Mitchell v. State

• Decision Date: 10 March 1989
• Docket Number: No. 89S00-8607-CR-632,89S00-8607-CR-632
• Citation: 535 N.E.2d 498
• Parties: James Daniel MITCHELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 498

535 N.E.2d 498

James Daniel MITCHELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 89S00-8607-CR-632.

Supreme Court of Indiana.

March 10, 1989.

Terrance W. Richmond, Milan, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

James Daniel Mitchell appeals his conviction after a jury trial for the murder of James Thomas. Ind.Code Sec. 35-42-1-1(1) (Burns 1985 Repl.). The trial court sentenced him to 40 years in prison. We affirm.

Mitchell raises seven issues in this direct appeal:

I. Whether the trial court abused its discretion by requiring continued deliberations after the jury twice informed the court it was "deadlocked";

II. Whether delivering exhibits to the jury after twice declining to do so was error;

III. Whether it was error to withhold from this delivery four exhibits not admissible for the truth of their contents;

IV. Whether giving limiting instructions concerning these same four exhibits sua sponte was error;

V. Whether the court improperly limited the cross-examination of State's witness Ronald DeLucio;

VI. Whether a police detective can be permitted to relate his conclusions about the probative value of evidence; and,

VII. Sufficiency of the evidence.

The evidence at trial was that Mitchell contacted Ronald DeLucio about a "scam deal." Mitchell, who had known DeLucio for several years, asked DeLucio to travel from his home in Houston, Texas. He did not describe details about the plan, but wired DeLucio enough money for a flight to Indianapolis.

When DeLucio arrived at the Indianapolis airport on February 6, 1982, he was met by Mitchell and by James and Bonnie Thomas, targets of the scheme. Mitchell told DeLucio more about the plan in an airport restroom. DeLucio was to pose as a jewelry courier who could double the Thomases' financial contribution to the scheme.

Upon arrival at the Thomas residence in Richmond, James Thomas placed a sack of money on a living room table. Thomas said the sack contained $15,000. Mitchell took the money and put it in his briefcase. He then left the group and went to the bathroom. When Mitchell returned, he shot at James and Bonnie Thomas. They died from multiple gunshot wounds. The jury found Mitchell guilty of killing James and acquitted him of killing Bonnie.

I. Jury Deliberations

Mitchell argues that Judge Robert Reinke should have discharged the jury and declared a mistrial after the jury twice informed the court that it was deadlocked. The record is unclear about the period of time the jury deliberated.

During its deliberations, the jury passed several notes to the court. The first note requested exhibits be sent to the jury room. The next note stated:

Janice [the bailiff] our deliberations have come to a standstill. We are at the point of a deadlock. If possible we need instruction from the Court.

The judge informed the jury that he could not respond to that general inquiry, but would consider any specific question or request. Finally, they sent a note saying:

We have reviewed testimony in evidence again. We cannot come to a unanimous decision, [sic] we are deadlocked.

After this last note, the trial court sent exhibits to the jury room.

The Indiana Code commits decisions concerning discharge to the discretion of the trial court: "The jury may be discharged by the court ... after they have been kept together until it satisfactorily appears that there is no probability of their agreeing." Ind.Code Sec. 34-1-21-7 (Burns 1986 Repl.). Judge Reinke exercised proper discretion in declining to discharge the jury.

II. Sending Exhibits to Jury Room

Mitchell argues that the court intimidated or coerced the jury by sending certain exhibits to the jury room after the members indicated twice they were deadlocked. Mitchell further argues the trial court erred by not rereading all final instructions in response to the jury's inquiry.

Mitchell's first argument compares the trial court's actions to an "Allen charge." An "Allen charge" is the name given to a supplemental instruction by a trial judge to an apparently deadlocked jury. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Such a charge is reversible error when it unduly intimidates or coerces a jury. See Lewis v. State (1981), Ind., 424 N.E.2d 107.

Decisions about providing exhibits to the jury are within the trial court's discretion. Thomas v. State (1972), 259 Ind. 537, 540, 289 N.E.2d 508, 509 (Sec. 5.1 of ABA Standards Relating to Trial by Jury "the best rule").

