Wallace v. State
| Decision Date | 10 June 1977 |
| Docket Number | No. 276S56,276S56 |
| Citation | 363 N.E.2d 956,266 Ind. 344 |
| Parties | Herman Darrell WALLACE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Stephen H. Meyer, Schererville, for appellant.
Theodore L. Sendak, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was charged by indictment of first-degree murder. Trial by jury resulted in a verdict of murder in the second-degree. Judgment was rendered sentencing appellant to the Indiana State Prison for not less than 15 nor more than 25 years.
The record discloses the following facts: On September 2, 1974, Patricia Aycock was married to the appellant, Herman Darrell Wallace. However, divorce proceedings had been filed. On the day in question Patricia Aycock had come to the trailer home of her estranged husband to retrieve some of her personal property. When she entered appellant was speaking to someone on the telephone and made remarks concerning the worth of his wife's life, whereupon she started to leave but was thrown against the wall by her husband.
The appellant then called his lawyer and then called the State Police, telling the police that he was going to kill his wife. At that time the appellant was pointing a gun at Patricia Aycock. Patricia Aycock's father, the decedent in this case, was informed of his daughter's plight in her husband's home and went to her aid. In the meantime, the appellant had laid the gun down and gone into the kitchen part of the trailer. Patricia Aycock had laid the gun on the floor. As Patricia Aycock's father came into the trailer, the appellant again picked up the gun and a confrontation occurred between the appellant and Patricia Aycock's father. The father was unarmed, but instructed his daughter to go into the other part of the trailer and retrieve her personal goods, whereupon the appellant shot his father-in-law. Patricia Aycock ran from the trailer to summon aid and testified she heard further shots after she left the trailer. She later saw her father lying beside the trailer steps, at which time he was dead.
Appellant first claims the trial court erred in overruling the ground in his motion to correct errors that during the deliberations of the jury, the jury foreman asked the bailiff if they could have copies of the instructions, to which the bailiff answered that they could not. It is appellant's position that it was error for the bailiff to undertake to answer such a question, that it should have been relayed to the trial judge and that the jury should have been returned to the court room in the presence of the parties for the answering of the question. The question was presented to the trial court by the affidavit of the foreman of the jury and by his testimony at the hearing on the motion to correct errors. The only reply given by the State of Indiana to this allegation is that a juror may not impeach his verdict.
The State's proposition of law is correct but not applicable to this particular case. The affidavit of the juror does not question the verdict, but goes to alleged misconduct by the bailiff. We therefore turn to the content of the affidavit and the testimony of the foreman of the jury. The foreman stated that shortly after entering the jury room and choosing him as foreman, it was observed that the list of instructions was quite long and complicated and that it would help if they could have them to read in the jury room. Other members of the jury had served previously in cases and informed the foreman that they would not be permitted to have the written instructions in the jury room, to which he replied that it would not hurt to ask. He summoned the bailiff to the door and asked if they could have written copies of the instructions, to which the bailiff informed them they could not. The foreman also testified that even though the jurors felt the instructions were long and complicated, they nevertheless felt that between the twelve of them they could remember the instructions and could proceed.
There is nothing in either the affidavit or the testimony of the foreman of the jury that they entertained any idea of having the instructions reread to them. From the total evidence presented by the foreman of the jury, it is apparent that many of the jurors knew the correct answer to the question concerning the instructions and that the bailiff merely reaffirmed what other members of the jury had told the foreman. The situation in the case at bar does not rise to the gravity of the situation in the case of Deming v. State (1956), 235 Ind. 282, 133 N.E.2d 51 cited by the appellant.
In the Deming case the Court first states that technical errors or defects which do not, in the opinion of the Court, prejudice the substantial rights of a defendant present no reversible error. The Court went on to observe however that in the Deming case the jury had asked the bailiff a legal question concerning the possibility of parole of the defendant if they returned a verdict of guilty, and the bailiff undertook to give them a legal answer to the question. The Court observed that this was in fact more than a technical error or defect and was an illegal instruction given by the bailiff to the jury out of the presence of the parties and out of the courtroom.
In the case at bar the question was a simple...
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Bruce v. State
...of harm; such communications usually involve ex parte delivery of legal opinions or instructions to the jury. Wallace v. State, (1977) Ind., 363 N.E.2d 956; Turner v. State, (1970) 254 Ind. 91, 257 N.E.2d 825; Deming v. State, (1956) 235 Ind. 282, 133 N.E.2d 51. In this case appellant has n......
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Everroad v. State
...86, a juror's affidavit may be considered where, as here, the alleged misconduct is that of a third person. See Wallace v. State (1977), 266 Ind. 344, 346, 363 N.E.2d 956, 957. We have examined the jurors' affidavits carefully. One juror could not remember what the bailiff told the jury; th......
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State v. Winters
... ... 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 ... ...
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Stader v. State
...only applies in cases in which the bailiff gives an answer to a legal question amounting to an illegal instruction. Wallace v. State, (1977) 266 Ind. 344, 363 N.E.2d 956. In the Wallace case, the jury foreman asked if they could have written copies of the instructions, to which the bailiff ......