Reynolds v. State, No. 1182

Docket NºNo. 1182
Citation460 N.E.2d 506
Case DateMarch 14, 1984
CourtSupreme Court of Indiana

Page 506

460 N.E.2d 506
Garry G. REYNOLDS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1182 S 410.
Supreme Court of Indiana.
March 14, 1984.

Page 507

Calvin K. Hubbell, Valparaiso, for appellant; W. Jonathan Forker, Valparaiso, of counsel.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

The Defendant (Appellant) was convicted of Murder, Ind.Code Sec. 35-42-1-1 (Burns 1979) and sentenced to forty (40) years imprisonment. His direct appeal raises four (4) issues for our review:

1. Whether the trial court committed reversible error when it communicated with a member of the jury during the jury deliberations;

2. Whether the trial court erred when it admitted into evidence ten (10) photographs of the deceased victim over the objection that they were highly inflammatory and served no purpose other than to prejudice the jury;

3. Whether the trial court erred in refusing to give the Defendant's tendered

Page 508

final instructions advising that the crime of assisting a criminal was an offense of which Defendant could be found guilty;

4. Whether the evidence was sufficient to sustain the verdict.

ISSUE I

While the jury was deliberating, and before it had reached a verdict, a member of the jury called the trial judge in his chambers from a telephone located in the jury room. The juror wanted to know why the State had not called a co-defendant to testify in this case. Without informing the Defendant or counsel and without calling the jury into open court, the trial judge instructed the inquiring juror that the State was not required to call the co-defendant as a witness, nor was the Defendant required to call him as a witness. After the jury had reached its verdict, but before it was announced, the attorneys and the Defendant were informed of the aforementioned communications. Defendant did not request a mistrial or, in any manner, indicate any dissatisfaction with the action of the trial judge.

We have consistently held that when the jury indicates that it has questions or problems during the course of its deliberations, the proper procedure is for the court to call the jury back into open court and, in the presence of all of the parties and their counsel, reread all of the final instructions given to them prior to their deliberations, without emphasis on any of them and without further comment. Cornett v. State, (1982) Ind., 436 N.E.2d 765, 766; Crowdus v. State, (1982) Ind., 431 N.E.2d 796, 798; Wallace v. State, (1981) Ind., 426 N.E.2d 34, 36; Lewis v. State, (1981) Ind., 424 N.E.2d 107, 111; Cameron v. State, (1979) 270 Ind. 185, 187, 383 N.E.2d 1039, 1041.

The trial court obviously did not adhere to the appropriate procedure, and Defendant argues that such action violated Indiana law and his constitutional right to be present at all stages of the criminal proceeding. We agree that the exchange was highly improper; however, we do not reach that question, inasmuch as Defendant has failed to preserve error for appeal.

We have said many times that we cannot allow a party to permit a court's action to go unchallenged and then attempt to raise the court's action as error on appeal. Gosnell v. State, (1978) 268 Ind. 429, 431, 376 N.E.2d 471, 472; Hensley v. State, (1969) 251 Ind. 633, 639, 244 N.E.2d 225, 228. In Dodson v. State, (1978) 269 Ind. 380, 383, 381 N.E.2d 90, 93, Justice Pivarnik explained:

"Unless there is fundamental error, a defendant cannot be allowed to gamble on the possibility of a favorable verdict by sitting idly by, making no objection to matters he considers prejudicial, and then attempt to assert those matters as error after an unfavorable disposition of his case."

An exception to the requirement of a timely in-trial objection occurs when the error is fundamental. Malo v. State, (1977) 266 Ind. 157, 162, 361 N.E.2d 1201, 1204. "Such errors have been variously described as a failure to meet the requirements of due process of law, gross error which offends our concept of criminal justice, and the denial of fundamental due process." Nelson v. State, (1980) 409 N.E.2d 637, 638 (citations omitted). In order to rise to the level of fundamental error the error must constitute a clearly blatant violation of basic and elementary principles, and the harm or potential for harm therefrom must be substantial and appear clearly and prospectively. Id.; Phillips v. State, (1978) 268 Ind. 556, 561, 376 N.E.2d 1143, 1146. But, the mere fact that the error complained of relates to a constitutional right does not, in and of itself, render it fundamental error requiring us to go against well established rules of procedure. Nelson v. State, 409 N.E.2d at 638; Malo v. State, 266 Ind. at 162, 361 N.E.2d at 1205.

