May v. State

• Decision Date: 18 June 1998
• Docket Number: No. 48A02-9710-CR-697,48A02-9710-CR-697
• Citation: 697 N.E.2d 70
• Parties: Maurice A. MAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 70

697 N.E.2d 70

Maurice A. MAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A02-9710-CR-697.

Court of Appeals of Indiana.

June 18, 1998.

Patrick R. Ragains, Smith, Ragains & Cotton, Anderson, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

STATON, Judge.

Maurice A. May appeals his convictions following a jury trial for Battery, a Class D felony; ¹ Resisting Law Enforcement, a Class A misdemeanor; ² Possession of Cocaine, a Class B felony; ³ and Possession of Marijuana, a Class A misdemeanor. ⁴ May presents one restated issue for our review: whether he was denied the right to a fair trial by an impartial jury.

We affirm.

In the early morning hours of May 4, 1996, Police Officers Steve Ohlheiser and Paul Boulware effected a traffic stop near a high school in Anderson. May, in the backseat, "acted real fidgety." After the officers asked May to exit the vehicle, May ran, discarding a small plastic bag along the way. When the police apprehended May, he struggled, injuring Officer Ohlheiser. The compound in the discarded bag tested positive for cocaine. In addition, police later found marijuana in May's pocket. May was charged with and convicted of Battery, Resisting Law Enforcement, Possession of Cocaine and Possession of Marijuana. ⁵ He now appeals.

Initially, we recognize that May is guaranteed the right to a trial by an impartial jury. See Belazi v. State, 525 N.E.2d 351, 351-52 (Ind.Ct.App.1988) (citing U.S. CONST. amend. VI and IND. CONST. art 1, § 13), reh. denied, trans. denied. Pursuant to Indiana Trial Rule 47(B), prior to the time the jury returns its verdict, alternate jurors must replace jurors who are unable or disqualified to perform their duties. Trial courts have broad discretion to determine whether to replace a juror with an alternate because they are in a much better position to assess a juror's ability to serve without bias. Jervis v. State, 679 N.E.2d 875, 881-82 (Ind.1997). We reverse the trial court's determination when there is an abuse of discretion, that is, when the decision places the defendant in substantial peril. Harris v. State, 659 N.E.2d 522, 525 (Ind.1995).

May first contends that the trial court improperly refused to dismiss a juror after his communication with State witness Officer Ohlheiser during trial. ⁶ The record reveals that the trial court had directed all jurors to refrain from communicating with witnesses. However, during a lunch recess which interrupted Officer Ohlheiser's testimony, the police officer walked into a local restaurant where Juror Hoover was eating. Officer Ohlheiser greeted Mr. Hoover with whom he was acquainted. During a brief exchange, Mr. Hoover invited Officer Ohlheiser to his house the following week-end to watch a "pay review" of a boxing match. Outside the presence of the jury, the following colloquy occurred:

Court: Having inadvertently run into Mr. Ohlheiser and having had conversation, do you think you will be able to still be a fair and impartial juror in this case?

Mr. Hoover: Yes, I can't imagine why it would have any effect whatsoever.

Court: And you did disclose during jury selection that you knew Mr. Ohlheiser?

Mr. Hoover: Yes I did.

Record at 195. Officer Ohlheiser confirmed the conversation but noted he had not seen Mr. Hoover in fifteen years. The trial court overruled May's objection and request to replace Juror Hoover with an alternate.

The Indiana Supreme Court has stated that, because of the fundamental role a jury plays in our system of justice, a rebuttable presumption of prejudice arises where a juror has been involved in out-of-court communications. Timm v. State, 644 N.E.2d 1235, 1237 (Ind.1994). Such misconduct generally must be based upon proof, by a preponderance of the evidence, that an extra-judicial contact or communication occurred and that it pertained to a matter pending before the jury. Kelley v. State, 555 N.E.2d 140, 141 (Ind.1990).

Here, there is no question that the extra-judicial contact occurred. However, by all accounts, Juror Hoover and Officer Ohlheiser met by chance, their conversation was brief, and it did not directly involve the trial proceedings. The brief communication did not, in itself, place May in substantial peril.

We next consider the content of the communication. We agree with May that Juror Hoover displayed a comradery with the witness and, thus, potential partiality. However, the record supports a determination that the underlying social relationship was casual. Furthermore, that social relationship was not a surprise. During voir dire, Mr. Hoover indicated he was acquainted with Officer Ohlheiser. Cf. Threats v. State, 582 N.E.2d 396, 398 (Ind.Ct.App.1991) (juror dismissed for failing to disclose he knew defendant's wife at earliest possible time), trans. denied. The function of voir dire is to ascertain if jurors can render a fair and impartial verdict in accordance with the law and the evidence. Bannowsky v. State, 677 N.E.2d 1032, 1034 (Ind.1997) (citation omitted). May was able to explore the boundaries of any link between Mr. Hoover and Officer Ohlheiser during voir dire and could have sought Hoover's dismissal with a preemptory challenge or a challenge for cause. Objections concerning a juror's qualification must be timely made. Smith v. State, 477 N.E.2d 311, 315 (Ind.Ct.App.1985) (defendant waived error in selection of juror who was bailiff's spouse where defendant did not seek to dismiss him from jury service during voir dire).

Further, Juror Hoover assured the court that he would maintain his impartiality. The Indiana Supreme Court has recently acknowledged, "[T]imely disclosure of a juror's casual relationship with a witness or a party, coupled with an assertion that the juror will remain impartial, adequately protect a defendant's right to an impartial jury." McCants v. State, 686 N.E.2d 1281, 1285 (Ind.1997). The trial court was in the best position to assess Mr. Hoover's honesty, integrity and his ability to perform as an impartial juror. See Harris, 659 N.E.2d at 525-26; see also, Timm, 644 N.E.2d at 1235 (upholding denial of mistrial where juror's mother had informed juror that defendant had a prior conviction for murder); Walker v. State, 587 N.E.2d 675 (Ind.1992) (upholding refusal to excuse juror where juror called police officer, a personal friend, and inquired about a State witness who had testified), reh. denied; Creek v. State, 523 N.E.2d 425 (Ind.1988) (upholding denial of mistrial where juror and nonparty State's witness had casual contact in their mutual place of employment but did not discuss merits of case). We cannot say that May was placed in substantial peril. The trial court did not abuse its discretion in refusing to replace Juror Hoover with an alternate.

May's second argument concerns Juror Troub who, during jury deliberations "when everyone was present," stated that "she just didn't trust [Officer Boulware]" and that "she couldn't or wouldn't be able to make a fair judgment because of that[.]" Record at 477. Apparently the police officer had arrested Mrs. Troub's daughter the night before deliberations began. After an inquiry in which Juror Troub confirmed her animosity toward Officer Boulware, the juror...