Miresso v. State, No. 2--873A189

Docket NºNo. 2--873A189
Citation323 N.E.2d 249, 163 Ind.App. 231
Case DateFebruary 20, 1975
CourtCourt of Appeals of Indiana

Page 249

323 N.E.2d 249
163 Ind.App. 231
Leonard MIRESSO, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee, (Plaintiff Below).
No. 2--873A189.
Court of Appeals of Indiana, Second District.
Feb. 20, 1975.
Rehearing Denied April 1, 1975.
Transfer Denied May 27, 1975.

Harold Abrahamson, Abrahamson, Reed & Tanasijevich, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen. of Indiana, Indianapolis, David J. Crouse, Pros. Atty., Lafayette, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

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.

FACTS

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.

Page 250

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.

[163 Ind.App. 232] 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.

ISSUE

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), [163 Ind.App. 233] 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.

DECISION

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.

Page 251

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:

'The primary case we find in Indiana prohibiting such practice by a juror is Cheek v. State (1871), 35 Ind. 492. . . . We are inclined to follow what common sense in everyday life tells us is true. At the same time, we do not mean [163 Ind.App. 234] to approve continuous note-taking by jurors, which would distract from listening to the evidence. Minor note-taking for the purpose of supporting the juror's memory, in our opinion, is reasonable and certainly should not be disapproved.' (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

'Our judgment is that it is a discretionary matter with the court whether or not it thinks it would be reasonable for jurors to take some notes to support their memory with reference to the...

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3 practice notes
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 2001
    ...permitted only "limited or minor" note taking during a trial. Appellant's Br. at 82-84; Reply Br. at 34, 36 (citing Miresso v. State, 163 Ind.App. 231, 323 N.E.2d 249 (1975); Dudley, 255 Ind. at 182, 263 N.E.2d at 164; Smith, 272 Ind. at 36, 395 N.E.2d at 790).14 With our increasing familia......
  • Chambers v. State, No. 1179S302
    • United States
    • Indiana Supreme Court of Indiana
    • 8 Julio 1981
    ...(1871) 35 Ind. 492; Batterson v. State, (1878) 63 Ind. 531. We decline to overrule the modern majority view. Miresso v. State, (1975) 163 Ind.App. 231, 323 N.E.2d 249. Further, there was no showing of prejudice to defendant in the instant case with respect to juror note Appellant next claim......
  • Snelling v. State, No. 2--574A115
    • United States
    • Indiana Court of Appeals of Indiana
    • 2 Diciembre 1975
    ...read in open court is more likely to promote equality than to rely on equally retentive memories. See Miresso v. State (1975), Ind.App., 323 N.E.2d 249, approving the taking of notes by jurors as an aid to memory of the evidence In recent cases, the question of written instructions has been......
3 cases
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 2001
    ...permitted only "limited or minor" note taking during a trial. Appellant's Br. at 82-84; Reply Br. at 34, 36 (citing Miresso v. State, 163 Ind.App. 231, 323 N.E.2d 249 (1975); Dudley, 255 Ind. at 182, 263 N.E.2d at 164; Smith, 272 Ind. at 36, 395 N.E.2d at 790).14 With our increasing familia......
  • Chambers v. State, No. 1179S302
    • United States
    • Indiana Supreme Court of Indiana
    • 8 Julio 1981
    ...(1871) 35 Ind. 492; Batterson v. State, (1878) 63 Ind. 531. We decline to overrule the modern majority view. Miresso v. State, (1975) 163 Ind.App. 231, 323 N.E.2d 249. Further, there was no showing of prejudice to defendant in the instant case with respect to juror note Appellant next claim......
  • Snelling v. State, No. 2--574A115
    • United States
    • Indiana Court of Appeals of Indiana
    • 2 Diciembre 1975
    ...read in open court is more likely to promote equality than to rely on equally retentive memories. See Miresso v. State (1975), Ind.App., 323 N.E.2d 249, approving the taking of notes by jurors as an aid to memory of the evidence In recent cases, the question of written instructions has been......

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