Randall v. State

• Decision Date: 19 February 1985
• Docket Number: No. 1081S296,1081S296
• Citation: 474 N.E.2d 76
• Parties: Clarence RANDALL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 76

474 N.E.2d 76

Clarence RANDALL, Appellant, v. STATE of Indiana, Appellee.

No. 1081S296.

Supreme Court of Indiana.

Feb. 19, 1985.

Gregory L. Caldwell, Noblesville, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Clarence Randall was found guilty by a jury in the Vigo Circuit Court of murder and was sentenced to forty years imprisonment. Defendant now directly appeals and raises the following ten issues for our consideration:

1. communication of the bailiff with jurors;

2. arrest and detention of Defendant;

3. denial of Defendant's motion for continuance;

4. failure of the State to identify its confidential informant;

5. identification procedures;

6. admission of firearms into evidence;

7. denial of motion to suppress;

8. sentencing;

9. sufficiency of the evidence; and

10. right to speedy trial.

At approximately 5:15 p.m. on October 25, 1978, three men committed an armed robbery at Brock's Pharmacy, 3725 East 38th Street, Indianapolis. Said men were in the store for a period of at least fifteen minutes. Pharmacist John Stockdale was fatally shot by one of the robbers in the rear of the store and the three men took money from the cash register with them when they left. They also forced employee Gary Szeszycki to tender certain drugs to them and took him with them as a hostage. Szeszycki was later released in the store's parking lot. Defendant Clarence Randall, John Randall, and Anthony Peterson were identified by certain employees of Brock's Pharmacy as the men who committed the robbery and murder.

I

Defendant first contends that the trial court erred when it denied his motion to vacate judgment and declare a mistrial claiming that the bailiff improperly communicated with the jury and thereby affected the jury's verdict. It is the State's position that any improper communication by the bailiff with the jury in the instant case was harmless error and that the trial judge cured any prejudice by his action.

After the verdicts of the jury finding the defendant guilty on all counts were returned, it came to the attention of defense counsel that there had been communication between the bailiff and the jury pertaining to how they were to vote on all counts. The trial court held a hearing and it was determined that after the jury had agreed on a verdict of guilty of murder, they discussed what action they should take on the remaining counts. Some of them apparently thought that finding Defendant guilty of murder automatically found him guilty of all other counts. Other jurors apparently wondered whether they needed to vote separately on each of the counts. Kenneth Williams, the foreman of the jury, testified that the murder charge had been voted on before the bailiff was called in to inform as to whether all of the counts had to be voted on or if the guilty verdict on the murder charge took care of the others. He further stated that the bailiff merely told them to vote on all of the counts. Harry Harden, the bailiff, testified that he was asked by the jury if it had to vote on all counts and he simply replied: "Yes." He stated he did not tell the jury that if Defendant was guilty on one count then he was guilty on all other counts. Juror Evalena Bridgewater testified that she did not hear the bailiff make any comment concerning Defendant although she recalled that the jury determined that if Defendant was guilty of one count then he was guilty of all. Juror Susan Laitas testified that the jury found Defendant guilty of the murder count before any discussion arose concerning the remaining counts. She further stated that she did not hear the bailiff say that if Defendant was guilty of one count then he must be guilty of all, although the jurors did discuss this feature of the case. After hearing all of this testimony, the trial court determined that Defendant had not been prejudiced on Count I, the murder charge. The trial judge did find, however, that Defendant had been prejudiced on Counts II through IX, and he accordingly vacated judgment on these counts and imposed sentence only on Count I.

This Court has held that misbehavior or irregularity on the part of a juror must, in order to warrant a new trial, be gross and must have probably injured the accused. Specifically, this Court has held:

"When an irregularity such as this [bailiff reporting jury's question regarding verdict forms to trial judge instead of bringing jury into court] occurs harm will be presumed, and if the irregularity is not explained, a reversal of the judgment should follow. However, if an explanation for the alleged misconduct is offered, and if this Court is satisfied that no harm or prejudice resulted, then the judgment of the trial court will not be disturbed."

