the scam had not worked, and had resulted in the attendant's murder. Defendant, making no objection at that time, allowed the Prosecutor to finish his opening statement and then moved for a mistrial on the ground that the state had violated the aforementioned motion in limine. The trial court took the matter under advisement and after a colloquy about the admissibility of this asserted evidence of other crimes, determined that the evidence would be admissible and that the violation of the motion in limine was, therefore, harmless error. The court also admonished the Prosecutor to seek its permission before bringing the evidence into trial.
Under this heading, Defendant combines two issues concerning his objections to the admission into evidence of four color photographs of the victim, State's Exhibits 1, 2, 3 and 7. Exhibits 1, 2 and 3 show the wounds inflicted upon the victim. Exhibit 7 depicts the body of the victim as it was found in the service station washroom. Defendant contends that these pictures aroused the passions of the jury. He adds that he offered to stipulate to whatever could be proved by the photographs.
At trial, when Exhibits 1-3 were offered, Def...
To continue reading
Request your trial
-
Johnson v. State
...475. To preserve error an objection must be properly raised at trial when the evidence sought to be excluded is introduced. Jarvis v. State, (1982) Ind., 441 N.E.2d 1; Jones v. State, (1981) Ind., 425 N.E.2d 128. Officer Canal testified to information obtained from Detective Deal without ob......
-
Iseton v. State
...court's discretion, and its ruling on such a request cannot be reversed except upon a showing of an abuse of its discretion. Jarvis v. State, 441 N.E.2d 1 (Ind.1982); Thomas v. State, 423 N.E.2d 682 A finding of unavailability can be implicit in the trial court's admission of the deposition......
-
Dudley v. State
...are inadmissible for purposes of impeachment, Lewis' parole violation was evidence properly withheld from the jury. Jarvis v. State, (1982) Ind., 441 N.E.2d 1. Appellants argue, in the alternative, that these witnesses fell within exceptions to the general rule stated in Ashton. However, Ap......
-
Arnold v. State
...a witness cannot be impeached by proof of particular extraneous acts of misconduct which are not reduced to convictions. Jarvis v. State, (1982) Ind., 441 N.E.2d 1; Chambers v. State, (1979) 271 Ind. 357, 392 N.E.2d 1156; Swan v. State, (1978) 268 Ind. 317, 375 N.E.2d 198. Furthermore, only......