Miresso v. State
Decision Date | 20 February 1975 |
Docket Number | No. 2--873A189,2--873A189 |
Citation | 323 N.E.2d 249,163 Ind.App. 231 |
Parties | Leonard MIRESSO, Appellant (Defendant Below), v. STATE of Indiana, Appellee, (Plaintiff Below). |
Court | Indiana Appellate Court |
Harold Abrahamson, Abrahamson, Reed & Tanasijevich, Hammond, for appellant.
Theodore L. Sendak, Atty. Gen. of Indiana, Indianapolis, David J. Crouse, Pros. Atty., Lafayette, for appellee.
Defendant-Appellant Leonard Miresso (Miresso) appeals from a jury conviction of Second Degree Burglary claiming violation of a discovery order, invalid instruction allowing the jury to take notes, and error in admission of certain state's exhibits.
We affirm.
The facts and evidence most favorable to the State are as follows:
At about 3:20 A.M. on September 18, 1971, Lafayette Police Officer Gerry Howard (Howard) was on patrol in the vicinity of C W Y Electronics in Lafayette, Indiana.
Suspicious activity inside the building caused him to investigate the premises, and he subsequently apprehended Miresso after he had jumped through the window by the front door.
Inside the C W Y building, the Police found two holes by the office safe, boxes filled with tapes (cartridges, cassettes, and reels), and empty display cases. Outside the building by another broken window, Police also found several more boxes containing tapes, together with a blue jacket.
During the trial, the court permitted the jury to take notes pursuant to Preliminary Instruction #13:
During the trial you may, if you wish, make brief notes to assist your recollection as to things which might be difficult to carry in your mind. However, you should not engage in continuous notetaking, which would hamper you in listening to the evidence and observing the witnesses as they testify.
The jury found Miresso guilty of Second Degree Burglary and the court sentenced him to imprisonment for a period of not less than two (2) nor more than five (5) years.
Only one issue is preserved for appeal:
Did the trial court err in giving Preliminary Instruction #13 allowing jurors to take handwritten notes during the trial?
Miresso contends that the trial court erred by instructing the jurors to take notes during the proceedings, and to allow the jurors to consider those notes during their deliberations.
The State argues that limited note taking by jurors is permissible to support their memories.
Miresso raises two further issues, both of which are waived. The first involves testimony by a police officer concerning a comment made by Miresso at the time of his arrest . . . but no objection thereto was made at trial. Such failure constitutes waiver of this issue upon appeal. Harrison v. State (1972), Ind., 281 N.E.2d 89; Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538; Smith v. State (1971), 256 Ind. 603, 271 N.E.2d 133; Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d 609; Cody v. State (1973), Ind.App., 304 N.E.2d 820; Worrell v. State (1930), 91 Ind.App. 259, 171 N.E. 208.
Also, his Motion to Correct Errors is silent on this subject.
Miresso's second waived issue concerns certain exhibits entered into evidence by the State. Again, there was no objection at trial.
CONCLUSION--It is our opinion that Preliminary Instruction #13 properly instructed the jurors they might make brief notes during the proceedings.
Note taking by jurors during trial has been the subject of Indiana cases for over one hundred years. Cheek v. State (1871), 35 Ind. 492 is cited by Miresso as prohibiting note taking by jurors.
Cheek, however, like subsequent Indiana cases, 1 involved the circumstance in which a jury member was observed taking notes by the court and admonished to stop, and if the juror ceased the writing activity, the error has been deemed harmless. See, Dudley v. State (1970), 255 Ind. 176, 263 N.E.2d 161; Cluck v. State (1872), 40 Ind. 263; Batterson v. State (1878), 63 Ind. 531; Long et al. v. State (1884), 95 Ind. 481.
But if a juror should continue taking notes after the court's admonishment, such misconduct has been held to entitle the defendant to a new trial. Cheek v. State, supra, and Cluck v. State, supra.
Insofar as Cheek might be relied on as a blanket prohibition against note taking by jurors, it no longer has any vitality. In fact, in 1970, it was criticized by Justice Arterburn in Dudley v. State, supra:
(Emphasis supplied.)
Recognizing the fallibility of memory 2 and the sometime complexities of the modern-day court room, the Court concluded juror note taking in a given case is best left in the discretion of the trial judge. 3
(Emphasis supplied.)
255 Ind. at 181, 263 N.E.2d at 164.
Most authorities agree:
'Most authorities take the view that the making and use of trial notes by the jury is not misconduct but it is proper and may even be desirable where it is unattended by undue consumption of time.
'. . . (I)t is ordinarily within the sound discretion of the trial judge whether to allow note-taking by the jury, and . . . to do so does not constitute error.'
