McFarland v. State

• Decision Date: 14 June 1979
• Docket Number: No. 1277S822,1277S822
• Parties: Pamela K. McFARLAND, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 989

390 N.E.2d 989

271 Ind. 105

Pamela K. McFARLAND, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1277S822.

Supreme Court of Indiana.

June 14, 1979.

Paul J. Giorgi, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Pamela K. McFarland, was convicted by a jury of second-degree murder, Ind.Code 35-1-54-1 (Burns 1975), and sentenced to an indeterminate sentence of fifteen to twenty-five years in the Indiana Women's Prison. She now appeals raising the following issues:

1. Whether the trial court erred in interrogating two jurors outside the presence of defendant concerning defendant's motion to excuse the jurors for cause and in denying defendant's motion for mistrial 2. Whether the trial court erred in allowing the state to introduce improper character evidence on rebuttal;

3. Whether the trial court erred in refusing to give defendant's tendered instructions regarding the elements of the principal charge and lesser offenses included therein;

4. Whether the trial court erred in refusing to give defendant's tendered instructions which defined the terms "malice" and "in a sudden heat";

5. Whether the trial court erred in refusing to give defendant's tendered instruction and in giving the state's tendered instruction which defined the term "premeditation";

6. Whether the trial court erred in giving the state's instructions regarding self-defense and in refusing to give defendant's tendered instructions regarding self-defense;

7. Whether the verdict of the jury and the judgment of the trial court are contrary to law and not supported by the evidence.

The facts most favorable to the state are as follows. On the morning of January 10, 1977, defendant and the victim, Lawrence W. Godwin, had been grocery shopping. Defendant drove the victim in her car. Upon arriving at the victim's apartment, the two began arguing about whether defendant would accompany Godwin to his apartment. Defendant then pulled out a gun and shot the victim through the heart. Godwin fell to the ground and defendant shot him four more times. The victim died of the gunshot wounds.

Defendant and the victim had been dating and living together off and on for approximately six to seven months. Defendant did not know that the victim was married. When she discovered that Godwin was married, she arranged a confrontation between Godwin and his estranged wife. Godwin reportedly became very angry and while threatening his wife with a knife he inadvertently struck defendant, drawing blood.

After this incident, the relationship between defendant and Godwin deteriorated. She moved out of their shared apartment. They frequently argued at their common place of employment and Godwin slapped her. In November, 1977, defendant purchased a handgun at a pawnshop. Godwin showed up at the pawnshop and accosted her.

Defendant gave up her last attempt at reconciliation approximately two weeks prior to the shooting.

I.

During the course of the trial a regular juror and an alternate juror notified the bailiff that they had questions for the trial judge. They were taken to the judge's chambers where they asked their questions in the presence of the judge, counsel for defendant, and the prosecuting attorney.

The discussion with the alternate juror is raised as error only because of the fact of her communication and not because of the content of her conversation. Therefore, we will here set forth only a summary of the discussion with the regular juror.

The juror asked if the gun used in the shooting was registered. The judge responded that he did not believe he was at liberty to answer that question. Counsel for defendant then interrogated the juror. He pointed out that on voir dire he had asked all the jurors whether the question of registration of the weapon would make any difference in their deliberations or make it impossible for them to be fair and impartial. All had indicated that such a factor would make no difference. Defense counsel then asked the juror if her attitude had changed in this regard and was reflected by her question. The juror indicated that it would not make any difference, that she was merely asking to satisfy her own curiosity. The judge then admonished the juror not to discuss what took place in this conference with any of the other jurors. The juror indicated that she had not mentioned her concern to any of the other jurors.

The defendant's counsel then moved for a mistrial. He asserted that the fact that the juror asked about registration of the gun, a fact not in evidence, indicated that this unresolved doubt in her mind would make a difference in her deliberations regardless of her representations to the contrary. The judge denied the motion.

Defendant claims that the trial court committed two errors in connection with this conference. First, she contends that it was error for the court to communicate with the jurors while she was absent.

