Smith v. State

• Decision Date: 01 April 1982
• Docket Number: No. 880S333,880S333
• Parties: Danny Joe SMITH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1363

432 N.E.2d 1363

Danny Joe SMITH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 880S333.

Supreme Court of Indiana.

April 1, 1982.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

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

HUNTER, Justice.

The defendant, Danny Joe Smith, was convicted by a jury of child molesting, a class A felony, Ind.Code § 35-42-4-3 (Burns 1979 Repl.), and of being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.). He was sentenced to two terms of thirty years to be served consecutively. This direct appeal presents the following twelve issues:

1. Whether the trial court erred in denying defendant's motions for mistrial based upon the inattentiveness of a juror;

2. Whether certain errors occurred during the challenges to the jurors;

3. Whether defendant's confession was erroneously admitted into evidence;

4. Whether it was reversible error to permit the victim to identify the defendant in court;

5. Whether certain photographs of defendant and a drawing of a pistol were erroneously admitted into evidence;

6. Whether there was error in allowing certain testimony on the issue of defendant's sanity, and in placing the burden of proof on this issue on defendant;

7. Whether it was error for the trial court to refuse to instruct the jury concerning the length of the sentence;

8. Whether it was error for the court to refuse defendant's tendered instruction covering the testimony of one witness;

9. Whether the evidence of defendant being armed with a gun was sufficient to support the verdict;

10. Whether defendant was properly tried and convicted on the habitual offender count;

11. Whether the trial court erred in imposing sentences on both the underlying felony and the habitual offender count; and

12. Whether it was reversible error for the court to permit the inclusion of defendant's confession in the presentence investigation report.

A summary of the facts from the record most favorable to the state shows that on October 3, 1979, the victim who was then ten years old was walking to her school in New Castle, Indiana. The defendant appeared from behind a building and asked her if she wanted ten dollars. When she declined, defendant drew a pistol, grabbed her by the arm, and led her into an alleyway. There, defendant took down his pants, took down the victim's pants, and forced the victim to lie down. In his confession, defendant admitted that he put his left hand inside the victim's vagina and rubbed his penis against her leg. The victim cried and begged defendant not to hurt her. Later in the day, the victim told her mother about the incident, and it was reported to the police.

In the course of the police investigation, the victim was shown some photographic arrays. The police had received a tip that defendant could be a possible suspect because of his involvement in a prior, similar incident. They included a four-year old photograph of him in one of the photographic arrays, but the victim did not make a positive identification from that picture. A few days after the incident, on October 8, 1979, the police talked to defendant and he agreed to be photographed at the police station. The next day, defendant came to the police station as he had agreed, but he had shaved off his mustache. He said he had no objection to his picture being taken. One of the photographs taken at this time was later shown to the victim. She immediately identified this photograph of defendant and remarked that he had shaved off his mustache. Defendant was arrested later that day. He signed a waiver of rights form and then gave an oral confession to the police. He repeated his oral confession on a tape recorder and a transcript of the taped confession was introduced into evidence at the trial. Defendant presented a defense of insanity to the jury.

I.

Defendant first contends that the trial court erred in overruling his motion for mistrial made after the jury returned its verdict on the child molesting charge but before they were reconvened for the habitual offender phase of the trial. The basis for the motion was the fact that during the testimony of the last witness, a court-appointed psychiatrist, Dr. Yarling, one of the jurors, Mr. Bertram, fell asleep. At that time, the trial judge observed the juror doze off and called a recess as soon as possible. He then instructed the bailiff to give the juror a glass of water to hold and drink. Defendant made no objection at that time.

It appears from the record that the jury was selected in this case on Monday, February 11, 1980, and the trial continued on February 12 and 13. Dr. Yarling's testimony was given on February 13, and the verdict on the child molesting count was returned at 9:30 p. m. on that night. The jury was then instructed to return on the following day, February 14, 1980, in order to consider the habitual offender count. Before the jury reconvened on February 14, 1980, defendant made his motion for mistrial on the basis that since Mr. Bertram had fallen asleep at one point, defendant was denied his right to a fair and impartial trial by twelve jurors.