The trial court supplied all the appropriate exhibits, reducing chances for undue emphasis on certain exhibits. Further, the trial court carefully cautioned the jury about its decision to provide exhibits, saying:

I've received your communication Mr. Foreman concerning the status of your deliberations and having considered it it's the opinion of the Court that it might assist you in your deliberations if you were to receive certain of the exhibits which have been admitted as evidence in this case. So what I will do is send certain of these exhibits back with you and ask that you continue your deliberations further in the hope that you might be able to reach a unanimous verdict....

In this circumstance, sending certain exhibits to a jury does not carry the level of coercion of an Allen charge. We find no coercion and conclude that the trial court acted within its discretion.

Mitchell argues that the trial court should have reread all final instructions upon any inquiry from the jury. He cites Crowdus v. State (1982), Ind., 431 N.E.2d 796 (giving supplemental instruction reversible error), and Cornett v. State (1982), Ind., 436 N.E.2d 765 (sending jury instructions containing extraneous markings reversible).

Mitchell cites language in Cornett saying instructions must be reread for "any type of problem." Cornett 436 N.E.2d at 766 (emphasis in original). ¹ The rule then prevailing held sending instructions to the jury room error, although not per se reversible, and required that the trial court reread all final instructions. Jameison v. State (1978), 268 Ind. 599, 377 N.E.2d 404; Mullins v. Bunch (1981), Ind., 425 N.E.2d 164. Under current law, it is not error to send final instructions to the jury room if they have first been read in open court. Wood v. State (1987), Ind., 512 N.E.2d 1094.

Clearly, our new rule allowing "cleansed" instructions to be sent to the jury room at the trial court's discretion, once the instructions have been read, supersedes the advice of Cornett. A court deciding to reread final instructions should read all of them to prevent undue emphasis. Likewise, if a court decides to send final instructions to the jury room, it should send all final instructions.

III. Withholding Certain Exhibits

Mitchell argues that exhibits 14, 15, 16 and 17 were erroneously excluded from the exhibits sent to the jury room. These exhibits were copies of folders and documents from Richmond Police Department investigatory files and a partial transcript of grand jury testimony on the murder of James and Bonnie Thomas. They were seized by the State from Mitchell's possession.

Initially, we must consider whether Mitchell waived this issue by failing to make a timely objection. Mitchell had earlier objected to limiting instructions on the exhibits. He also objected to any and all exhibits going to the jury room. The trial court then reviewed each exhibit that would be sent, not mentioning exhibits 14, 15, 16 and 17. After this announcement, the trial court asked Mitchell's attorney for any comments. Mitchell did not object at this point or at any other time.

Mitchell further argues that there was no opportunity to object, citing Kennedy v. State (1972), 258 Ind. 211, 280 N.E.2d 611 and Long v. State (1983), Ind.App., 448 N.E.2d 1103. In the case at bar, however, Mitchell did have an opportunity to object to the exclusion of exhibits 14, 15, 16 and 17 outside the presence of the jury. Mitchell waived this issue.

IV. Instruction Given Sua Sponte

Mitchell argues that the trial court erroneously instructed the jury on the limited purpose of exhibits 14, 15, 16 and 17. Mitchell asserts that this was error because the instruction was given sua sponte, and because the instruction was confusing and contradictory.

Exhibits 14, 15, 16 and 17 were not included in the record on appeal. While failing to include exhibits may waive an issue, here it does not. Mitchell does not contest the substantive issue of whether these exhibits are hearsay. Mitchell's claim of error focuses on whether the trial court may give this instruction on these exhibits sua sponte. This issue does not demand an examination of the exhibits. The instruction at issue informed the jury that these exhibits, police investigatory files and grand jury testimony, should not be considered as proof of any of the facts contained in the exhibits. The court instructed the jury that the exhibits could be deemed as proof only of the defendant's possession of the items.

Mitchell relies on the legal principle that when no limiting instruction is tendered, and the trial court gives none, the evidence received by the jury may be considered for all purposes, citing Grove v. State (1983), Ind.App., 449 N.E.2d 1122. That principle, though, provides only partial guidance concerning a trial court's decision to give sua sponte a limiting instruction on hearsay exhibits. The full answer is provided by Hudgins v. State (1983), Ind., 451 N.E.2d 1087. Action taken sua sponte does not automatically constitute advocacy by the court. A court is not required to allow improper procedures regardless of the absence of objections. Id. at 1090. We find that it was appropriate for the court to act sua sponte.

V. Limitation of Cross Examination

Mitchell argues that the trial court erroneously limited the cross-examination of Ronald DeLucio, called...