Gann v. State, (1975) 263 Ind. 297, 301, 330 N.E.2d 88, 92, reh. denied, quoting Conrad v. Tomlinson, (1972) 258 Ind. 115, 123, 279 N.E.2d 546, 551. We have held also that a defendant cannot obtain a reversal of his murder conviction by showing a bailiff's communication to the jury if it is also shown that the defendant was not prejudiced in any way by the bailiff's communication with the jury. We have stated:

"It is obvious that if the information was divulged after the jury had reached its verdict, and not while the jury was deliberating, it could not have effected (sic) the verdict since the jury would not have known of the information prior to arriving at its verdict."

Krivanek v. State, (1969) 252 Ind. 277, 291, 247 N.E.2d 505, 514; see also Alexander v. State, (1983) Ind., 449 N.E.2d 1068.

It is apparent here that the bailiff's communication was done after the jury had arrived at its verdict finding Defendant guilty of murder. It is, of course, true that to answer the jury's question about the remaining counts, the bailiff should have notified the trial judge and any instructions given should have been made with knowledge of all parties and in open court. It is apparent, however, that the jury in Defendant's case had already reached its guilty verdict on the murder count and we therefore find no prejudice to Defendant in regard to that count. Since the trial judge vacated the judgment on all remaining counts, he appropriately remedied the problem and no prejudicial error remains.

II

Defendant next claims that the trial court erred by finding that probable cause existed to arrest and detain him. The State counters by asserting that Defendant's argument on appeal presents nothing which entitles him to a reversal of his conviction. We agree.

Defendant does not claim that evidence was obtained from his arrest which should have been suppressed at trial, in fact, he makes no claim whatsoever concerning the evidence used at his trial and merely argues error in the finding of probable cause. This Court has held that a valid conviction may rest upon an invalid arrest and that the legality of an arrest is relevant only to the admissibility of evidence resulting from a search based upon the alleged illegal arrest. Glispie v. State, (1980) 274 Ind. 399, 412 N.E.2d 234; Adams v. State, (1974) 262 Ind. 220, 314 N.E.2d 53. Defendant accordingly presents no reversible error on this issue. We note that this Court considered the validity of Defendant's arrest and detention in the appeal of Defendant's brother, John Randall, Randall v. State, (1983) Ind., 455 N.E.2d 916, wherein we found that there was sufficient probable cause for the arrest of all three defendants in this case.

III

During his trial, defendant Clarence Randall presented an alibi defense by testifying in his own behalf that he was with friends and relatives at another place during the robbery and murder in question. The basic story of his alibi was also related to the jury by his sister, Alberta, and his girlfriend, Loretta. In addition, there were other witnesses he wished to call in this regard. One of these witnesses was John Williams who was last known to reside in Cincinnati, Ohio, but who, in the weeks and days immediately prior to the trial, could not be located. Another witness was Frederick Douglas who resided in Muncie, Indiana. Douglas was interviewed by defense counsel and a subpoena was served upon him to appear at the trial to testify in behalf of Clarence Randall. When Douglas failed to appear, the trial court issued a warrant for his arrest to secure his appearance and testimony. When neither Williams nor Douglas appeared to testify, Defendant orally moved for a continuance to obtain these two witnesses.

The statute governing continuances at the time of Defendant's trial was Ind.Code Sec. 35-1-26-1 (Burns 1979) [repealed effective September 1, 1982] and provided:

"A motion by the defendant to postpone the trial on account of the absence of evidence can be made only on affidavit showing materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if the postponement be asked on account of an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring his testimony within a reasonable time. The affidavit must further show that the absence of such witness has not been procured by the act or connivance of the defendant, nor by others at his request, nor with his knowledge and consent, and what facts he believes the witness will testify to, and that he believes them to be true, and that he is unable to prove such facts by any other witness whose testimony can be as readily procured. If, thereupon, the prosecuting attorney will admit that the witness, if present, will testify to the facts which the defendant in his affidavit for continuance alleges that he can prove by the absent witness, or if the evidence be written or documentary, that such documentary evidence exists, the trial shall not be postponed for that cause. The defendant shall file such...