Shultz v. State

• Decision Date: 16 March 1981
• Docket Number: No. 2-980,2-980
• Citation: 417 N.E.2d 1127
• Parties: James H. SHULTZ, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). A 301.
• Court: Indiana Appellate Court

Page 1127

417 N.E.2d 1127

James H. SHULTZ, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-980 A 301.

Court of Appeals of Indiana, Second District.

March 16, 1981.

Charles H. Criss, Fern & Criss, Peru, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant James H. Shultz (Shultz) appeals convictions of Driving While Intoxicated (I.C. 9-4-1-54(b)) and Driving Left of Center (I.C. 9-4-1-63) entered against him following a jury trial, claiming a dictionary should not have been sent into the jury and error in admission of testimony as to blood taken by hospital employees.

We affirm.

FACTS

The facts most favorable to the verdict are as follows:

On the night of October 18, 1979, Shultz collided head-on with a vehicle driven by Lawrence Williamson (Williamson). The accident occurred on Business Route 31, a two-lane highway in Miami County. Williamson testified that immediately after crossing a bridge, he observed Shultz's car strike the curb and cross the center line into his lane. Williamson testified that he had time to stop his car and attempt to back out of Shultz's path, all the time flashing his bright lights and honking his horn. Despite his efforts, Shultz collided with him. Williamson sustained injuries in the wreck.

Shultz was also injured. Witnesses testified that Shultz had a bloody nose and mouth, and that he appeared to be both dazed and intoxicated. Shultz, Williamson, and Williamson's passenger were transported to the hospital in the same ambulance. Upon arrival at the hospital, Williamson testified that he, his passenger, and Shultz were placed in the emergency room in a manner that enabled him to hear Shultz's conversation. At one point, Shultz said to a medical technician, "Man I have had one too many." (R. at 98).

A blood sample was drawn from Shultz while he was undergoing treatment. The alcohol content of the sample was .20 per cent. (R. at 180). When he was released, Shultz's nose and mouth were bandaged.

During jury deliberations, the jury asked the bailiff if they could have a dictionary. The bailiff communicated that request to the judge, who replied by having the bailiff take them a dictionary.

The jury found Shultz guilty of both Driving While Intoxicated and Driving Left of Center. He was sentenced to the Indiana State Farm for one year, fined two dollars and costs, and his driver's license was suspended for two years. Shultz posted appeal bond and perfected this appeal.

ISSUES

1. Did the court err in responding to a request of the jury without consulting counsel or calling the jury into open court?

2. Did the court commit reversible error by providing a dictionary to the jury during their deliberation, at their request, without first consulting with counsel for both sides?

3. Does the physician-patient privilege prohibit the trial court from admitting testimony of a hospital employee regarding the results of her analysis of Shultz's blood sample when the sample was initially requested by a doctor and the doctor did not testify?

4. Did the trial court err in admitting evidence as to the blood alcohol content of Shultz when the technician who analyzed the blood and testified regarding it was not certified by the Indiana State Department of Toxicology?

5. Were Shultz's constitutional rights against self-incrimination and unlawful search and seizure violated by the admission of testimony regarding a blood sample drawn, while Shultz was conscious, without his consent?

DECISION

ISSUE ONE Did the court err in responding to a request of the jury without consulting counsel or calling the jury into open court?

CONCLUSION The court did not err in responding to the jury's request.

The discussion of this issue is limited to consideration of the question of the propriety of the alleged "communication" itself; the question as to whether allowing the jury access to a dictionary is error will be dealt with as Issue Two, infra.

The record in this case presents the issue of communication between judge, bailiff, and jury to us in the following affidavit:

AFFIDAVIT

I, J. Ward Vandegrift, Special Judge of this cause, State of Indiana vs James Shultz, hereby swear that while the jury was in the Jury Room, during deliberations, they requested through the Bailiff, the use of a dictionary. I granted the request. The dictionary was a Webster's New World Dictionary of the American Language/Second College Edition. The Bailiff delivered the dictionary to the jury in the Jury Room. Neither counsel for the State, nor counsel for Defendant, nor Defendant were present at that time. Also neither counsel for State, counsel for Defendant, or Defendant was consulted about the dictionary. Counsel for Defendant, Charles H. Criss, objected to the procedure as soon as he learned it had been followed and his objections were duly noted in the record.

