Parks v. State
| Decision Date | 18 February 2010 |
| Docket Number | No. 70A01-0907-CR-355.,70A01-0907-CR-355. |
| Citation | 921 N.E.2d 826 |
| Parties | Keith A. PARKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Eugene C. Hollander, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Keith Parks appeals his convictions of Class B felony burglary1 and Class D felony theft,2 along with an habitual offender enhancement.3 Parks argues the trial court erred by replaying a witness's testimony for the jury during deliberations and there was insufficient evidence to support the habitual offender enhancement. We affirm.
On October 31, 2008, Kelly Richardson arrived home and noticed a car parked near her front porch. When she went inside the house, she found two men attempting to dismantle her computer. Kelly knew one of the men was Parks, because she had been friends with Parks when they were teenagers, and they had remained on friendly terms throughout the years.
Parks, who had something under his shirt, ran out the back door of the house. Kelly went out the front door to the porch, and she saw Parks get in the car parked nearby. Kelly called Parks by name, and he "bowed his head and said it's not me." (Tr. at 231.) The other man ran out the door from the laundry room. He had something underneath his shirt, and he got into the car with Parks. Parks backed out of the driveway and drove away.
Kelly called 911, and then called her husband, Tim. Kelly and Tim inventoried their home and determined they were missing a PlayStation 3, the PlayStation remotes, a Guitar Hero game, and a digital camera.
Kelly knew Parks' father, Terry, had a store in New Castle. The day after the burglary, Tim went to Terry's store and gave Terry his cell phone number. About half an hour later, Tim received a call from a man who identified himself as "Keith" and said "my dad said I should call you [']cause you said I robbed your house yesterday." (Id. at 272.) Parks said he had not been at the Richardsons' house and claimed he had been at home watching his children all day. However, Parks said, "I can see what I can do about getting your stuff back." (Id. at 273.)
Parks was charged with Class B felony burglary and Class D felony theft. The State later amended the information to include an habitual offender count.
Thereafter, Parks called Tim and said he would replace the missing items if the Richardsons would drop the charges. He offered to buy new items and told Tim he could come to the store and pick them up. Tim called the police and told them about the call. Tim then called Parks back and said "the officer said for you to just bring the stuff and ... come on down to the jail." (Id. at 274.) Parks said "that's not what he wants to do right now," but he said he would turn himself in later. (Id.)
At trial, Tim also testified Parks' father Terry offered to resolve the matter by giving him and Kelly their things back, plus $2,000. Parks objected to Tim's testimony about the content of the conversation, and the court sustained the objection. Parks did not ask for the testimony to be stricken from the record or for the jury to be admonished.
Parks presented testimony from his wife and his wife's boss in an attempt to establish he was with his wife at the time of the offense. After Parks rested, the jury submitted questions pertaining primarily to Parks' alibi defense. After consulting with the attorneys, the court informed the jury that the witnesses had left the stand, and they were therefore unable to answer the questions.
The jury was sent to deliberate on the burglary and theft charges at 5:12 p.m. About two hours later, the jury was brought into the courtroom, and the following conversation occurred:
Court: ... [D]o you think the jury is close to reaching a verdict? I'm sorry I need that verbally for the record.
Foreperson: No I'm afraid we're not.
Court: Okay is there, uh, anything that, that either the Court or the, uh, counsel can do which would assist you and the jury in your deliberations?
Foreperson: I think if we had a couple questions answered it's very possible.
Court: Okay ... what I would like to do then is, um, for you to return to the jury room and, and put those questions in, in writing.
(Id. at 384.)
About ten minutes later, the jury sent out two questions: whether Parks had been interviewed and why some of the State's witnesses had not testified. The parties and the court agreed the questions could not be answered. The jury was brought into the courtroom and was informed the questions could not be answered. The foreperson then indicated the jury wanted a transcript of Tim's testimony. The court told the jury to return to the jury room and continue discussing what other assistance might be rendered while the court and the parties discussed the possibility of replaying Tim's testimony. After the jury had returned to the jury room, Parks objected to replaying Tim's testimony, arguing it would draw too much attention to a single witness's testimony.
