Turczi v. State, 672S79

• Decision Date: 17 October 1973
• Docket Number: No. 672S79,672S79
• Citation: 261 Ind. 273,301 N.E.2d 752
• Parties: Michael R. TURCZI, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 752

301 N.E.2d 752

261 Ind. 273

Michael R. TURCZI, Appellant, v. STATE of Indiana, Appellee.

No. 672S79.

Supreme Court of Indiana.

Oct. 17, 1973.

W. Henry Walker, Walker & Walker, East Chicago, John S. Diaz, Diaz & Moore, Portage, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

ARTERBURN, Chief Justice.

Appellant was indicated by a Lake County Grand Jury for murder in the first degree. The case was venued to the Porter Superior Court and tried by a jury during October 12--20, 1971. The jury found the Defendant-Appellant guilty and affixed his penalty as death. On November 18, 1971, the Court rendered judgment, sentencing the Appellant to die by electrocution. From this judgment, Appellant appeals to this Court.

Appellant first presents a group of alleged errors pertaining to the conduct of the jury in discussing the case among themselves before submission. The validity of these allegations rests solely upon affidavits by an alternate juror. There was no supporting evidence from the bailiff in the matter. It is well-established in Indiana that a juror may not be affidavit impeach the verdict. The sanctity of verdicts would otherwise be diminished and no verdict could ever be final. Jurymen would forever be harassed. Meno v. State (1925), 197 Ind. 16, 164 N.E. 93; Hutchins v. State (1898), 151 Ind. 667, 52 N.E. 403; Houk v. Allen (1890), 126 Ind. 568, 25 N.E. 897.

The question thus becomes whether an alternate juror is, under these circumstances, to be considered a 'juror.' A juror is a person who is sworn or affirmed to serve on a jury. 50 C.J.S. Juries § 1 (1947). An alternate juror is such a person. Moreover, our T.R. 47(B) which creates the category of jurors designated 'alternate jurors' states that:

The court may direct that not more than six (6) jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors . . .

It is clear that the concept of 'alternate jurors' was created to improve judicial efficiency by eliminating the need for retrials in situations where a juror, during the progress of a trial, becomes unable to perform his duties. It was not intended that the rule dilute the principle of the sanctity and finality of verdicts. Consequently, an alternate juror who has been privy to the jurors' conduct because he has taken the same oath as the regular jurors and performed all functions, except the final deliberation, of the regular jurors should be subject to the rule which protects the sanctity and finality of the jury verdict. Therefore, we hold that an alternate juror, as well as a regular juror, may not impeach the verdict.

Appellant also suggests that certain trial conduct of the prosecutor in this case was improper. Although Appellant has failed to follow AP. 8.3(A)(7) in that he has not in the argument section of his brief specifically set out the conduct he complains of and the reasons why such conduct was improper, we have culled the instances--about seven in number--from the 'Statement of Facts' portion of Appellant's brief. Our conclusion is that the conduct complained of does not warrant reversal. The conduct complained of does not transgress the standards set out in White v. State (1971), Ind., 272 N.E.2d 312, where Justice Prentice stated that the burden is on the party claiming error to show that he was harmed and that this may be done by showing that the aggrieved party was placed in a position of grave peril by the conduct complained of. The conduct here, in our opinion, does not reach that standard.

Appellant next argues that the evidence upon which to base a conviction was insufficient. Briefly, the evidence reveals that Appellant and one Hudkins about 3:00 a.m. in the morning of November 28, 1970, went to the home of one Bobis. Bobis apparently turned State's evidence and became the crucial witness for the prosecution. His testimony was that upon being summoned by Appellant and Hudkins, whom he knew, all three men got into Appellant's car and drove to a gas station where they met, by apparent prearrangement, the victim. The victim, Appellant who was now displaying a gun and giving orders, and Bobis got into a second car while Hudkins remained with Appellant's car. Bobis, on orders from Appellant, drove to a wooded area. The road ended near a swamp, and Bobis stopped the car, and, at Appellant's command, shut off the ignition and the lights. Bobis, now thoroughly frightened, bolted from the car and began running. He heard four or five shots. Appellant soon overtook Bobis, put his arm around...