In Deming v. State, (1956) 235 Ind. 282, 133 N.E.2d 51, this Court held:

" 'Accused must be present when there is any communication between the judge and the jury, after their retirement, and his absence at such time is ordinarily reversible error.' " 235 Ind. at 284, 133 N.E.2d at 52.

However, the rule is not violated where the judge communicates with the jury as to matters not affecting the interest of the accused which the jury is to consider.

In Deming, this Court found reversible error. However, in that case the trial judge had answered the juror's questions regarding the possibility of parole for the defendant if convicted. This Court held that such a communication was related to substantial rights of the defendant and raised doubts as to the fairness and impartiality of the jury's deliberations. Therefore, prejudice to the defendant was presumed.

Prejudice is presumed if the communication with the jury when the defendant is absent is not explained. However, if an explanation is offered and this Court is satisfied that no prejudice to the defendant resulted, then the judgment of the trial court will be left undisturbed. Gann v. State, (1975) 263 Ind. 297, 330 N.E.2d 88.

"Only communications relating to the substantive rights of the accused give rise to presumptions of harm; such communications usually involve ex parte delivery of legal opinions or instructions to the jury." Bruce v. State, (1978) Ind., 375 N.E.2d 1042, 1068.

In the instant case, we are not convinced that the communication between this one juror and the judge can be elevated to the status of reversible error. We do not have a case in which the judge has addressed the entire jury in a situation analagous to the giving of instructions that this Court found in Deming v. State, supra. In fact, it stretches the facts to label the conference a communication between the judge and a juror. The trial judge was not responsive to the juror's question and his only other words were in admonishment of the juror not to discuss the conference with other jurors. The only other discussion in the conference was between the juror and the defense counsel. It does not appear that defendant's substantive rights were involved and it appears that her counsel adequately represented her in the conference. It was not error to hold this conference in defendant's absence.

Defendant further urges that the trial court erred in denying her motion for mistrial. Defendant asserts that the motion should have been granted because of an irregularity which occurred during the voir dire selection of the jury. Since the matter of gun registration was the subject of the juror's question to the judge, defendant asserts that her answers on voir dire were not altogether truthful. Defendant claims that in order to avoid ruling in favor of a mistrial, the court should have interrogated the juror to determine the extent of her prejudice, if any, against defendant and then attempt to cure that prejudice by admonishment to the juror or jury concerning the question posed by the juror.

The purpose of voir dire is twofold. Counsel seeks to ascertain whether a cause for challenge exists and whether it is wise to exercise his peremptory challenge. It is the duty of each juror to answer all questions on voir dire fully and truthfully. Johnston v. State, (1958) 239 Ind. 77, 155 N.E.2d 129. "If the juror lied, his misconduct was ground for a new trial." Barnes v. State, (1975) 263 Ind. 320, 325, 330 N.E.2d 743, 747.

This Court has set out the proper procedure for a situation such as occurred in the case at bar as follows:

"We believe that the trial court pursued the proper course in dealing with the potential prejudice of this juror: a hearing, out of the presence of the remainder of the jury to determine whether (1) the juror's inaccurate response indicates bias or lack of disinterest, and (2) whether the hearing itself has created a bias in the juror. The court should then allow the defendant to challenge the juror for cause, and should excuse the juror and declare a mistrial if bias is found to be present." Stevens v. State, (1976) 265 Ind. 396, 403, 354 N.E.2d 727, 732.

Here the trial court held just such a hearing when the juror asked her question of the court. Counsel for defendant conducted an extensive interrogation of the juror regarding the matter which he asserted as cause in his motion for mistrial. The trial judge heard all of the discussion and had ample opportunity to determine whether the juror was truthful in that conference and during voir dire. She indicated at all times that her deliberations would not be influenced by the matter of gun registration. The trial judge was in a better position than this Court to determine the veracity of the juror.

The ruling on defendant's motion in this instance was within the sound discretion of the trial court. Stevens v. State, supra. We find no error...