Walker v. State

Decision Date26 September 1980
Docket NumberNo. 1278S294,1278S294
Citation410 N.E.2d 1190,274 Ind. 224
PartiesTerrance WALKER, Johnny Hodge, and Jackie Hicks, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Ronald V. Aungst, Valparaiso, for appellants Terrance Walker and jackie hicks.

Nile Stanton, Indianapolis, for appellant Johnny Hodge.

Theodore L. Sendak, Atty. Gen. of Ind., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendants (Appellants) were convicted in a trial by jury of Murder in the First Degree and were sentenced to life imprisonment. One issue presented by their direct appeal compels us to reverse the judgment.

The trial began on Monday, June 26, 1978. Presentation of evidence was completed, the jury instructed and jury deliberations commenced at approximately 2:30 p. m. on Friday, June 30, 1978. After eight hours of deliberations, the trial judge summoned the Jury foreman, defense counsel and the prosecutor to his chambers. It was determined that the jury had thus far been unable to reach a verdict, whereupon the jury, over objection of defense counsel, was instructed to adjourn until Wednesday morning, July 5th, and then to reconvene to continue deliberations. A brief admonition was given not to read about the case or discuss it among themselves or with others.

When court reconvened on the morning of July 5th, the jury was collectively interrogated: "The court simply wants to know if any of you violated the court's instruction not to discuss the case among yourselves or with anyone over the weekend or if anybody happened to bother any member of the jury. Any of you?" No response was had, and the court regarded such silence as a negative reply.

The defendants moved for a mistrial for several reasons, among them the aforementioned separation of the jurors and the publication of a newspaper article in the interim which reported that the decedent had, prior to his death, stated that one of the defendants had shot him. Testimony of the decedent's statement had been offered and rejected during the trial. The motion was overruled.

Deliberations were resumed, and approximately one hour later, the jury returned with verdicts of guilty of first degree murder as to all three defendants.

The action of the trial court in permitting the jury to so separate was in direct contravention of the governing statute, which is as follows:

"After hearing the charge, the jury may either decide in court or retire for deliberation. They may retire under the charge of an officer, who must be sworn by the clerk to keep them together in some private and convenient place, and furnish them food as directed by the court, and not permit any person to speak or communicate with them, nor do so himself unless by order of the court, or to ask them whether they have agreed upon their verdict, and return them into court, when so agreed, or when ordered by the court. The officer shall not communicate to any person the state of their deliberations; and if he does he shall be punished as for a contempt, and shall not be further employed as a bailiff in such court. (Acts 1905, ch. 169, § 265, p. 584.)" Ind. Code § 35-1-37-4 (Burns 1979 Repl.).

We read the statute as requiring the jury to remain together in criminal cases, once their deliberation begins and until a verdict is returned. Whitaker v. State, (1960) 240 Ind. 676, 692, 168 N.E.2d 212, 220, (concurring opinion of Arterburn, J.), although limited exceptions have been made under exigent circumstances.

In Gibson v. State, (1971) 257 Ind. 23, 29, 271 N.E.2d 706, 709, we held that there was no cause for reversal where one juror after commencement of deliberation, separated herself briefly from the others, because of illness and it was disclosed by the record that harm could not have resulted. In Jones v. State, (1899) 152 Ind. 318, 53 N.E. 222, a brief separation of the jurors was unavoidable, but the juror was never out of the sight of the Bailiff, thus it was shown that no harm could have resulted. And in Bryant v. State, (1964) 246 Ind. 17, 202 N.E.2d 161, the court permitted a juror to telephone his home to give instructions concerning his live stock. We there wrote disapprovingly of any irregularities during deliberations but affirmed because it was shown that the call could not have prejudiced the appellant. A concurring opinion pointed out that a separation of a juror without a hearing, out of the presence and without consent of the defendant's counsel is always fraught with peril.

"Ordinarily prejudice and injury to the defendant would be presumed by the juror being separated from his fellow jurors under the circumstances here delineated. In the instant case, however, appellant makes no allegation of injury by reason of the action herein complained of." 246 Ind. at 22, 202 N.E.2d at 164.

Sealed verdicts, by express leave of court, have been accepted, where no harm could be shown. Beyerline v. State, (1896) 147 Ind. 125, 45 N.E. 772; Clayton v. State, (1884) 100 Ind. 201.

Under a statute almost identical to our own the Supreme Court of Missouri has consistently held that it is error per se for the jury to separate after deliberations have begun. State v. Edmondson, (Mo.1971) 461 S.W.2d 713, 723-4; State v. Jones, (1953) 363 Mo. 998, 1007, 255 S.W.2d 801, 806, and cases cited therein. In accord is People v. Ritzert, (1974) 17 Ill.App.3d 791, 795-6, 308 N.E.2d 636, 639, decided under a similar statute and Kimoktoak v. State, (Alaska 1978) 578 P.2d 594, decided under a rule of Court. Although the courts of most states having no such statute have held the matter to be subject to the discretion of the trial judge, separation is per se error by virtue of case law alone in Massachusetts. Commonwealth v. Della Porta, (1949) 324 Mass. 193, 85 N.E.2d 248.

There is no suggestion that the inordinately lengthy separation of the jurors was occasioned for any reason other than convenience.

The State urges that, assuming error in permitting the separation, it is, nevertheless, incumbent upon the defendants to demonstrate how they were, thereby harmed. The law is clearly against this position. Even in the cases hereinbefore cited where we affirmed, notwithstanding separations occasioned by exigent circumstances, we have stated that it appeared from the records that the appellants could not have been harmed. Clearly the burden in this respect is upon the State.

In Riley v. State, (1884) 95 Ind. 446, the jury had separated without permission of the court. In that case, it was urged that the error was harmless because the affidavits of the errant jurors revealed that they did not talk to anybody about the case. Quoting from a similar case, Creek v. State, (1865) 24 Ind. 151, the court there said at p. 450:

" * * * 'The sum of the modern authorities is, that such conduct on the...

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