York v. State

• Decision Date: 26 September 1978
• Docket Number: No. 2-1277A475,2-1277A475
• Citation: 380 N.E.2d 1255,177 Ind.App. 568
• Parties: William T. YORK and Darl Havens, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 1255

380 N.E.2d 1255

177 Ind.App. 568

William T. YORK and Darl Havens, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-1277A475.

Court of Appeals of Indiana, Fourth District.

Sept. 26, 1978.

Harriette Bailey Conn, Public Defender, David P. Freund, Bobby Jay Small, Robert W. Hammerle, Deputy Public Defenders, Indianapolis, for appellants.

Theo. L. Sendak, Atty. Gen., Robert J. Black, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

Defendants William T. York (York) and Darl Havens (Havens) were convicted of first degree burglary ¹ and of entering to commit a felony, ² respectively. They bring this appeal, challenging certain alleged irregularities in the trial court proceedings, the admission of an exhibit into evidence, the consistency of the verdicts, and the sufficiency of the evidence to support Havens' conviction. Finding no reversible error, we affirm.

The evidence favorable to the verdicts reveals the following. Early in the morning of April 23, 1974, a couple, the Caudills, residing in Fowlerton, a Grant County town, awoke to prepare for work. They noticed that a green van was repeatedly circling through their neighborhood. Such behavior aroused their suspicion. They scrutinized the van from the front window of their house, a distance of about twenty-five feet, and recognized the van as belonging to a local motorcycle gang known as the Outlaws.

This identification fortified the couple's suspicions. They pretended to leave for work as normal. After driving a short distance they circled back to their residence and discovered that the van was parked in front of their house. They then drove to the home of the town marshall and returned with him to the scene. The marshall in company with the wife approached the residence. A window in the front door had been broken. The interior of the house was ransacked. Some of the appliances had been disconnected and moved about. A window in the rear of the house, which had been nailed shut, was now open. The wife glanced through the window and observed a shadowy form fleeing the house. She later identified this person as defendant Havens and as fitting the description of the person who had earlier been seated on the passenger side of the van. The marshall withdrew from the residence to call for assistance over his radio. While seated in his car, he saw York run from the residence to the van. The marshall intercepted York before he could drive away.

Immediately after these initial events more law enforcement personnel converged on the scene. They dispersed through the neighborhood and the surrounding area in order to search for the fleeing figure whom Mrs. Caudill had spotted from the window. Approximately forty minutes later and at a distance of one and eight-tenths miles from the Caudill residence, these law officers spotted a solitary figure walking along a country road. This individual was Havens. The testimony of one of the officers discloses that no person other than Havens was observed on foot at that early hour of the morning. The officers returned with Havens to the Caudill residence. The Caudills identified him as being one of the occupants of the van.

We turn now to the issues before us and first consider certain alleged errors which occurred during the course of the trial.

On redirect examination Mrs. Caudill was questioned about the "Outlaws." Specifically, she was asked, "Do you know what Outlaws do?" She responded, "Yes, and I am afraid up here right this morning when I am testifying." Defense counsel objected and moved for a mistrial, claiming prejudice and claiming that the remark had an inflammatory effect on the jury. The trial judge overruled the motion.

The unresponsive answer by the witness is not ground for reversal unless the answer placed the defendants in grave peril. Johnson v. State (1977), Ind., 359 N.E.2d 525, 529; Lewis v. State (1976), 264 Ind. 288, 342 N.E.2d 859, 863-64; Whitten v. State (1975), 263 Ind. 407, 333 N.E.2d 86, 90; White v. State (1971), 257 Ind. 64, 272 N.E.2d 312, 320. Whether or not grave peril exists depends on all the circumstances of the case. The decision of the trial court will not be disturbed except for clear error. Johnson v. State, supra.

In the case at hand we have carefully reviewed the proceedings at trial and we conclude that the trial court did not err by refusing to grant a mistrial. The remark by Mrs. Caudill, while unfortunate, was not so prejudicial as to place the defendants in "grave peril." The remark was an isolated and unexpected response of a layperson. There is no indication in the record that the prosecutor deliberately sought to elicit the response. After being warned by the judge to limit her answers to the questions, the examination continued without further interjections by Mrs. Caudill. Under these circumstances we are inclined to defer to the discretion of the trial judge. Accordingly, we hold that he did not err by refusing to grant a mistrial.

