Reed v. State

• Decision Date: 25 June 1985
• Docket Number: No. 1283,1283
• Citation: 479 N.E.2d 1248
• Parties: Bruce Bennett REED, Appellant, v. STATE of Indiana, Appellee. S 447.
• Court: Indiana Supreme Court

Page 1248

479 N.E.2d 1248

Bruce Bennett REED, Appellant, v. STATE of Indiana, Appellee.

No. 1283 S 447.

Supreme Court of Indiana.

June 25, 1985.

Charles C. Rhetts, Jr., DeKalb County Public Defender, Auburn, for appellant.

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

PIVARNIK, Justice.

Defendant-Appellant Bruce Bennett Reed was tried by a jury in the DeKalb Superior Court and was found guilty but mentally ill of murder [Count I] and attempted murder [Count II]. He subsequently was sentenced by the trial court to a term of forty years imprisonment on Count I and thirty-five years imprisonment on Count II, said sentences to be served concurrently. Eight issues are alleged and presented for our consideration in this direct appeal as follows:

1. juror irregularity;

2. failure of the State to provide Defendant with exculpatory evidence;

3. need for a new trial based on newly discovered evidence;

4. insufficiency of proof regarding cause of death;

5. jury verdicts being contrary to law;

6. refusal of Defendant's tendered final instruction No. 3;

7. error in sentencing; and

8. placement of Defendant in a maximum security facility.

On the morning of December 19, 1981, sixteen year-old Defendant Reed took a shotgun and fired two times at his sleeping parents in their bedroom. He then ran out of the home and hid in an outbuilding with the shotgun. He subsequently surrendered to police. Defendant's father died from the shotgun blast to his chest and his mother, who previously had suffered several strokes, sustained injuries to her legs. Defendant raised a defense of insanity and three court-appointed psychiatrists examined Defendant and testified at trial. One of the psychiatrists found Defendant to be both insane and mentally ill, the second found that Defendant was neither insane nor mentally ill and the third found that Defendant was sane but did have a personality disorder.

I

Defendant Reed now claims that he is entitled to reversal since one of the jurors in his case had a discussion with another individual regarding this case prior to the time the jury was selected but after the trial court had admonished the prospective jurors not to discuss the case. The other individual allegedly made derogatory remarks about Defendant. Defendant now claims that the juror should have apprised the trial court of the conversation so that measures could have been taken before he was placed on the jury that tried the cause. Defendant's allegations are based primarily on the affidavits and trial testimony of his trial counsel's legal secretary. After Defendant was convicted but before he was sentenced, his counsel commissioned the secretary to call the members of the jury to ascertain their opinions as to an appropiate sentence for Defendant and to generally find out from them what they thought of Defendant's trial. The secretary testified that she was told by one juror that he had been approached by another person who attempted to talk in a derogatory manner about Defendant while the jury was being selected. The juror told an entirely different story. He testified that on one of the evenings after a day of jury voir dire, he had an appointment with a friend but was late due to the trial and, when his friend commented that the jury was being selected in the Reed case, the juror said he could not discuss the case and no further mention of the case was made at that time. The juror also testified that sometime after the trial, while at a family dinner, the juror overheard a conversation in which Defendant was mentioned unkindly. The conflict between the secretary's version and the juror's version concerned the telephone conversation between the secretary and the juror. The juror further stated he did not discuss the case with anyone at all during the trial and even had his daughter cut out newspaper articles on the trial so that he would not be improperly influenced.

The trial court found that there was no irregularity in the conduct of this juror. In reviewing a question such as this, we hold that it is within the discretion of the trial court to determine whether the evidence presented showed any irregularity. Napoli v. State, (1983) Ind., 451 N.E.2d 35. In the case of juror irregularity, there must be harm to the defendant. As this Court has observed:

"Misbehavior or irregularity on the part of a juror must--in order to warrant a new trial--be gross and it must be shown to have probably injured the accused."

Gann v. State, (1975) 263 Ind. 297, 300, 330 N.E.2d 88, 91, reh. denied. In view of the facts presented to the trial judge here, it cannot be said that the trial judge abused his discretion in determining that the evidence presented showed no irregularity meriting the granting of a new trial.