The court made no ruling at that time, but around 9:00 p.m., the court went on record and told the parties:
[T]he bailiff has indicated, uh, that ... the jury has, um been working on their issues and deliberating, continuing to deliberate, but are now at the point that they do want to know whether they are going to get to hear the, uh, the testimony. Um, so that they are still having difficulty with that testimony....
(Id. at 393.) The court stated the jury was at an impasse and indicated it would allow Tim's testimony to be replayed to the jury. Parks again objected "based on the jury's previous questions and things that have occurred." (Id. at 397.)
The court replayed Tim's testimony for the jury, but the parts to which Parks had objected were redacted. The court then asked if further assistance was needed, but the foreperson indicated rehearing the testimony had "cleared up a couple items ... [t]hat we were talking about." (Id. at 405.) About twenty minutes later, the jury returned a verdict of guilty on both the burglary and theft counts.
At the habitual offender phase of the trial, the State admitted several documents into evidence and then rested. Parks moved for a directed verdict, which was denied, and then he rested without presenting evidence. The jury returned a verdict that indicated it had found Parks had committed all the alleged predicate felonies and that he was an habitual offender.
Parks asserts the trial court erred by replaying Tim's testimony, and there was insufficient evidence to support the habitual offender enhancement.
Under our Jury Rules, which went into effect in 2003, trial courts "have greater leeway to `facilitate and assist jurors in the deliberative process, in order to avoid mistrials.'" Ronco v. State, 862 N.E.2d 257, 259 (Ind.2007) (quoting Tincher v. Davidson, 762 N.E.2d 1221, 1224 (Ind. 2002)). Ind. Jury Rule 28 provides:
If the jury advises the court that it has reached an impasse in its deliberations, the court may, but only in the presence of counsel, and, in a criminal case the parties, inquire of the jurors to determine whether and how the court and counsel can assist them in their deliberative process. After receiving the jurors' response, if any, the court, after consultation with counsel, may direct that further proceedings occur as appropriate.
"Impasse" is "a position from which there is no escape, a deadlock." Litherland v. McDonnell, 796 N.E.2d 1237, 1242 (Ind.Ct. App.2003) (quoting The New Shorter Oxford English Dictionary 1318 (Thumb Index ed. 1993)), trans. denied.
Relying on Ronco, Parks argues the jury was not at an impasse. Ronco was charged with resisting law enforcement by fleeing and by forcibly resisting. The jury expressed confusion as to whether the State had to prove the elements of both fleeing and forcibly resisting. The trial court responded with a note asking the jury to reread the instruction. One juror indicated he still did not understand the instruction and stated "it was going to be a long night." Ronco, 862 N.E.2d at 258. The trial court determined the jury was at an impasse and had the jury brought into the courtroom. The trial court reread the instruction, then explained that there were two types of resisting law enforcement, and Ronco could be guilty of both, neither, or one or the other.
The jury found Ronco guilty of resisting law enforcement, and on appeal, Ronco argued the trial court erred by determining the jury was at an impasse in the meaning of Jury R. 28. Our Indiana Supreme Court agreed:
In this case, jurors simply had a question about the findings necessary to convict Ronco for resisting law enforcement. A question is not an impasse. Nor does one juror's "long night" comment suffice; indication of an impasse must come from the jury's leader or from the jury as a whole.
Id. at 260. However, our Supreme Court found the trial court's additional instructions to the jury were proper under Ind. Code § 34-36-1-6, which provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the testimony; or
(2) the jury desires to be informed as to any point of law arising in the case;
the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.
In Perry v. State, 867 N.E.2d 638, 643 (Ind.Ct.App.2007), trans. denied, we held the trial court improperly invoked Jury R. 28. During deliberations, the jurors sent out a note asking what would happen if they could not come to a unanimous decision. The trial court told the jury it would not answer that question. The jury continued to deliberate for three or four more hours and...
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