FURTHER AFFIANT SAITH NOT.

s/s J. Ward Vandegrift

J. WARD VANDEGRIFT, JUDGE

R. at 221.

The jury asked the bailiff for a dictionary, the bailiff told the judge of their request, and he responded by having a dictionary sent to them. Insofar as "communication" is concerned, there was very little.

The standard of appellate review of such communications has been established by our Supreme Court. The failure to bring the jury into open court to communicate with the judge

does not constitute reversible error unless some harm or prejudice has been suffered by the objecting party. When an irregularity such as this occurs harm will be presumed, and if the irregularity is not explained, a reversal of 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.

Conrad v. Tomlinson (1972), 258 Ind. 115, 279 N.E.2d 546, 551. The Supreme Court has thus rejected a per se rule in presuming prejudice from any judge-jury communication.

The Conrad standard has been analyzed in numerous subsequent cases. In Frasier v. State (1974), 262 Ind. 59, 312 N.E.2d 77, cert. denied, 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 686, the Supreme Court amplified its earlier holding. "The important point is not who offers an explanation but that this court be satisfied that 'no harm or prejudice resulted' from the misconduct of the bailiff." Id. at 81-2. And again, in Gann v. State (1975), 263 Ind. 297, 330 N.E.2d 88, the court held; "No words or actions of the bailiff having been shown to have prejudiced appellant, a new trial is not warranted." Id. at 92. In Gann, the court reiterated that misbehavior or irregularity on the part of the jury must in order to warrant a new trial be gross and it must be shown to have probably injured the accused. Id. at 91.

The scope of what has been considered proscribed communication can be discovered by comparing the fact situations presented by the case law. No error was found when a bailiff discussed missing verdict forms with the jury and then told the judge about the problem. Fruehauf Trailer Division v. Thornton (1977), Ind.App., 366 N.E.2d 21. This court has recently had occasion to analyze Gann, Frasier, Conrad, and Fruehauf Trailer:

The rule of these cases is that if the communications do not involve any material issue of the case nor play a role in the decision on the merits of the verdict, no prejudice is shown.

City of Indianapolis v. Ervin (1980), Ind.App., 405 N.E.2d 55, 65. So we conclude that the mere act of a jury requesting a dictionary and a judge responding thereto without consulting counsel or calling the jury into open court does not per se constitute reversible error. Our conclusion is in keeping with an appellate court case which reached the same conclusion, albeit without the benefit of exposition. Indianapolis Power & Light Company v. Moore (1936), 103 Ind.App. 521, 5 N.E.2d 118 (bailiff took several volumes of a dictionary into the jury). Also supportive although not directly in point, is Anderson v. Taylor (1972), 154 Ind.App. 217, 289 N.E.2d 781, in which the trial court refused to send a dictionary into the jury room at the jury's request and did not call the jury into open court or inform counsel. The party alleging error in Anderson, as here, argued that I.C. 34-1-21-6, ¹ providing for further instructions to the jury, governs when the jury requests a dictionary. That position was expressly rejected by the court in Anderson :

The above quoted statute does not require the court to bring the jury back into open court on a request for a dictionary. The statute requires the calling of the jury back into the jury box only when "there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case."

Id. at 786 (emphasis in original). Consequently, it seems to be established in this court that the mere act of a jury requesting a dictionary and the response thereto by the judge does not constitute communication rising to the level that requires the jury to be brought into court.

Defendant relies on Deming v. State (1956), 235 Ind. 282, 133 N.E.2d 51, for the proposition that all communications from the judge to the jury pertaining to substantive rights of a defendant must be made in open court. We do not question that formulation of the law as a general rule. In Deming, however, the court answered questions regarding defendant's chances of parole. In Laine v. State (1972), 154 Ind.App. 81, 289 N.E.2d 141, the bailiff undertook to explain verdict forms to the jury. In Sparks v. State (1972), 154 Ind.App. 691, 290 N.E.2d 793, the bailiff advised the jury of the meaning of the term "disfranchisement." In each of these cases, the bailiff became actively involved in matters relevant to jury deliberations. The contrast between the substantive communications which...