Waye v. State

• Decision Date: 26 October 1970
• Docket Number: No. 268S35,268S35
• Citation: 263 N.E.2d 165,255 Ind. 136
• Parties: Robert Eugene WAYE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 165

263 N.E.2d 165

255 Ind. 136

Robert Eugene WAYE, Appellant, v. STATE of Indiana, Appellee.

No. 268S35.

Supreme Court of Indiana.

Oct. 26, 1970.

Carl J. Sandy, Lafayette, for appellant.

Theodore L. Sendak, Atty. Gen., Richard V. Bennett, Deputy Atty. Gen., for appellee.

GIVAN, Judge.

Appellant was found guilty of the crime of second degree burglary after a trial by jury. Appellant was sentenced to the Indiana State Prison for a term of not less than two nor more than five years.

Although appellant assigns as error the overruling of his motion for a new trial and his belated motion for new trial, the only argument which appellant presents to this Court concerns alleged misconduct of the jury in what appellant claims is an unauthorized view of the premises. The other issues which were raised in appellant's motions for new trial and in his assignment of errors were neither briefed nor argued before this Court, and are, therefore, deemed to have been waived. Krivanek v. State (1969), Ind., 247 N.E.2d 505, 17 Ind. Dec. 489.

The appellant was accused of burglarizing a business establishment in downtown Lafayette, Indiana, known as Wagon Wheel Inc. doing business as the Fireside Lounge.

A police officer had testified at the trial that while seated in his patrol car at an intersection some 200 feet from the building in question he observed the appellant emerge from the building.

Affidavits submitted by the foreman of the jury and one other member of the jury read as follows:

'STATE OF INDIANA)

COUNTY OF TIPPECANOE) SS:

'AFFIDAVIT

'Comes now Gilbert S. Banker, being first duly sworn upon his oath and says:

'1. That he sat as a juror in the criminal trial of Robert E. Waye on November 14, 1967, the same being Cause No. S--3165 in Tippecanoe County, Indiana.

'2. That he was selected as foreman in said jury.

'3. That on the 15th day of November, 1967, at a time after which the cause had been submitted to the jury, a first ballot was taken by said jury with the results being, to the best of his memory, 7 votes of guilty and the balance being not guilty or undecided.

'4. That throughout the entire deliberations of said jury upon the question of second degree burglary, the crucial element upon which the jury disagreed was that of entry of the defendant.

'5. That after the abovementioned first ballot, the jury was taken by the bailiff to the Downtowner Restaurant.

'6. That upon going to and returning from said restaurant, the jury had occasion to and did view the scene of the alleged crime.

'7. That after returning to said jury room, the views observed by the jurors were openly discussed by all jurors present.

'8. That the question of entry depended directly upon the jury's determination as to whether Officer Mosier was clearly able to see the defendant entering or exiting from said building.

'9. That said jurors, in their deliberations, discussed the view which they had observed in relation to that which Officer Mosier had testified to having seen.

"EXHIBIT A'

'10. That the jury openly discussed what they had observed in relation to the fact that the scene was dark both at the time which they observed it and at the time referred to in Officer Moser's testimony.'

'STATE OF INDIANA)

COUNTY OF TIPPECANOE) SS:

'AFFIDAVIT

'Comes now Patricia Eylens, being first duly sworn and upon her oath says:

'1. That she sat as a juror in the criminal trial of Robert E. Waye on November 14, 1967, the same being Cause No. S--3165 in Tippecanoe County, Indiana.

'2. That on the 15th day of November, 1967, at a time after which the cause had been submitted to the jury, several ballots were taken by said jury with the results being that the jury was undecided as to its verdict.

'3. That throughout the deliberations of said jury, upon the question of the guilty or innocence of the defendant on the charge of second degree burglary, the element upon which the jury disagreed was that of entry by the defendant.

'4. That after the above-mentioned ballots, the jury was taken by the bailiff to the Downtowner Restaurant for dinner.

'5. That upon going to and returning from said restaurant, the jury had occasion to and did view the scene of the alleged crime.

'6. That after returning to said jury room, the views observed by the jurors were openly discussed in the presences of all jurors.

'7. That the above-mentioned question of entry clearly depended upon the jury's determination as to whether prosecuting witness Edward Moser was able to see the defendant entering or exiting from said alleged scene in view of the conditions prevailing, to-wit: darkness and distance.

