Kiper v. State

• Decision Date: 03 March 1983
• Docket Number: No. 381S90,381S90
• Parties: David C. KIPER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1353

445 N.E.2d 1353

David C. KIPER, Appellant, v. STATE of Indiana, Appellee.

No. 381S90.

Supreme Court of Indiana.

March 3, 1983.

Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant David C. Kiper was found guilty by a jury of burglary resulting in bodily injury, attempted rape while armed with a deadly weapon, and battery resulting in bodily injury. He was subsequently sentenced by the Warrick Superior Court to concurrent terms of 25 years for the burglary, 25 years for the attempted rape and one (1) year for the battery. Appellant now directly appeals and raises the following issues for our consideration:

1. whether Appellant's convictions were supported by sufficient evidence;

2. whether the trial court erred by denying Appellant's Motion to Discharge Jury Panel and Motion to Change Court Bailiff; and

3. whether the trial court erred by giving certain instructions.

The evidence adduced during Appellant's trial shows that on June 14, 1980, the victim, J.K., lived with her two children in an apartment in Newburgh, Indiana. Since the air-conditioner in her apartment was not functioning that night, J.K. had several windows open including one with a ripped screen. Just before dawn, someone rang J.K.'s doorbell and knocked on the door. J.K. awoke and looked through the peephole in the door to find a stranger standing there. The man later peered through the window with the ripped screen. When he finally left, J.K. shut and locked said window. She then watched the man get into a greenish-blue compact station wagon which was parked directly across from J.K.'s apartment. By way of a police conducted photo-showup, J.K. later identified Appellant Kiper as the man at her door. She further identified a picture of his car as the vehicle parked across from her apartment. J.K. watched Kiper drive to a nearby apartment building. He appeared to be checking the various nameplates as if he were looking for someone in particular. J.K. went back to bed and back to sleep. She was again awakened by her doorbell and loud knocking on her door. It was Kiper. J.K. asked him who he was. Kiper responded that he was looking for Sherry Barnhill. J.K. told him that Barnhill lived downstairs. When J.K. heard knocking downstairs, she went back to bed and to sleep. J.K. was awakened a third time by Kiper standing next to her bed, completely nude except for his socks. Kiper previously had been wearing an orange and white striped shirt. J.K. subsequently found this shirt on her living room floor. J.K. asked Kiper what he was doing in her home. He said he would leave but nonetheless told J.K. to be quiet. J.K. demanded several times that Kiper leave which he did not do. When J.K. reached for her phone, Kiper grabbed a white-handled butcher knife from the top of a nearby cabinet and cut the telephone wire. J.K. tried to stop him but cut her finger on the knife. The knife did not belong to J.K.. J.K. attempted to pound on the wall to alert her neighbors but Kiper began hitting her with his fist. Kiper told her that he was going to have sexual intercourse with her and that she was going to perform fellatio on him. He threatened her with the knife. J.K. told Kiper he was "crazy" and fought him off. Kiper continued to beat J.K. on her face with his fist, causing her nose to bleed. He tore off her blouse and climbed on top of her. At this juncture, J.K.'s minor son came into the bedroom and Kiper told him to leave. J.K. told her son to stay so that he could see what was going on. J.K. finally kicked Kiper with both feet forcing him to fall into a chest of drawers and into a closet. J.K. thereupon ran out of her bedroom and to her front door. J.K. unlocked the latch-lock and attempted to open the door only to discover that Kiper apparently had attached the chain lock. J.K. looked back to notice Kiper quickly putting his jeans on. J.K. jerked the door open, causing the wooden door frame to splinter. She then ran to the neighboring apartment of Wes Mitchell.

