State v. Winters

• Decision Date: 04 April 1997
• Docket Number: No. 49A02-9604-PC-248,49A02-9604-PC-248
• Citation: 678 N.E.2d 405
• Parties: STATE of Indiana, Appellant-Respondent, v. Arnold WINTERS, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 405

678 N.E.2d 405

STATE of Indiana, Appellant-Respondent, v. Arnold WINTERS, Appellee-Petitioner.

No. 49A02-9604-PC-248.

Court of Appeals of Indiana.

April 4, 1997.

Pamela Carter, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, for Appellant.

Susan K. Carpenter, Public Defender of Indiana, Janice L. Stevens, Deputy Public Defender, Indianapolis, for Appellee.

OPINION

KIRSCH, Judge.

The State of Indiana appeals the granting of post-conviction relief to Arnold Winters. We restate the sole issue for review as whether the post-conviction court erroneously vacated Winters' convictions because of its determination that the trial court committed fundamental error by ex parte communications with the jury during deliberations and failing to comply with the provisions of IC 34-1-21-6 regarding jury requests for information.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

The facts underlying Winters' convictions were set forth by our supreme court in his direct appeal:

"On the evening of July 23, 1986, Eugene Kee and Melvin McCullough, who were security guards, heard an argument in progress between brothers Jay Winters and Donnie Winters. The officers approached the two and asked them what their problem was. They responded that the officers should not worry about it, that it was between them, at which time the officers asked them to leave the premises.

"Jay then pushed Officer Kee and Kee pushed him back. Jay then hit Kee with his elbow whereupon Kee drew a pistol and a pair of handcuffs and hit appellant in the face with the handcuffs. At that time, Jay and Donnie agreed to leave and began to walk away followed by the officers. However, they again started arguing, and Officer Kee again intervened. They stopped arguing and started to walk away. At this time, appellant, who was a brother to Jay and Donnie, approached from behind the officers, placed a pistol to the back of Kee's head and fired a shot which killed Kee. McCullough drew his pistol and fired a shot.

"Jay and Donnie grabbed McCullough by the arms and disarmed him. In the struggle, however, McCullough managed to jam the mechanism of his pistol. Jay then gained possession of the disabled pistol and attempted to fire it at McCullough but was unable to do so. Jay again grabbed one of McCullough's arms while Donnie held the other arm. Appellant then walked up to McCullough and shot him in the face. McCullough fell backward. He attempted to draw a second pistol which he was carrying strapped to his ankle. Appellant then fired another shot into McCullough's buttocks.

"McCullough stood up and appellant handed a pistol to Jay, and Jay shot McCullough in the back. McCullough fell to the ground, and Jay walked up to him and shot him in the groin. When McCullough continued to struggle, Jay observed that: "[He] ain't dead yet." One of the brothers then advised him to shoot him in the head like they had shot the other officer. Jay walked up to McCullough and just as he fired, McCullough moved his head to one side and the bullet missed. This apparently was not observed by Jay because he declared McCullough to be dead and left the scene.

"Donnie and appellant went to the apartment of a friend where they stated they had just shot and killed someone, and they needed a ride out of town. Their friend took them to Louisville. During that period, they stated that they had done the shooting and their brother Jay had not participated in the shooting. The facts of the shooting as above recited were testified to by McCullough who survived the attack. However, Dee Antoinette Keller, a 13-year-old girl who witnessed the shooting, stated that she saw appellant fire the shots, that she did not see Jay with a gun, nor did she see him shoot anybody."

Winters v. State, 530 N.E.2d 291, 292 (Ind.1988).

During deliberations, the jury foreman sent a note to the trial court which read:

"Can we the jury, listen to only a portion of the tape recording made during this subject case--(Melvin Mccullough) [sic ]

James R. McKnight

Foreman"

Record at 108. ¹ Neither the judge nor the attorneys received notice of the note. Instead, the bailiff denied the jury's request by writing "no" on the bottom of the noted and initialing it. Record at 108.

The jury sent a second request which read:

"To: Judge Alsip 6/10/87

Can we the jury obtain a written definition of the aiding and abetting portion of the Law [sic ] as it applys [sic ] to this subject case.