'8. That said jurors, in their deliberations, discussed the view which they had observed in relation to that which Edward Moser had testified to having seen, and at that time compared said said views and considered the fact that they had observed the

"EXHIBIT C'

Scene after dark and from the approximate distance at which Mr. Moser testified to having observed the scene.

'9. That affiant believes that these deliberations regarding their view of the scene contributed to some degree to the ultimate verdict of the jurors in regard to the element of entry.'

The State filed the affidavit of the bailiff, which affidavit reads as follows:

'STATE OF INDIANA)

TIPPECANOE COUNTY) SS:

'AFFIDAVIT

'Richard Vandermay, Sr., being first duly sworn upon his oath, deposes and says:

'1. That he was the baliff for the Superior Court of Tippecanoe County in the criminal trial of Robert E. Waye on November 14, 1967, the same being Cause No. S--3165.

'2. That on the 15th day of November, 1967, the said cause was submitted to the Jury and they commenced their deliberations.

'3. That while the Jury was deliberating said cause, the Jury was taken by the baliff from the Tippecanoe County Courthouse east on the north side of Main Street to the Downtowner Restaurant which is located east of the intersection of Fifth Street and Main on the North side of Main Street in the City of Lafayette, Indiana, at approximately 5:55 P.M. C.D.T. for their dinner.

'4. After the completion of the Jury's dinner, the Jury returned to the Tippecanoe County Courthouse by the same route.

'5. At no time did the Jury or any of its members while in the custody of the baliff going to the restaurant or returning to the Courthouse, walk past the Fireside Lounge which is located north on Fifth Street, the third business door north of the intersection of Columbia and Fifth Street in the City of Lafayette, Indiana.

'6. That at no time while the baliff was conducting the Jury to and from its meal did the baliff observe any of the jurors stopping and looking at the Fireside Lounge, nor did the baliff overhear any of the jurors discussing the entrance to the Fireside Lounge nor any of the testimony of any of the witnesses concerning the entrance or view of the Fireside Lounge.'

The appellant recognizes the well established principle that jurors cannot impeach their own verdicts. Krivanek, supra; Luck v. State (1884), 96 Ind. 16. The appellant, however, maintains that this case falls within an exception to the rule in that the jurors made an unauthorized visit to the scene of the crime, and the influence of this unauthorized view is admissible under the rules set out under Conrad v. State (1896), 144 Ind. 290, 43 N.E. 221.

An examination of the affidavits filed in this case, however, discloses that the factual situation here more nearly parallels that in Luck, supra, rather than in Contrad. In Luck the Court held that the mere fact that the jury walked past the scene of the crime is not prejudicial unless they were subjected to improper influences.

In Conrad it was pointed out that 11 of the 12 jurors made an unauthorized visit to the jail to view the chambers where an alleged unsuccessful suicide attempt had taken place. The Court distinguished the Conrad factual situation from Luck by stating:

'* * * In the present case, however, the misconduct was that the jurors in violating the injunction of the court and in not only making a view of the location without the permission of the court or the consent of all the parties, but in conversing with and permitting witnesses in the case to converse with them about a material question in the case, and in making experiments to illustrate the suggestion of such witnesses.' * * *

'In the present case, while engaged in an unauthorized act, the jurors do that which, strictly speaking, they had no right to do, that is to say, they conversed with others upon a question of importance in the case and made illustrations to prove the truth or falsehood of the appellant's evidence of insanity. Can it be said that because the evidence clearly shows the appellant's guilt, that such conduct was not prejudicial to his rights? We think it cannot.'

We find nothing in the case at bar to parallel the situation before the Court in Conrad. In the case at bar the factual situation as set out in the affidavits does not indicate that any special trip was made to view the premises. The jurors were simply on a direct route from the courthouse to a nearby restaurant when they passed within sight of the scene of the crime. There is no indication in any of the affidavits that any third person communicated with them concerning their viewing of the scene or that they had any type of meeting at the scene or conducted any experiments. The mere fact that they passed near the scene of the alleged incident appears to have had no more influence upon their determination than the fact that the scene was a public location in downtown Lafayette. The trial court entertained both the affidavits of the jurors and the affidavit of the bailiff and did not find cause for the granting of a new trial. We find no error in the trial court's ruling.

We feel that this case comes within the principles enunciated in Luck, supra. We would point out, however, the Court in Luck saw fit to criticize the bailiff for his activities in that...