Johnson v. State

• Decision Date: 29 November 1977
• Docket Number: No. 976S281,976S281
• Citation: 369 N.E.2d 623,267 Ind. 256
• Parties: Robert A. JOHNSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 623

369 N.E.2d 623

267 Ind. 256

Robert A. JOHNSON, Appellant, v. STATE of Indiana, Appellee.

No. 976S281.

Supreme Court of Indiana.

Nov. 29, 1977.

Michael T. Conway, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with first degree murder. Trial by jury resulted in a conviction for second degree murder. The record discloses the following facts: Appellant and the decedent, William Moore, had a disagreement which resulted in the appellant and one, James Herriman, going to Moore's apartment after the appellant had told Moore that he was going to "blow his brains out." Upon arriving at the apartment Moore and the appellant argued further, whereupon the appellant struck Moore in the face with his pistol. Moore's wife handed him a towel to wipe the blood from his face. As she walked away she heard a shot. She turned around and saw appellant with a gun in his hand, pointed at Moore's head. Herriman did not see the appellant shoot Moore but observed appellant with the gun immediately after the shot.

During the course of the trial the State introduced the coroner's report of the death of William Moore. The appellant objected on grounds of hearsay and improper certification. He now claims it was reversible error for his objection to be overruled. This situation is governed by the recent case of Eldridge v. State (1977), Ind., 361 N.E.2d 155, in which this Court held that TR. 44(A)(1), which is applicable to criminal trials through CR. 21, permits the admission of public records when they are attested as true and complete copies by the officer having legal custody or his deputy. In the case at bar the coroner's report was fully certified by the deputy coroner who attested that he was the lawful custodian of the records. The trial court needed no further proof of authenticity of the report. There was no error in its admission into evidence.

Appellant twice moved for, and was denied, a mistrial when he was observed in shackles by the jury. On appeal he claims this inflamed and unduly prejudiced the jury against him. The decision of whether a mistrial is to be granted rests within the sound discretion of the trial judge. His decision in this regard will be reversed only if an abuse of discretion is shown. Ballard v. State (1974), 262 Ind. 482, 318 N.E.2d 798. In the case of Jessup v. State (1971), 256 Ind. 409, 269 N.E.2d 374, this Court held:

". . . with the nature of the offense of which the appellant stood charged, we hold the trial court was well within the exercise of his sound discretion in permitting the Reformatory guards to bring the appellant into the court room in handcuffs and restraining chain and not to remove these items from appellant's person until he was safely inside the court room. . . . In addition to the fact that their restraint was justified under the trial court's sound discretion, it could hardly be argued that the jury received any additional suggestion or inference from the fact that the persons appeared in the court room under heavy guard. We observe there is no merit to appellant's contention that he was seen in the halls of the court house by jurors at a time when he was handcuffed while being transported from the court room to the Reformatory. It would be unrealistic indeed especially in view of our above observations to hold that it was reversible error for jurors to observe the transportation of an inmate of a penal institution through a public hall in a shackled condition. We, therefore, hold the trial court did not err in permitting both the appellant and his witnesses to be brought into the court room handcuffed and chained." 256 Ind. at 412-13, 269 N.E.2d at 376.

In the case at bar appellant was charged with first degree murder. A reasonable jury could expect him to be in police custody. We fail to see how he was harmed by being seen in handcuffs. The trial court did not commit error in refusing to grant a mistrial for that reason.

Appellant's third contention is that the trial court erred in allowing the alternate juror to listen to the deliberations in the jury room, although he was instructed by the trial judge not to participate in the deliberations. IC 1971, 35-1-37-4 forbids communication by the jury with any other person. However an alternate juror is in every respect a juror. Turczi v. State (1973), 261 Ind. 273, 301 N.E.2d 752. He has been accepted through voir dire examination and has been with the jury throughout the trial of the case, receiving and being required to observe the various admonitions of the trial judge as to jury behavior. At any time during the trial or deliberations the alternate juror may immediately take the place of one of the original twelve jurors and function as fully as any other member of the jury. Thus he should not be considered as a stranger to the jury or an outsider who should not be permitted to be in the presence of the original twelve jurors during their deliberations. There is no more a presumption that the alternate juror would favor conviction than that he would favor acquittal. We therefore hold that the alternate juror may, in the discretion of the trial court, be sent with the original twelve jurors to the jury room during their deliberation so long as the trial court properly instructs him that he is not to participate in the deliberation unless it becomes necessary for him to replace one of the original twelve jurors. Such an instruction was given in this case. It therefore was not error for the alternate juror to accompany the original twelve jurors when they entered upon their deliberation.

The final allegation of error is that the evidence is insufficient to support the verdict. First appellant claims there is no evidence to prove he actually killed William Moore. However appellant himself testified that he fired the shot which caused Moore's death, although he claims that it was an accident. Additionally, two other witnesses, Harriman and the deceased's wife, testified as to their observations of appellant immediately after the shot was fired. The coroner's report showed the cause of death to be a bullet wound. Appellant also argues there is a lack of evidence showing malice and purpose on the part of appellant. Malice and purpose may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or great bodily harm. Booth v. State (1976), Ind., 352 N.E.2d 726. In the case at bar appellant was wielding the pistol and acting in a violent manner immediately before the shot was fired. Even though appellant claims the shot was fired accidentally it is within the province of the jury to believe or disbelieve whomever they choose. This Court will not disturb the jury's findings of fact so long as there is evidence in the record to support those findings. Williams v. State (1976), Ind., 346 N.E.2d 579. The record in the case at bar contains sufficient facts as above recited to support the findings of the jury.

The judgment of the trial court is affirmed.

DeBRULER and PRENTICE, JJ., concur.

HUNTER, J., concurs in opinion as to all issues, except the alternate juror issue.

PIVARNIK, J., dissents with opinion in which HUNTER, J., concurs on the issue of the alternate juror only.

PIVARNIK, Justice, dissenting.

I respectfully dissent from the majority opinion in this case. I would reverse this conviction on the basis of the trial court's order to the alternate juror to be present during deliberations of the jury.

The record shows that appellant objected to the trial court's directive to the alternate juror, and was overruled. The alternate juror then sat in on the entire final deliberations. Appellant did not ask the court for an examination of the jury after the verdict, to determine any possible prejudice. The instruction of the trial court to the alternate juror, at the time of the impanelling of the jury was as follows:

"You will retire with the jury. But unless, and until, we excuse a juror and you are directed to actively serve, you are not to vote or participate in the deliberations. You should, however, listen, so that should you be called upon to serve, you will have the benefit of the preceding discussions."

In essence, appellant's argument is that the presence of the alternate juror during the entire deliberations was inherently, and immeasurably, prejudicial. The argument is that even if there was no verbal communication between the alternate juror and the others, gestures and expressions of the alternate juror as he listened to the jury would have naturally followed, and subtly communicated the alternate's feelings. The state's argument, on the other hand, is that since appellant did not request an examination of the jury after the verdict, to determine any improper influences, no prejudice is shown.

In searching for a principle which governs the present situation, I would note first the early case of Rickard v. State, (1881) 74 Ind. 275. During the jury deliberations in that case, the bailiff at all times had access to the jury room and remained there during a large portion of the time. Holding that the presence of the bailiff with the jury was reversible error, the court quoted from The People v. Knapp, (1879) 42 Mich. 267, 3 N.W. 927:

"Whether he (the officer) does or does not converse with them (the jury), his presence to some extent must operate as a restraint upon their proper freedom of...