Mitchell testified that he was awakened by J.K.'s screaming and banging on his door. She was nude from her waist up and was bleeding from her nose. Mitchell further testified that when he looked outside, he saw a man wearing blue jeans but no shirt run from J.K.'s apartment and around the south end of J.K.'s building. Mitchell took J.K. in, gathered her children and called the police. Mitchell's wife substantiated his testimony. Another neighbor, Elmer Lant, testified that he noticed a man walking around J.K.'s apartment complex who fit the description given to him by the investigating police officers. Lant honked his auto horn which prompted the man to run away. Lant called the police. Through Lant's help, Kiper was subsequently apprehended in the vicinity of J.K.'s apartment complex. Carolyn Lant, Elmer's sister-in-law, testified that she noticed a man fitting Kiper's description hiding in the thicket near where she lived. She watched him as he walked out of the thicket and onto an adjacent highway where he attempted to hitchhike a ride. Being unsuccessful, he went back into the thicket. Still another neighbor, Sherry Key, nee Barnhill, testified that someone opened a closed window to burglarize her apartment while she and her children were away on June 14. The burglar stole a white-handled butcher knife. She also testified that her former husband was Kiper's cousin. The emergency room physician who attended J.K. at St. Mary's Hospital testified that J.K. had bruises on her back, on her breasts and around one eye. Two of her teeth were broken and had to be removed. There also was testimony that Kiper was seen drinking heavily in a local tavern during the evening of June 13.

I

Appellant now claims that there was insufficient evidence to sustain the jury verdicts adjudging him guilty of the instant crimes. On appeal, this Court will neither judge the credibility of witnesses nor reweigh the evidence. We will consider only that evidence most favorable to the State, together with all reasonable and logical inferences drawn therefrom. When substantial evidence of probative value is found to support the jury's verdicts, a conviction will not be set aside. Neice v. State, (1981) Ind., 421 N.E.2d 1109, reh. denied; Cowans v. State, (1980) Ind., 412 N.E.2d 54. Appellant's arguments do no more than point out alleged conflicts in the evidence pertaining to Appellant's purported intoxication while committing these criminal acts. In Appellant's view, the jury should have believed his intoxication defense. We hold that there was ample direct evidence to justify the jury in finding Appellant guilty beyond a reasonable doubt of all of the crimes for which he was convicted. Munsey v. State, (1981) Ind., 421 N.E.2d 1115, Cowans, supra.

II

Prior to commencing voir dire of the jury, Appellant filed a Motion to Discharge Jury Panel and a Motion to Change Court Bailiff. Said Motions were filed because the trial court's bailiff, Jean Mahon, was discovered to be the mother-in-law of Michael Phillips, the law partner of S. Anthony Long, the Warrick County Prosecuting Attorney. Appellant asserted that he may be prejudiced by the relationship between the bailiff and the prosecutor since the bailiff has direct contact with the jury. Moreover, he asserted that this relationship constituted an appearance of impropriety. The trial judge denied both Motions. Appellant and the State both agreed that the prosecutor's law partner had nothing to do with the prosecution of criminal cases. Both parties also agreed that Appellant neither knew of any specific wrongdoing by the bailiff nor anticipated any specific wrongdoing.

Appellant gives no authority for his position. He states that while he has attempted to research the issues presented by this situation, he has not found a single relevant case and therefore believes that his instant appeal presents a case of first impression in Indiana. The State agrees. No matter what status this case has, the pertinent rule of law is well established. If wrongdoing by any member of a trial court's staff or by any member of a jury prejudices a defendant by denying that defendant a fair and impartial trial, then a trial judge commits reversible error by failing to remedy the wrongful situation. No such prejudice is shown here, however. Appellant concedes that there was no wrongdoing by the bailiff or jury and that none was expected. Furthermore, bailiff's relationship to the prosecutor was not so close as to infer her partiality or potential complicity. The record shows that during voir dire, Appellant's counsel did not question any of the jurors on whether or not they knew about the bailiff, the bailiff's relationship to the prosecutor's civil law partner or the possible or actual prejudice that such relationship might have on their judgment of the case. Appellant's counsel also did not ever question the bailiff as to whether her relationship with the prosecutor's civil law partner would interfere with her official duties and her handling of the jury. In fact, Appellant accepted the jury after his extensive voir dire of them and therefore waived any objection he had to the jury as it was constituted at that time. Boone v. State, (1978) 267 Ind. 493, 371 N.E.2d 708; Grigsby v. State, (1978) 267 Ind. 465, 371 N.E.2d 384.

III

The State tendered the following as its proposed Final Instruction Number 2:

"The Court further instructs you that you should not indulge in purely speculative doubts, and the bare possibility that the defendant may be innocent does not raise a reasonable doubt. The question of defendant's guilt must be determined by each of you in view of your obligation to act honestly and fairly in weighing the evidence and reaching a decision which your oath...