James R. McKnight

Foreman"

Record at 109. Again, neither the judge nor the attorneys received notice of the jury's request. The Record does not indicate whether there was any response to the request. ² The jury convicted Winters of murder, attempted murder, and robbery. Our supreme court affirmed those convictions on direct appeal. Winters, 530 N.E.2d at 291. Winters sought post-conviction relief on several grounds: (1) denial of his constitutional right to be present during all critical stages of his criminal proceeding; (2) the failure to instruct as to Winters' specific intent to kill in the attempted murder instruction; (3) the violation of his double jeopardy protections; and (4) ineffective assistance of trial and appellate counsel. The post-conviction court agreed with assertions (1)-(3), found them to be fundamental error, vacated all of Winters' convictions, and ordered new trials. The court disagreed with assertion (4) and found that Winters received effective assistance of trial counsel. The court made no finding, however, with respect to the performance of his appellate counsel. The State appeals solely on the basis of the jury communication. Because the State does not challenge the post-conviction relief granted for the attempted murder and robbery convictions, this opinion addresses only the post-conviction relief granted for the murder conviction.

STANDARD OF REVIEW

When the State appeals the granting of post-conviction relief, the standard of review applicable to negative judgments does not apply. State v. Lime, 619 N.E.2d 601, 603 (Ind.Ct.App.1993), trans. denied (1994). We review under the standard noted in Ind.Trial Rule 52(A). Id. Under that standard, this court will not set aside the findings or judgment unless clearly erroneous, with due regard given to the trial court's ability to judge witness credibility. T.R. 52(A).

DISCUSSION AND DECISION

The State asserts that the bailiff's communication with the jury did not amount to reversible error. We disagree.

When a court engages in ex parte communications with a jury, an inference of prejudice arises, creating a rebuttable presumption that error has been committed. Madden v. State, 656 N.E.2d 524, 526 (Ind.Ct.App.1995), trans. denied. This rebuttable presumption of error also exists in cases when a bailiff communicates with the jury outside of the defendant's presence. Driver v. State, 594 N.E.2d 488, 493 (Ind.Ct.App.1992), trans. denied. To be reversible error, the bailiff's conduct must prejudice a defendant's substantial rights. Bartruff v. State, 528 N.E.2d 110, 120 (Ind.Ct.App.1988), trans. denied (1989). Prejudicial conduct usually amounts to the bailiff answering a legal question or providing additional instructions to the jury. Wallace v. State, 266 Ind. 344, 346-47, 363 N.E.2d 956, 957 (1977); Harrison v. State, 575 N.E.2d 642, 649-50 (Ind.Ct.App.1991); Stader v. State, 453 N.E.2d 1032, 1035 (Ind.Ct.App.1983); Laine v. State, 154 Ind.App. 81, 85-86, 289 N.E.2d 141, 143-44 (1972).

With respect to ex parte communications between court officials and juries, reviewing courts have held that where the ex parte communication is only a refusal of a jury's request, the presumption of harm to the defendant was rebutted. See, e.g., Martin v. State, 535 N.E.2d 493, 497 (Ind.1989); Marsillett v. State, 495 N.E.2d 699, 709 (Ind.1986); Kiner v. State, 643 N.E.2d 950, 955 (Ind.Ct.App.1994). Here, the bailiff simply refused the jury's requests. Due to the nature of the jury's requests, however, we cannot say that the State rebutted the presumption of harm to Winters.

At issue here is the trial court's failure to follow the mandate of IC 34-1-21-6 which provides:

"After the jury have [sic ] 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."

This statute sets forth a mandatory procedure for the court to follow when the jury disagrees as to any part of the testimony and when the jury wishes to be informed as to any point of law arising in the case. If either situation arises, the trial court must notify the parties or their attorneys and provide the necessary information in open court.

With respect to the manifestation of jury disagreement, reviewing courts have interpreted this provision to apply usually when there is open and obvious disagreement among jury members. See, e.g., Survance v. State, 465 N.E.2d 1076, 1082-83 (Ind.1984) (finding jury request to hear a portion of testimony did not manifest disagreement); Grayson v. State, 593 N.E.2d 1200, 1205-06 (Ind.Ct.App.1992) (finding jury's request, " 'We need to review Mr. Grayson's testimony from his lawyer[,]' " did not manifest disagreement); Dowdy v. State, 672 N.E.2d 948, 953-54 (Ind.Ct.App.1996) (finding jury's request, "Need to review testimony of Mr. Cooley[,]" did not manifest disagreement). We note, however, that juries may manifest disagreement about testimony by requesting to rehear it. Brownlee v. State, 555 N.E.2d 505, 508 (Ind.Ct.App.1990). Indeed, we question why a jury that was in agreement as to the testimony at issue would request to rehear it.

In Brownlee, the defendant was prosecuted for attempted murder and armed robbery. His alibi defense rested on...