The second error raised by defendants concerns a conversation which allegedly took place in the office of the county clerk, located in the courthouse. This conversation apparently occurred shortly before the trial convened. A local attorney, who was present in the clerk's office, testified ³ that two jurors were also present and were drinking coffee. According to the attorney, one of the jurors observed that every attorney in town must be present in the clerk's office. The attorney also recalled that some unspecified person stated that York and Havens were being tried again. The attorney, however, could not say for certain whether the two jurors were present when the latter comment was made.

The defendants claim that this interchange in the clerk's office entitled them to a mistrial. The gist of their contention is that the two jurors were indirectly informed that York and Havens had prior criminal records. In response to this contention the trial judge observed that the defendants' counsel, himself, had indicated to the jury that the defendants had criminal records. Thus, stated the judge, the two jurors (if indeed they were even present in the clerk's office) were informed of nothing more than what the defendants' counsel himself later revealed to the jury. This statement of the trial judge passed unchallenged by the defendants' attorney. ⁴

Furthermore, we believe that the defendants are not entitled to reversal for this second assigned error unless they can show prejudice, or can establish facts upon which prejudice may be presumed. We reach this conclusion by borrowing from the reasoning of the following case law precedent dealing with the related question of alleged juror misconduct. See Oldham v. State (1967), 249 Ind. 301, 231 N.E.2d 791, 793; Myers v. State (1960), 240 Ind. 641, 168 N.E.2d 220, 223; Barker v. State (1958), 238 Ind. 271, 150 N.E.2d 680, 683; Trombley v. State (1906), 167 Ind. 231, 78 N.E. 976, 977. Given the circumstances of this case, we fail to find any prejudice, nor do we believe that prejudice may be presumed. The fact that it is questionable whether the two jurors were even in the clerk's office all the more fortifies our conclusion that the defendants suffered no prejudice. For these reasons the judge did not err by refusing to grant a mistrial.

The third error raised by the defendants is an alleged violation of the public trial provision of Art. I, Sec. 13 of the Indiana Constitution, and of the Sixth Amendment to the United States Constitution. ⁵ The defendants claim this error arose when two local attorneys, who chanced to stop by the courtroom during voir dire, ⁶ were denied admittance. This exclusion apparently resulted from a misunderstanding between the trial judge and the sheriff's department. The judge had ordered that spectators be searched. The department, however, was under the impression that spectators (or at least the two attorneys) were to be excluded. ⁷

Assuming that this incident did in fact take place, we believe that it did not rise to the level of a constitutional violation. In support of this conclusion we borrow from the language of Snyder v. Coiner (1975), 4th Cir., 510 F.2d 224, wherein the Court stated:

"The other contention is that the defendant was denied a public trial, since, for a time during arguments of counsel before the jury a bailiff refused to allow persons to enter or leave the courtroom. Such condition existed for but a short time and was quickly changed by the Court, when advised of the action of the bailiff. The bailiff, in acting as he did, merely sought to prevent any disturbance during the arguments. There were no restrictions placed on the defendant, his counsel, family or witnesses or even spectators then in the courtroom. The incident was entirely too trivial to amount to a constitutional deprivation."

510 F.2d at 230.

In reaching the conclusion that the defendants' constitutional rights were not violated in this instance, we do not mean to imply that a trial court is always at liberty to exclude members of the public. Rather, we limit our conclusion to the facts of this particular case where the exclusion was inadvertent and where there is no indication in the record that anyone other than these two attorneys were excluded from the proceedings.

The fourth error raised by defendants concerns the admission of Exhibit H by the prosecution. This exhibit was a certified copy of a certificate of registration of the Bureau of Motor Vehicles. The apparent purpose of the exhibit was to show that at the time of the break-in, the van was bearing a license plate which had been issued to a different vehicle. The defendants claimed the exhibit was immaterial. ⁸

Contrary to the defendants' contention, the exhibit was material. Generally speaking, evidence which tends to show that the defendants undertook preparation for the crime is admissible. 22A C.J.S. Criminal Law § 606 (1961). Specifically, it...