Lindsey v. State

• Decision Date: 11 May 1973
• Docket Number: No. 473S71,473S71
• Parties: Raymond LINDSEY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 819

295 N.E.2d 819

260 Ind. 351

Raymond LINDSEY, Appellant, v. STATE of Indiana, Appellee.

No. 473S71.

Supreme Court of Indiana.

May 11, 1973.

Patrick Brennan, Larry A. Ambler, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

This case is before us on a petition to transfer from the Court of Appeals, Third District, the decision and opinion of said Court having been filed on May 23, 1972 and reported at 282 N.E.2d 854. Rehearing was denied June 20, 1972.

Transfer is hereby granted, and said decision of the Court of Appeals, Third District affirming the trial court is now set aside. The decision of the trial court is reversed and a new trial ordered.

The following alleged errors are assigned:

(1) Refusal of the trial judge to grant a hearing to adjudicate the defendant a criminal sexual psychopath.

(2) Overruling of Defendant's motion for a mistrial predicated upon exposure of the jury to a prejudicial newspaper article.

(3) Overruling of Defendant's motion to suppress identification, such motion being predicated upon an allegedly illegal out of court confrontation.

(1) The defendant (appellant) was charged by way of affidavit with the offense of First Degree Burglary under Acts of 1941, ch. 148, § 4, 1956 Repl.Burns Ind.Stat.Ann. § 10--701(a), IC 1971, 35--13--4--4. The date of the alleged offense was July 3, 1970. The defendant filed a plea of not guilty by reason of insanity and thereafter, on March 15, 1971, filed a motion to be examined as a possible criminal sexual psychopath, under Acts of 1949, ch. 124, §§ 1 thru 4, and Acts of 1959, ch. 356, § 1, 1956 Repl.Burns Ind.Stat.Ann. §§ 9--3401 thru 3404, IC 1971, 35--11--3--1 thru 35--11--3--4, and the court appointed two psychiatrists to examine him and report to the court. On July 11, 1971, the trial court overruled the defendant's request for a hearing to adjudicate the appellant as a criminal sexual psychopath. The aforesaid criminal sexual psychopath act was repealed on April 8, 1971. The defendant contends that the trial court erred in declining to proceed under the criminal sexual psychopath statute, notwithstanding its intervening repeal, inasmuch as it was in effect at the time the alleged crime was committed and the proceedings for such adjudication commenced. We do not meet this issue. At the time of the court's ruling, the defendant merely stood charged with first degree burglary, by breaking and entering, etc. with intent to commit a theft. Where the criminal act charged was not a sex related offense, this Court has held that proceedings under the act were not proper. State ex rel. Savery etc. v. Marion Criminal Ct. etc. (1955), 234 Ind. 632, 130 N.E.2d 128. There being no accusation or inference of any sex offense in the charge, the defendant could not, at that time, have been adjudicated a criminal sexual psychopath. Clearly, the defendant was not within the purview of the act.

(2) At the end of the presentation of the State's case in chief, the cause was continued until the following morning and the jury separated. The following morning the defendant filed a motion for mistrial because of a newspaper article that had appeared the evening before in a local newspaper. ¹ The court acknowledged the impropriety and the inherent risk from the publication and that the defendant was entitled to a mistrial, if it had any effect upon the jury. The comments of the court were as follows:

'And now the defendant files motion for mistrial due to the prejudice created by the news media. I think that we all noticed the story in the paper and which was not based on the evidence in this case. I don't know what it is based upon. I consider it highly improper for the Tribune to publish such a story at this place in the trial. We have two things which we can do here. One is to grant your motion and the other is to complete the trial and on the motion of the created errors if it had any effect on the jury. There is no question but what if it has any effect on this jury that he is entitled to a mistrial.'

