State ex rel. Courtney v. Superior Court of Marion County, Criminal Div. Four

• Decision Date: 14 September 1988
• Docket Number: No. 49S00-8804-OR-384,49S00-8804-OR-384
• Citation: 528 N.E.2d 64
• Parties: STATE of Indiana ex rel., Thomas COURTNEY, Relator, v. The SUPERIOR COURT OF MARION COUNTY, CRIMINAL DIVISION FOUR and The Honorable Patricia Gifford, Judge thereof, Respondents.
• Court: Indiana Supreme Court

Page 64

528 N.E.2d 64

STATE of Indiana ex rel., Thomas COURTNEY, Relator, v. The SUPERIOR COURT OF MARION COUNTY, CRIMINAL DIVISION FOUR and The Honorable Patricia Gifford, Judge thereof Respondents.

No. 49S00-8804-OR-384.

Supreme Court of Indiana.

Sept. 14, 1988.

Robert W. Hammerle, Indianapolis, for relator.

David F. McNamar, Steers, Sullivan, McNamar & Rogers, Indianapolis, for respondents.

PIVARNIK, Justice.

On March 23, 1988, this court conducted a hearing on a Temporary Writ of Mandate and Prohibition. The temporary writ was denied on that date and we now deny the application for a permanent writ.

Relator Thomas Courtney was charged with child molestation. His trial commenced on January 19, 1988. The jury retired for deliberations about 3:00 p.m., on January 21, 1988, and all instructions were sent to the jury room. At 4:00 p.m., the jury sent a request to view certain evidence. Pursuant to the court's instructions the bailiff called both attorneys. Relator's counsel objected so the jury request was denied.

There is some conflict in the course of events but generally it appears the jury made two other requests of the court that were answered by the trial judge without her notifying Relator or his counsel. Relator's counsel called the bailiff numerous times during the evening asking if there was any news. He was told each time that nothing had transpired and that the jury was still deliberating. Between 11:00 and 11:30 p.m., Relator's counsel called the deputy prosecutor to see if she had any news. The deputy responded she was aware of a question from the jury on split verdicts which had been answered. Relator's counsel claims he had not been informed of the communication by the bailiff, whom he had called just two minutes before. Relator's counsel then immediately called Judge Gifford's office and asked the bailiff why he had not been told of the jury communication. The bailiff put Relator's counsel on hold and Judge Gifford came on the line and said there had been a communication on split verdicts which she had answered and that nothing further had been heard. It was later discovered the jury had also sent a question on reasonable doubt, which had been answered in writing by the court.

The judge stated that about 11:00 p.m., the bailiff brought a written note from the jury foreman requesting instructions on what to do if they could not reach an agreement on two counts but could reach an agreement on two other counts. She responded in writing at the bottom of the note that if they reached a verdict on any count, to sign the proper verdict form and return the remainder unsigned. The judge further stated the jury sent out a request asking the court the definition of reasonable doubt. She responded in writing at the bottom of this note that the jury was to reread the instructions which had been sent with the jury to the jury room. The judge also said she called the deputy prosecutor and discussed these requests with her and intended to call Relator's counsel following that conversation but received Relator's counsel's call before she had an opportunity to do so.

Within a short period of time Relator's counsel again called the court advising the defendant wished to have a hearing on a mistrial pursuant to the alleged violation of IC 34-1-21-6. Immediately after this phone call the bailiff received a note from the jury indicating they were divided on all four counts in a fifty-fifty split and could not reach a verdict on any counts. When Relator's counsel arrived to present his motion for declaration of a mistrial, he and the deputy prosecutor were advised to appear in court. The jury was then summoned into open court with all parties present. Upon questioning the jurors the court determined the jury was in fact evenly divided and had been for some time. The jury indicated they could not reach a verdict even if they were sent back to deliberate further. The court thereupon declared a mistrial and reset the matter for trial by jury one week later, February 8, 1988, without objection from any of the parties.

Relator moved for dismissal and discharge based on his right to be protected against double jeopardy pursuant to the Fifth and Fourteenth Amendments to the United States Constitution and Art. 1 of the Indiana Constitution. He also filed several motions for change of venue from the judge, which were denied. These two grounds are the basis for his Petition for Writ of Mandamus.

Relator's contention in seeking a writ based on the trial court's ruling on his motion to dismiss seems to be that he did not object to the trial court granting a mistrial due to the jury's inability to decide the case because he did not at that time know all of the facts. He later learned the trial court had answered questions from the jury and...