The court overruled the motion for mistrial, reconvened the jury and gave the preliminary instructions on the habitual offender count. Immediately after the court finished reading the preliminary instructions, defendant called to the court's attention that juror Bertram appeared to have fallen asleep once again during the reading of the instructions and the court had called out his name to wake him up. Defendant renewed his motion for mistrial and requested the court to question Bertram.

Bertram told the court that he had been working at night from 10:30 p. m. to 7:00 a. m. during the three days of the trial because there was no one else to take his job. He stated that when he was questioned during voir dire, he had not known he was going to be required to work at night, but had only learned this after being sworn in on the first day of the trial. He said he never informed the court or anyone else that he had to work at night during the trial. Defendant renewed his motion for mistrial on the child molesting count and also moved for a mistrial in the habitual offender phase.

The court overruled both motions, but did grant a four-day continuance so that Bertram could get sufficient sleep over the weekend. The judge ordered the trial to be reconvened on Tuesday, February 19, 1980, and instructed Bertram that he was not to work the night before that date. The trial on the habitual offender count was held on February 19, 1980, and the jury returned its guilty verdict on that same day.

It is well settled that juror misconduct is in the first instance a question for the trial court and the decision to grant or deny a mistrial is a matter committed to the trial court's discretion, reviewable solely on the issue of abuse of discretion. Rodriguez v. State, (1979) Ind., 388 N.E.2d 493; Bean v. State, (1978) 267 Ind. 528, 371 N.E.2d 713; Bradberry v. State, (1977) 266 Ind. 530, 364 N.E.2d 1183.

In this case, the judge took corrective action immediately both times he noticed the juror appear to doze off. The two cases in Indiana which deal with the inattention of jurors due to sleepiness are Merry v. State, (1975) 166 Ind.App. 199, 335 N.E.2d 249, and Alderman v. Cobb, (1884) 94 Ind. 602. It has been established by those cases that there is a two-step approach in determining whether prejudice has resulted from the juror's inattention. "First, it must be shown that the juror was actually inattentive. Second, it must be shown that the juror's action actually resulted in prejudice to the defendant." Merry v. State, supra, 166 Ind.App. at 230, 335 N.E.2d at 267.

This approach is consistent with our well-settled rule that although a trial may not be free from error, every error of the trial court does not require that the case be reversed. Only when the error has caused prejudice to the defendant is there cause to reverse. Bates v. State, (1971) 256 Ind. 490, 269 N.E.2d 749.

Here, the record shows that the trial court took appropriate corrective steps each time the juror's inattentiveness was noticed. The first time the juror appeared to have fallen asleep was during the testimony of a court-appointed psychiatrist who was testifying against defendant's claims of insanity. We fail to see how missing part of this testimony would be substantially prejudicial to defendant. The judge took appropriate action at that time to insure the juror stayed awake during the rest of that day's proceedings. On the next day, when the juror appeared to doze off again, the trial was stopped and continued on a later date when the juror had had sufficient time to rest. We find that defendant has not met his burden of showing that the alleged inattentiveness of the juror under the circumstances actually resulted in prejudice to him. We find no error in the trial court's denial of defendant's motions for mistrial.

II.

Defendant next alleges errors in the denial of two of his challenges for cause and in the refusal of the trial court to permit him to exercise more than his allotted ten peremptory challenges. A consideration of the brief record presented on these issues convinces us that defendant's arguments are without merit. He alleges that one juror, Gary Baughn, was incompetent because of his statement that he believed that accused individuals often attempt to use the defense of insanity just to get out of trouble even where they were really not insane. Defendant contends that another juror was not competent because he was in the midst of moving his residence out of the county. Defendant's challenges for cause to these two jurors were denied. From the record before us, we find that the trial court elicited satisfactory explanations on these questions from both...