In the case at bar, the error complained of was not fundamental. The circumstances of this case are similar to those of Decker v. State, (1979) 179 Ind.App. 472, 386 N.E.2d 192, wherein the court was

Page 509

notified, during deliberations, that the jury had a question and sent an answer. About one hour later, in open court, the incident was discussed, the jury was told to redeliberate, and Decker did not move for a mistrial or request a hearing at that time. Our Court of Appeals there determined that "the error complained of was not so blatant that the Defendant was deprived 'of any realistic opportunity for a fair hearing.' " Id. at 495, 386 N.E.2d at 207.

In Phillips v. State, (1978) 268 Ind. 556, 561, 376 N.E.2d 1143, 1146, the assigned error was an indiscreet comment made by the court's bailiff to one of the jurors. No objection or motion for mistrial was made. This Court, while noting that such a communication was highly improper, found that the error complained of was not fundamental. "[A] reviewing court should be reluctant to invoke the rule of fundamental error, and will do so only when a blatant error has occurred which would, otherwise, deny a defendant fundamental due...

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37 practice notes
  • Allen v. State, No. 49S00-9207-DP-566
    • United States
    • Indiana Supreme Court of Indiana
    • September 25, 1997
    ...to address a claim of error not raised in the trial court but which claims a deprivation of fundamental due process. Reynolds v. State, 460 N.E.2d 506, 508 (Ind.1984). To be "fundamental error" it must constitute a clearly blatant violation of basic and elementary principles, and ......
  • Andrews v. State, No. 57A03-8801-CR-1
    • United States
    • Indiana Court of Appeals of Indiana
    • October 19, 1988
    ...The harm or its potential must be substantial and appear clearly and prospectively from the record. Reynolds v. State (1984), Ind., 460 N.E.2d 506." Gosnell v. State (1985), Ind., 483 N.E.2d 445, 447. Because the prosecutor's misstatements did not cause Andrews substantial harm or even......
  • Wright v. State, No. 18S00-9606-CR-458
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1997
    ...of murder. See Thacker v. State, 556 N.E.2d 1315, 1321 (Ind.1990); Evans v. State, 489 N.E.2d 942, 947 (Ind.1986); Reynolds v. State, 460 N.E.2d 506, 509-10 (Ind.1984). See also Lahr v. State, 640 N.E.2d 756, 763 (Ind.Ct.App.1994); Horn v. State, 503 N.E.2d 1235, 1236 Defendant cites this C......
  • Whittle v. State, No. 07S00-8703-CR-00345
    • United States
    • Indiana Supreme Court of Indiana
    • August 31, 1989
    ...presence, any alleged error has been waived. See Rhinehardt v. State (1985), Ind., 477 N.E.2d 89, 94; Reynolds v. State (1984), Ind., 460 N.E.2d 506, The trial court is affirmed. SHEPARD, C.J., and DeBRULER and GIVAN, JJ., concur. DICKSON, J., concurs in result without opinion. ...
  • Request a trial to view additional results
37 cases
  • Allen v. State, No. 49S00-9207-DP-566
    • United States
    • Indiana Supreme Court of Indiana
    • September 25, 1997
    ...to address a claim of error not raised in the trial court but which claims a deprivation of fundamental due process. Reynolds v. State, 460 N.E.2d 506, 508 (Ind.1984). To be "fundamental error" it must constitute a clearly blatant violation of basic and elementary principles, and ......
  • Andrews v. State, No. 57A03-8801-CR-1
    • United States
    • Indiana Court of Appeals of Indiana
    • October 19, 1988
    ...The harm or its potential must be substantial and appear clearly and prospectively from the record. Reynolds v. State (1984), Ind., 460 N.E.2d 506." Gosnell v. State (1985), Ind., 483 N.E.2d 445, 447. Because the prosecutor's misstatements did not cause Andrews substantial harm or even......
  • Wright v. State, No. 18S00-9606-CR-458
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1997
    ...of murder. See Thacker v. State, 556 N.E.2d 1315, 1321 (Ind.1990); Evans v. State, 489 N.E.2d 942, 947 (Ind.1986); Reynolds v. State, 460 N.E.2d 506, 509-10 (Ind.1984). See also Lahr v. State, 640 N.E.2d 756, 763 (Ind.Ct.App.1994); Horn v. State, 503 N.E.2d 1235, 1236 Defendant cites this C......
  • Whittle v. State, No. 07S00-8703-CR-00345
    • United States
    • Indiana Supreme Court of Indiana
    • August 31, 1989
    ...presence, any alleged error has been waived. See Rhinehardt v. State (1985), Ind., 477 N.E.2d 89, 94; Reynolds v. State (1984), Ind., 460 N.E.2d 506, The trial court is affirmed. SHEPARD, C.J., and DeBRULER and GIVAN, JJ., concur. DICKSON, J., concurs in result without opinion. ...
  • Request a trial to view additional results

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