Randall v. State
| Citation | 495 N.E.2d 171 |
| Decision Date | 16 July 1986 |
| Docket Number | No. 484S125,484S125 |
| Parties | Esaw RANDALL, Jr., Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Melanie M. Sterba, Merrillville, for appellant.
Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.
A jury trial resulted in a conviction of Burglary, a Class B felony. Appellant was sentenced to twelve (12) years imprisonment.
The facts are: On the evening of February 25, 1983, Elnora Comar entered her apartment in Gary, Indiana. Upon entering she was apprehensive that some unauthorized person was in her apartment. With her .357 magnum in hand, she proceeded to check the rooms. When she entered her child's bedroom, the lights would not work. Comar discerned that someone was in the room. She fired her gun into the area behind the door. A person identified as appellant was wounded by the shot but was able to struggle with Comar. After breaking free he grabbed a bundle and fled the premises.
Comar was unable to see the face of the intruder but described him as dark-complected, heavyset and approximately three to four inches taller than her height of five foot six inches. She did observe that he was wearing a green army jacket.
When police officers arrived at the apartment, they discovered a .38 caliber revolver laying in the child's bedroom. Comar's .357 magnum was not found.
Shortly after the officers arrived at the Comar residence, another call was received by the police concerning a shooting victim a few blocks from Comar's apartment. Responding officers found appellant who stated he had been shot. At the time of his arrest appellant was not carrying a weapon, nor did he have any objects on his person taken from the Comar apartment. Comar was unable to identify the victim immediately after his arrest.
Both appellant's and Comar's bloodstained clothing were tested by a forensic serologist who determined that the blood type on each item of clothing was the same and matched appellant's blood type. Investigation of Comar's apartment showed forceful entry through a bathroom window. The bloodstains and a gun not belonging to Comar were strong evidence that a burglary had in fact occurred.
At the time of the incident, Comar observed appellant grab a bundle before he exited the apartment. Several days after the incident she reported to the police that she was unable to find some of her jewelry. It was within the province of the jury to weigh this circumstantial evidence and to determine whether or not appellant was in fact guilty as charged. Napoli v. State (1983), Ind., 451 N.E.2d 35.
Appellant claims there is reversible error in the record because the jury returned a verdict against him for a crime not contained in the charging information. He bases this accusation on the fact that the judge purporting to read from the written verdict stated
The record in fact discloses that the only verdict returned by the jury read as follows:
It is obvious from this record that the trial judge had the latter written verdict before him when he purported to read therefrom and made the statement contained in the former quote. It is obvious from the record that he had no such verdict before him when he spoke to the jury, nor did any member of the jury purport to give an oral statement concerning the nature of the crime. It is obvious the judge simply misspoke when he read the written verdict of the jury. Following the erroneous reading by the judge, the jury was polled. Each juror was asked "Sir, is that your verdict?" or "Ma'am, is that your verdict?" In each instance the juror questioned answered in the affirmative.
Appellant takes the position that thus each juror returned a verdict for Robbery rather than Burglary. We cannot accept this hypothesis. The jury had deliberated and rendered a written verdict of guilty of Burglary, a Class B felony. There is no question this is what they had in mind at the time of the polling. The judge's misspoken words "Robbery, Class C felony" in place of "Burglary, a Class B felony" is an interchange of wording which should not be used by a person trained in the law but is certainly a common experience of laymen.
We often hear persons refer to the fact that their house was "robbed" while they were away or, on the other hand, that "burglars" entered the filling station on the corner and stole money from the attendant. The terms "robbery" and "burglary" are so interchangeably and erroneously used by the lay public that it is doubtful that jurors would discern the mistake apparently made by the trial judge.
What we have in this case is clearly a written verdict by a jury which is unequivocal as opposed to a spoken statement by a judge for which there was absolutely no basis. We treat the judge's error as de minimis and affirm the trial court.
While I concur with the result reached by the majority, I cannot agree with the inference that the inconsistency between the spoken and the written verdict is attributable to an erroneous reading by the judge.
The verdict as read by the judge varies from the written verdict form in the record in more than one respect. The verdict as read found the defendant guilty of "robbery, a class C felony," instead of "burglary, a class B felony," as contained in the written verdict in the record. In addition, the judge read the jury foreman's signature as "M.S. Schmidt [sic]." The written verdict, however, is signed "Janice Schmidt."
These multiple inconsistencies compel serious doubts as to whether the variances resulted merely from the judge misspeaking the verdict. An explanation at least equally plausible is that the jury was inadvertently given the wrong verdict form, upon which they returned their verdict of guilty which was then read by the judge; thereafter, the discrepancy was discovered, and the jury foreman was given a corrected form of verdict to sign for the record.
Ind.Code Sec. 35-37-2-7 grants defendant the right to have the jury polled. The jurors were polled on the verdict as read, not upon the written verdict form later inserted in the record. The discrepancy is serious, and for us to now view the matter as de minimis, and to sanction a retroactive nunc pro tunc substitution of separate offense upon which the jury was not polled, tends to jeopardize the statutory right to poll the jury.
The defendant's jury trial proceeded upon a single charge of class B burglary. The final instructions informed the jurors that he was charged with burglary, a class Where the claim is made that a defendant is sentenced for a crime inconsistent with the jury verdict, a jury's verdict may be construed by reference to the charging information and final instructions. Graham v. State (1984), Ind., 464 N.E.2d 1, 9.
B felony, by breaking and entering to commit theft. The instructions defined burglary and theft. No instructions were submitted to the jury pertaining to robbery, class C felony. There was no issue of any lesser-included offenses. The record indicates that the jury was provided with only two forms of verdict, one finding the defendant not guilty without recitation of the crime charged. The other verdict form is the one bearing the signature of the foreman finding the defendant guilty of burglary, a class B felony. This appears to be a standard verdict form for burglary, a class B felony, in which the defendant's name and the cause number was inserted by typewriter. This adds to the speculation that the trial court possessed standard verdict forms for "robbery, class C felony" which may have inadvertently been initially provided to the jury.
Regardless of the preferred explanation for the inconsistencies, the fact remains that the jury was not choosing between the offenses of burglary and robbery. The two choices given them in the verdict forms were, essentially, guilty or not guilty. When the trial judge read them a verdict of not guilty, and they were each asked "is that your verdict," they were merely confirming their decision to find the defendant guilty, rather than not guilty.
With the foregoing exception, I concur with the majority opinion.
Appellant was charged by way of a single count information with class B burglary. The information did not include a class C robbery charge. Before voir dire, the trial court instructed the prospective jurors that the State had charged appellant with class B burglary. Preliminary instructions # 1 and # 2 instructed the jury as to the offenses of class B burglary and class C burglary. Final instructions # 1, # 2, # 5 instructed the jury as to the offenses of class B burglary, class C burglary, and theft. The trial court did not submit to the jury any preliminary or final instructions concerning robbery. The October 12, 1983, proceedings concerning the jury's verdict are set forth here:
WHEREUPON THE FOLLOWING PROCEEDINGS WERE TRANSCRIBED BY OFFICIAL COURT REPORTER, MARIANNA GAMBINI.
In the absence of the Court Reporter, we're recording the proceedings. If you wish to make the record, you should speak loudly enough to get on the recording machine. Jury has signaled a verdict, ready for the jury?
BY MR. HARRIS:
BY MR. DAVIS:
Yes, your Honor.
WHEREUPON THE JURY WAS RETURNED INTO THE COURTROOM AND THE FOLLOWING PROCEEDINGS WERE HELD IN THEIR...
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