Reynolds v. State

• Decision Date: 14 March 1984
• Docket Number: No. 1182,1182
• Citation: 460 N.E.2d 506
• Parties: Garry G. REYNOLDS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 410.
• Court: Indiana Supreme Court

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.

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

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

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 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 process." Id.

                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
                

Defendant, not having complained of the error at a time when it could have been rectified by the trial court, prior to announcement of the verdict, and the error not being fundamental, may not assign it on appeal.

ISSUE II

Defendant objected to the admission into evidence of various photographs of the homicide victim, arguing that they served no purpose other than to prejudice and influence the jury against the Defendant. The rule is that the admission of such photographs is not reversible error if they are relevant and the relevance is not clearly outweighed by a tendency to inflame or impassion the jury against the defense. Webster v. State, (1981) Ind., 426 N.E.2d 1295, 1297; Brandon v. State, (1978) 268 Ind. 150, 155, 374 N.E.2d 504, 507. The trial court has wide discretion in making such determination. Dresser v. State, (1983) Ind., 454 N.E.2d 406, 408; Brandon v. State, 268 Ind. at 155, 374 N.E.2d at 507; Patterson v. State, (1975) 263 Ind. 55, 61, 324 N.E.2d 482, 486. Absent an abuse of that discretion, we will not reverse a judgment upon an assignment addressed to the trial court's ruling upon such evidence.

In the case at bar, the first four photographs were relevant, inasmuch as they accurately depict the way the body looked as it was first observed in the creek. The other six photographs, taken at the autopsy, were relevant to show the nature and extent of the wounds the victim received. Although the pictures are unpleasant to view, it cannot be said that the potential of such evidence to inflame or impassion the jury against the defense clearly outweighed their relevance; hence, we will not disturb the trial court's ruling.

ISSUE III

The Defendant assigns as error the trial court's refusal to give the following instruction:

"DEFENDANT'S FINAL INSTRUCTION NO. 8

Under the facts and circumstances of this case if you find the Defendant not guilty of the crime of murder you must then consider whether or not the Defendant committed the crime of ASSISTING A CRIMINAL."

The Defendant argues that the instruction should have been given because assisting a criminal is a lesser included offense of murder and because evidence supported the giving of the instruction. The Defendant relies upon Moore v. State, (1983) Ind.App., 445 N.E.2d 576, 578 (transfer denied ), in which the Court of Appeals stated that assisting a criminal is a lesser included offense of murder and attempted murder. The statement in Moore, however, is overly broad. Assisting a criminal is not, in every instance, a lesser included offense of murder.

Indiana employs a two step analysis for determining what constitutes lesser included offenses. Lawrence v. State, (1978) 268 Ind. 330, 337, 375 N.E.2d 208, 212; Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098 A determination of whether an offense is "inherently included" requires an examination of the relevant statutes which define the crimes. Murder is the knowing or intentional killing of another human being or the killing of another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape, or robbery. Ind.Code Sec. 35-42-1-1 (Burns 1979). Assisting a criminal is the harboring, concealment or otherwise assisting a person who has committed a crime or is a fugitive from justice, with the intent to hinder the apprehension or punishment of that person, by one who is neither parent, child, nor spouse to that person. Ind.Code Sec. 35-44-3-2 (Burns 1979). It is obvious that one may commit murder without committing the crime of assisting a criminal; hence, assisting a criminal is not an "inherently included" lesser offense of murder.

                1102-1113 (rehearing denied ).  The first step involves a determination of whether the lesser offense is included within the crime charged.  Two types of included offenses are found in our case law.  In Roddy, Judge Staton,

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