Walker v. State, No. 1278S294

Docket NºNo. 1278S294
Citation410 N.E.2d 1190, 274 Ind. 224
Case DateSeptember 26, 1980
CourtSupreme Court of Indiana

Page 1190

410 N.E.2d 1190
274 Ind. 224
Terrance WALKER, Johnny Hodge, and Jackie Hicks, Appellants
(Defendants Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1278S294.
Supreme Court of Indiana.
Sept. 26, 1980.

[274 Ind. 225]

Page 1191

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.

[274 Ind. 226] 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

Page 1192

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...

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25 practice notes
  • Schiro v. Clark, No. 91-1509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 8 Septiembre 1992
    ...v. State, 498 N.E.2d 924, 929 (Ind.1986), and cases in which jurors see a shackled prisoner during court proceedings, Walker v. State, 274 Ind. 224, 410 N.E.2d 1190, 1193-1194 (1980). That court has held that reasonable jurors can expect a criminal defendant to be in manacles and shackles d......
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • 28 Junio 1989
    ...prevent the escape of the accused, to protect everyone in the courtroom, and to maintain order during the trial. Walker v. State (1980), 274 Ind. 224, 410 N.E.2d 1190 (citing Illinois v. Allen (1970), 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353). The accused's freedom from shackles is an im......
  • Bivins v. State, No. 06S00-9105-DP-00401
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Noviembre 1994
    ...his escape, to protect those present in the courtroom, and to maintain order during the trial. Id. at 1238 (citing Walker v. State (1980), 274 Ind. 224, 229, 410 N.E.2d 1190, 1193). Upon appellate review of an order to restrain the defendant, we consider whether the trial court abused its d......
  • Roche v. Anderson, No. 3:98 CV 347 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 6 Febrero 2001
    ...its basic holding of the use of shackling. The Indiana Supreme Court had already recognized this holding in its case Walker v. State, 274 Ind. 224, 410 N.E.2d 1190 (1980), when it quoted as follows: "`[t]he rule that a prisoner brought into court for a trial is entitled to appear free from ......
  • Request a trial to view additional results
25 cases
  • Schiro v. Clark, No. 91-1509
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 8 Septiembre 1992
    ...v. State, 498 N.E.2d 924, 929 (Ind.1986), and cases in which jurors see a shackled prisoner during court proceedings, Walker v. State, 274 Ind. 224, 410 N.E.2d 1190, 1193-1194 (1980). That court has held that reasonable jurors can expect a criminal defendant to be in manacles and shackles d......
  • Kindred v. State, No. 685S224
    • United States
    • Indiana Supreme Court of Indiana
    • 28 Junio 1989
    ...prevent the escape of the accused, to protect everyone in the courtroom, and to maintain order during the trial. Walker v. State (1980), 274 Ind. 224, 410 N.E.2d 1190 (citing Illinois v. Allen (1970), 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353). The accused's freedom from shackles is an im......
  • Bivins v. State, No. 06S00-9105-DP-00401
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Noviembre 1994
    ...his escape, to protect those present in the courtroom, and to maintain order during the trial. Id. at 1238 (citing Walker v. State (1980), 274 Ind. 224, 229, 410 N.E.2d 1190, 1193). Upon appellate review of an order to restrain the defendant, we consider whether the trial court abused its d......
  • Roche v. Anderson, No. 3:98 CV 347 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • 6 Febrero 2001
    ...its basic holding of the use of shackling. The Indiana Supreme Court had already recognized this holding in its case Walker v. State, 274 Ind. 224, 410 N.E.2d 1190 (1980), when it quoted as follows: "`[t]he rule that a prisoner brought into court for a trial is entitled to appear free from ......
  • Request a trial to view additional results

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