See also, denson v. Stanley (1919), 17 Ala.App. 198, 84 So. 770, rev'd on other grounds Ex parte Stanley, 203 Ala. 408, 84 So. 773; People v. Cline (1963), 222 Cal.App.2d 597, 35 Cal.Rptr. 420; Thomas v. State (1892), 90 Ga. 437, 16 S.E. 94; J. B. Simmons Lumber Co. v. Tocca Furniture Co. (1921), 26 Ga.App. 758, 107 S.E. 340; Indianapolis & St. L.R. Co. v. Miller (1874), 71 Ill. 463 (recognizing rule); State v. Keehn (1911), 85 Kan. 765, 118 P. 851; Martin v. Atherton (1955), 151 Me. 108, 116 A.2d 629; Cahill v. Baltimore (1916), 129 Md. 17, 98 A. 235 (recognizing rule); Commonwealth v. Tucker (1905), 189 Mass. 457, 76 N.E. 127, 7 L.R.A. N.S. 1056; Cowles v. Hayes (1874), 71 N.C. 230; Corbin v. Cleveland (1944), 144 Ohio St. 32, 28 Ohio Ops. 562, 56 N.E.2d 214, 154 A.L.R. 874, aff'g 74 Ohio App. 199, 29 Ohio Ops. 333, 41 Ohio L. Abs. 289, 57 N.E.2d 427 (recognizing rule); W. H. Davis Die Co. v. Beltzhoover Elec. Co. (1931), 40 Ohio App. 308, 178 N.E. 418; First Federal Sav. & L. Asso. v. Williams (1947, App.) 55 Ohio L. Abst. 517, 91 N.E.2d 34; Cleveland, C.C. & St. L.R. Co. v. Ullom (1898), 20 Ohio Cir.Cr.R. 512, 11 Ohio C.D. 321, aff'd without op. Railway Co. v. Ullom, 64 Ohio St. 582, 61 N.E. 1148; B. H. Palmer & Son v. Cowie (1905), 7 Ohio Cir.Ct.R. N.S. 46, 27 Ohio Cir.Ct.R. 617; State v. Cottrell (1896), 19 R.I. 724, 37 A. 947; Watkins v. State (1965), 216 Tenn 545, 393 S.W.2d 141, 14 A.L.R.3d 818; Brooks v. Temple Lumber Co. (1937, Tex.Civ.App.), 105 S.W.2d 386; Goodloe v. United States (1950), 88 App.D.C. 102, 188 F.2d 621, cert. den. 342 U.S. 819, 72 S.Ct. 35, 96 L.Ed. 619; Toles v. United States (1962, C.A. 9 Cal.), 308 F.2d 590, cert. den. 375 U.S. 836, 84 S.Ct. 79, 11 L.Ed.2d 66, reh. den. 375 U.S. 949, 84 S.Ct. 353, 11 L.Ed.2d 280; United States v. Carlisi (1940, D.C. N.Y.), 32 F.Supp. 479; United States v. Campbell (1956, D.C. Iowa), 138 F.Supp. 344; 89 C.J.S. Trial § 456, p. 80; 53 Am.Jur., Trial § 990, p. 690.
Particularly persuasive are those cases in which specific approval was given to the trial court's instructing the jury permitting brief note taking to refresh their memory during the proceedings. For example:
United States v. Carlisi, supra.
See also, Harris v. United States, 261 F.2d 792, (9th Cir. 2958); Toles v. United States, supra; Bates v. Newman (1953), 121 Cal.App.2d 800, 264 P.2d 197; United States v. Campbell, supra; Boegel v. Morse (1960), 251 Iowa 1253, 104 N.W.2d 826; Omaha Fire Insurance Co. v. Crighton (1897), 50 Neb. 314, 69 N.W.2d 766; Cowles v. Hayes, supra; In re Hulbert (1961), 16 Ohio Ops.2d 465, 176 N.E.2d 881; Koontz et al. v. Mylieus (1916), 77 W.Va. 499, 87 S.E. 851; Loggins v. People (1972), Colo., 498 P.2d 1146; State v. Jackson (1968), 201 Kan. 795, 443 P.2d 279.
While no instruction was given in Dudley, it is controlling. Note taking is discretionary with the trial court and an abuse of that discretion must be demonstrated to constitute reversible error. Van Sickle v. Kokmo Water Works Co. (1959), 239 Ind. 612, 619, 158 N.E.2d 460, 463, specifically so stated:
(Emphasis supplied.)
Williams v. State (1973), Ind., 297 N.E.2d 805; Hitch v. State (1972), Ind., 284 N.E.2d 783; Layton v. State (1968), 251 Ind....
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