Marsh v. State
Decision Date | 21 November 1979 |
Docket Number | No. 1278S297,1278S297 |
Citation | 272 Ind. 178,396 N.E.2d 883 |
Parties | Dean MARSH, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Rick D. Meils, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.
This is a criminal appeal from convictions for commission of a felony while armed, to-wit: rape, pursuant to Ind.Code § 35-12-1-1 and first degree burglary pursuant to Ind.Code § 35-13-4-4. Appellant seeks relief on four bases, alleging (1) error in refusing to permit him to peremptorily challenge a juror; (2) prosecutorial misconduct in closing statement; (3) error in refusing to grant a continuance; and (4) that the evidence was insufficient to support the verdict of guilty.
During the jury selection defense counsel addressed peremptory challenge to jurors number 2, 4, 5, 7, and 8. In refusing to permit the challenge as to juror number 8, the court stated:
The record of voir dire examination and actions taken on challenges during such examination is not included in the record of proceedings before us. The local rule of practice which the trial court was apparently applying is likewise absent from the record and briefs. In Cochran v. State (1978) Ind., 378 N.E.2d 868, we were faced with a claim of this same nature which arose in the same court. Because of the absence of a transcript of the voir dire examination and a copy of the local rule governing that procedure, this Court was unable to reach the merits of the claim. However, in this case we find a sufficient record upon which to fairly adjudicate the claim in the colloquy of the judge, the chronological record of the steps taken during voir dire, and representations in appellant's brief.
The right of an accused to peremptory challenges is granted by Ind.Code § 35-1-30-2. The statutes governing jury challenges in criminal cases are in the same form today as when originally enacted as part of the Criminal Code of 1905 with a minor exception relating to the selections of jurors in death cases, a change which does not touch this case. In McDonald v. State (1909) 172 Ind. 393, 88 N.E. 673, with regard to this same statute, this Court said:
"(T)he statute means that when the jury is passed to a party he must challenge peremptorily if he would challenge, in the absence of an after-arising condition, and that, when the opportunity was twice given, as here, and not exercised, a party cannot complain, unless new conditions arise, calling for an exception (to,) or relaxation of the rule, the practice or the order in the particular case, and that, if a given practice, not arising to the dignity of a rule, is invoked, as here, one to be exempt from its operation, on account of his ignorance of it, he must reasonably apply to be relieved from its operation." 172 Ind. at 397, 88 N.E. at 675.
The Court in this statement departed from the prior common law rule which permitted peremptory challenges to be made at any time prior to the time the jury is sworn, Beauchamp v. State (1842) 6 Blackf. 299; Cochran v. State, supra, and in the same opinion established the present rule that the right to challenge peremptorily is subject to reasonable regulation by the court. Appellant relies heavily upon the appellate court opinion in Veach v. McDowell (1962) 133 Ind.App. 628, 184 N.E.2d 149, in which that court reversed a judgment because of the refusal of a judge to permit a peremptory challenge to be exercised. The circumstances of that case were that the plaintiff first examined the prospective jurors, exercised a number of peremptory challenges and passed the group to the defense which conducted examination and accepted the jury as passed to them. The plaintiff then sought the rebuked challenge. The appellate court held that the plaintiff had not been afforded a reasonable opportunity to challenge peremptorily.
According to the reasoning in the McDonald case, it is not an impermissible withdrawal or unreasonable restriction of the right to challenge peremptorily to require A party to whom the prospective jurors have been passed by his opponent to then exercise such challenges to such jurors. At such point the party required to exercise the challenge has heard the examination by his opponent and has had an opportunity to conduct his own examination and, we think, has at hand all the requisite information for making an intelligent choice of whether to challenge those before him. Wasy v. State (1955) 234 Ind. 52, 123 N.E.2d 462. In Veach, the plaintiff was denied any opportunity to exercise available challenges after having the jury passed to him. The McDonald court would condemn the limitation ordered by the trial court in Veach. The two cases are consistent.
In the case at bar, appellant during voir dire examination prior to the time he sought to exercise the challenge to juror number 8, had heard the examination of that juror by the State, and had thereafter an opportunity to both examine him and to exercise a peremptory challenge to him, and simply did not avail himself of that latter opportunity. It was perfectly reasonable for the trial court to require the defense to exercise its peremptory challenge to juror number 8 immediately after having heard the examination of him by the State and having had an opportunity to do the same. In further support of the action of the trial court, it is to be noted that defense counsel did not apply to the trial judge at the time the attempted challenge was rebuked, to be relieved of that court's ruling. There was no withdrawal of the right here and no unreasonable restriction of it.
Appellant testified at trial that he had had sexual intercourse with the alleged woman victim at the time and place charged, but asserted in defense that she had freely submitted to him. During final summation the trial prosecutor sought to undermine this testimony by stating:
"(N)ote how easily his story was adopted (sic) to the version that she (victim) had, and I might tell you that he had access to these statements by . . . ."
At this point defense counsel objected on the basis that there was no evidence admitted regarding a statement. It was sustained and the jury was ordered to disregard the comment. A motion for mistrial on the same basis was then made and denied. Appellant contends that the court erred in denying the mistrial motion.
The final summation of the prosecution is restricted by law to the evidence presented at trial and must not be based upon implied personal knowledge. Clark v. State (1976) 264 Ind. 524, 348 N.E.2d 27. The statement of the prosecutor referred in turn to a statement...
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