State v. Barry Chandler
| Decision Date | 12 November 1996 |
| Docket Number | No. 49A05-9601-CR-35,49A05-9601-CR-35 |
| Parties | STATE of Indiana, Appellant-Plaintiff, v. Barry CHANDLER, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Upon interlocutory appeal, the State challenges the trial court's setting aside of a jury verdict finding Barry Chandler guilty of child molesting, a class B felony. The State presents the following restated issue for review:
Did the trial court err in setting aside the guilty verdict on the basis that the court refused to grant the jury's request during deliberations to view anatomical drawings that had been admitted into evidence?
We reverse and remand.
Chandler was charged with molesting A.W., a six-year-old girl. Chandler had been married to A.W.'s mother but the two were divorced when the alleged molestation occurred. According to A.W., on an overnight visit to Chandler's house, she was awakened by Chandler when he placed his hand over her mouth. Chandler then disrobed, removed some of A.W.'s clothing, and forcibly performed sexual intercourse upon A.W. Afterwards, Chandler warned A.W. not to tell anyone what had happened or he would harm A.W.'s mother and sister.
A.W. eventually reported the incident to a babysitter, saying that a man "had touched her in a wrong way." Record at 345. The babysitter notified A.W.'s grandmother and the grandmother contacted the police. The police questioned Chandler, who denied any wrongdoing. After an investigation, Chandler was charged with child molesting and the case proceeded to a jury trial. The State presented several witnesses, including A.W., her grandmother, and the babysitter. The State also presented the testimony of Dr. Roberta Ann Hibbard, a pediatrician who examined A.W. after the alleged molestation occurred.
During Dr. Hibbard's testimony, the State introduced Exhibits 1 and 2, charts depicting female genitalia from different angles. The charts were introduced for demonstrative purposes and Dr. Hibbard referred to the charts while describing female genitalia generally and A.W.'s genitalia specifically. When asked to describe the results of A.W.'s examination and her conclusions, Dr. Hibbard testified:
For a child of this age, uh, and actually for a child, almost any child who is yet still prepubertal, before they have gone though puberty and are having periods, we consider the upper limits of normal [for the hymenal opening] to be 9 to 10 millimeters, and I say 9 to 10, because if you look at a 7-year-old, the absolute number is going to be, you know, 8.7, and if you look at an 8-year-old, it's 9.2, and if you look at a 9-year-old it's ... I personally use the limit of 10 millimeters, to give us a little bit of leeway, because there could be varying degrees of relaxation.
Record at 291. Dr. Hibbard then testified that A.W.'s hymenal opening measured thirteen millimeters. According to Dr. Hibbard, a thirteen-millimeter opening was "well beyond ... the normal range for a child of [A.W.'s] age," id. at 292, and was "suspicious for sexual abuse." Id. at 294-95.
After beginning its deliberations, the jury sent the following note to the court: "Could we please have medical drawings and a ruler?" Id. at 89. After receiving the note, the court summoned counsel and Chandler back into court, and the following colloquy ensued:
Record at 548-49. The court then responded to the jury as indicated. The jury deliberated for several hours after receiving the response and returned a verdict of guilty.
Before sentencing, Chandler submitted a motion to set aside the verdict on grounds of jury misconduct. Chandler alleged that the jury conducted unauthorized experiments during deliberations and utilized extrinsic materials not admitted into evidence in doing so. After a hearing, the court granted the motion. Because they reveal the trial court's rationale for granting the petition to set aside the verdict, we reproduce the comments of the court that accompanied the ruling:
Mr. Ortiz, Court hesitates to set aside a jury's verdict because the jury's verdict is so sacred. So, in this case I certainly can't find anything where they were influenced in any way. But, the concern that I have and I've had in other cases, Mrs. Hillenburg, Mr. Ortiz brings out their request for the medical drawings and a ruler. While [Mr. Ortiz] emphasizes the ruler, and I don't agree with that because it was not evidence [sic]. I have some real concern that we did not give the medical drawings to the jurors. That's because of Indiana Code 34-1-21-6 which says that after the jury have retired for deliberation, if there's 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, they may request the officer to conduct them into court where the information required shall be given in the presence of or after notice to the parties or their attorneys. Now, I know that this is not a point of law, so they are not asking to be informed on a point of law. And, they did not express a disagreement between them as to the medical drawings. But, Mrs. Hillenburg I've had so much trouble with this ... with justifying this because we don't have jurors that come right out and say we have a disagreement, we need to re-see the evidence. I almost think that when they ask for something, it's as if they do disagree or they don't understand it. That's been my concern for a long time in all these cases, in similar cases. And while I'm very hesitant to set aside a jury's verdict, I'm afraid that that's a court error that may indeed be prejudicial.
Record at 596-99. The trial court subsequently granted the State's Petition to Certify for Interlocutory Appeal and this appeal ensued.
This appeal involves the application of Ind.Code Ann. § 34-1-21-6 (West 1983), which governs jury requests for information submitted after deliberations have begun. The statute provides:
After the jury have retired for deliberation, if 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, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their attorneys.
In setting aside the verdict, the trial court appears to have concluded that IC § 34-1-21-6 requires the court to conduct the jury back into court and give them the requested information any time a jury makes a request to review evidence during deliberation. This view is erroneous.
We note that, after receiving the jury request, the court summoned counsel to discuss an appropriate response. The court specifically asked defense counsel's views upon the proposed response of simply telling the jury to re-read the...
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