II

Defendant's next claim of error is that the State was aware that he was planning to use as one of his defenses a claim that his father severely abused him. Defendant in this appeal now claims that even though the police were aware of this, they did not adequately investigate or search out such evidence. It is Defendant's argument that because the police did not develop this area of the case, it deprived him of exculpatory evidence concerning his defense of child abuse and thus denied him a fair trial. We find no merit to Defendant's contention here. A negligent or intentional withholding or destruction of evidence by the police that would be exculpatory as to Defendant's guilt would be improper conduct and may present grounds for reversal. Rowan v. State, (1982) Ind., 431 N.E.2d 805, reh. denied. In the instant case, however, Defendant does not point out what witness or evidence, if any, was lost or destroyed or withheld by police by their action or inaction nor does Defendant point to any particular witness that could or should have been produced. The State indicates that Detective Stump testified that he questioned Defendant's mother, brother, sister, the local Welfare Department, the assistant principal of Defendant's high school, his guidance counselor, his doctors and neighbors, in making his investigation. All the information obtained from those witnesses investigated by the police was provided to Defendant in response to his discovery request. Defendant also was granted access to the records of the welfare department and of the high school. We have nothing more than Defendant's speculation that a proper investigation would have produced exculpatory evidence. There is no showing that any evidence was withheld or destroyed by the police here and we accordingly find no grounds for reversal on this issue.

III

Defendant also claims that newly discovered evidence, to-wit: the testimony of Sondra Kay Mentzer at the hearing on the motion to correct errors, mandated the trial court to grant a new trial. At the trial, Defendant's brother and sisters--Brian, Fawn, and Marlene Reed--testified for the State that neither they nor Defendant were unduly beaten and abused by their father. At the hearing on the motion to correct errors, Sondra Kay Mentzer testified in contradiction of these witnesses claiming that she had been married to Defendant's brother and had witnessed Defendant's father physically abuse Defendant and that Defendant's mother had related to her that the father beat the children. She also testified that Defendant knew her and had knowledge of the information she had before trial and, in fact, she contacted Defendant's trial attorney's office attempting to inform him of her testimony but never had her calls returned.

The standard of review in determining whether or not newly discovered evidence entitles a defendant to a new trial pursuant to Ind.R.Tr.P. 59(A)(6) has been stated by this Court as follows:

"... to gain such relief the evidence must meet a nine part test:

'(1) [T]hat the evidence has been discovered since the trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that the evidence is worthy of credit; (8) that it can be produced on a retrial of the case; and (9) that it will probably produce a different result.' Tungate v. State, (1958) 238 Ind. 48, 54-55, 147 N.E.2d 232, 235-36.

Wiles v. State, (1982) Ind., 437 N.E.2d 35, 39, reh. denied."

Augustine v. State, (1984) Ind., 461 N.E.2d 101, 104, reh. denied. The burden is, of course, on Defendant to show that his claims of newly discovered evidence meet the above test. The State contends that Defendant has failed to satisfy the test in that he did not use due diligence to discover this evidence well within his knowledge, that it is merely impeaching evidence and that it would not likely produce a different result at trial. We agree. Discovery after trial of information which might have been useful to the defense does not automatically result in a new trial. Smith v. State, (1983) Ind., 455 N.E.2d 346. Mentzer's testimony was at most impeaching evidence. She admitted during her testimony that the children might not have been lying in their testimony but suggested that they might have characterized events differently than she. Furthermore, there was evidence in the case from other witnesses of possible child abuse by Defendant's father. It could not be said, therefore, that Mentzer's testimony would raise a strong presumption that in all probability would result in a different verdict if Defendant's case were retried. The trial court therefore did not abuse its discretion in denying the motion for a new trial.

IV

Defendant also argues on appeal that the evidence adduced during trial is insufficient to establish the victim's cause of death as the prosecution did not negate possible intervening causes for the death. The evidence at trial clearly established that Defendant shot his father with a shotgun. The emergency...