The motion for mistrial was denied, and the trial proceeded to a verdict of guilty, after which the court conducted an examination of the jury upon the subject of the article. From this examination, it was disclosed that four of the jurors had had no exposure to the article but that eight had had exposure that varied from mere awareness of the publication, which one juror had by reason of her husband's having mentioned it, to knowledge from having read a portion of it only, to two jurors who had read the entire article. Only these two last mentioned jurors were questioned with respect to whether or not their exposure had influenced their decisions, and they stated, under oath that they were not influenced by the article. Accordingly, the verdict was permitted to stand. At the outset, it should be pointed out that the news article was not factual. Both the headline and the opening paragraph alleged a rape. The defendant was not charged with rape, and although there was testimony from which one might speculate that a rape had been committed, we do not consider a rape to have been in evidence. The article also reported a prior commitment of the defendant for an attack upon another woman several years earlier. Neither was this in evidence. Additionally, the article reported that the prosecuting witness had previously identified the defendant from police 'mug files.' The witness' testimony was that she recognized him when she saw him in person in police custody, but that she could not identify him from the police photographs.

Although we do not here have the kind of intensive and persuasive publicity which was involved in Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and Baniszewski v. State (1970), Ind., 261 N.E.2d 359, and although there has been no showing that the news item prejudiced the jury, we nevertheless, hold that the failure of the trial judge to take remedial action at the proper time was violation of the defendant's constitutional right to a fair trial. We do not alter our position previously taken that jurors need not be absolutely insulated from all extraneous influences regarding the case and that such exposure, without a showing of influence, will not require a new trial. Irvin v. Dowd (supra), Harris v. State (1967), 249 Ind. 681, 231 N.E.2d 800. As said by Justice Hunter in Harris v. State (supra):

'The rule requires much more than a mere speculation that an article was read by a juror and of course the law also requires more than a mere speculation that a juror had read the article and was prejudiced thereby. We agree with the appellee's position that if the appellant's contention were adhered to it would be impossible to convict any criminal whose trial was reported in the newspaper.

Even if appellant had shown that some member of the jury read the article, it is clear that the reading of a newspaper article pertaining to the case by a juror is not grounds for mistrial, new trial or reversal unless it is shown that the jurors were influenced thereby.' 249 Ind. at 694, 695, 231 N.E.2d at 807.

This position was reaffirmed in Napier v. State (1971), 255 Ind. 638, 266 N.E.2d 199. Our concern here, however, is that we have not heretofore set guidelines for the benefit of the trial judges, in determining the likelihood of prejudice resulting through the news media, standards that are consistent with 'fair trial' guaranties. It is not to be concluded that mistrials should be declared upon a showing of any lesser potential for prejudice than now required. Nor do we intend to intimate that trial judges need be intimidated by mere speculation urged by trial counsel seeking delay or tactical advantage by reason of publicity unlikely to contaminate. As aptly stated by Judge Sharp, writing for the Court of Appeals in this matter, 'It is unrealistic and impossible to expect or require that a jury be a laboratory completely sterilized and freed from all external factors.' The trial judge must have much discretion in dealing with such problems. As stated in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), 'Generalizations beyond that statement are not profitable, because each case must turn on its own special facts.' (Emphasis ours). The natural and worthy tendency to salvage the trial, however, must be counter-balanced with minimum standards for the protection of the defendant's constitutionally guaranteed right to a fair trial. Such standards have been prescribed by the Seventh Circuit Court of Appeals in Margoles v. United States, 407 F.2d 727 (7 Cir. 1969), United States v. Largo, 346 F.2d 253 (7 Cir. 1965) and United States v. Accardo, 298 F.2d 133 (7 Cir., 1962). ² In essence these cases hold that whenever prejudicial publicity is brought to the attention of the court, at a minimum it must, at that time, interrogate the jury to determine its exposure, and that jurors acknowledging exposure should be examined individually to determine the extent of such exposure and the likelihood of prejudice resulting therefrom. The merits of examining separately is two-fold. First, it protects those not already exposed and eliminates the compounding of exposure; and second, it places an exposed juror in the best position possible to disclose the nature and extent of his exposure, possibly his own impropriety, with a minimum of embarrassment, self-consciousness or fear and therefore the maximum possibility of arriving at the truth. At best, jurors are naturally reluctant to admit their own malfeasance, no matter how innocently committed.

The defendant, in this case, was not afforded such minimum protection. The trial judge, although recognizing and acknowledging the problem,...