Attorneys for Appellee
Attorney General of Indiana
Nandita G. Shepherd
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
As the group left the party they split up into separate groups.
Defendant said he was going to the hood to get his [gun].
(R. at 929.) One of Defendants friends, Terrence Manley, said, I aint
go to do nothing but go down the street. (R. at 929.)
Another member of the group, Tyrone Mason, took Louis Abrams to get
The group met up again in the parking lot of a store near
the Kappa house. Defendant, Michael Bruno, Abrams, and Manley had guns.
The group parked their cars on a dark residential street so as not
to be seen. They walked toward the back of the Kappa house.
At some point, someone said, lets do this shit, and Defendant, Manley,
Bruno, and Abrams began shooting into the house. Four people were shot.
One victim, Julian Brown, died and three other women were injured.
The State charged Defendant with three counts of criminal recklessness resulting in serious
bodily injury, a class C felony,
See footnote Conspiracy to Commit Murder, a class A
felony,See footnote and Murder.See footnote The jury found Defendant guilty on all counts.
The trial court sentenced D
efendant to consecutive sentences of eight years for each
criminal recklessness count and sixty years for the murder. The court imposed
the sentence for conspiracy to commit murder concurrent to the other counts for
a total sentence of 84 years of incarceration.
(R. at 1709-1710.)
After the jury had retired for deliberation, the jury sent the trial court
judge a note that read: The Jury would like to have access
to the precedents of Indiana Law which was read in court regarding a
case in the Supreme Court Re: a person knowingly shooting into a house
with 15 or so people in it. (R. at 196.) Over
Defendants objection, the judge called the jury to the courtroom and re-read the
portion of Jones that had been previously read to the jury by the
prosecutor during closing argument:
This is a Supreme Court case, the name of the case is Jones
v. State of Indiana, it is December 17, 1997, decided by the Supreme
Court of Indiana, Chief Justice Shepard writing it for the Court. To
convict Jones of murder, the prosecution must prove, and the jury must find
that the defendant knowingly or intentionally killed another human being. ... When
the victims fatal injuries are inflicted by a deadly weapon, the trier of
fact may infer intent to kill from the intentional use of that weapon
in a manner likely to cause death or serious bodily injury. ...
Here the evidence indicates that Jones fired at least four shots in
rapid succession from a nine millimeter handgun into the open door of a
home in which fifteen to twenty people were socializing. It was clearly
reasonable for the jury to conclude that Jones used the handgun, undoubtedly a
deadly weapon, in a manner likely to cause death or serious injury, and
thus that he acted with the requisite intent. Additional proof of intent
is not required. That concludes the portion, ladies and gentlemen.
(R. at 1745-1746.)
Indiana Code § 34-36-1-6 See footnote addresses how a trial court is to proceed when the jury requests information during its deliberation:
If, after the jury retires for deliberation; (1) there is a disagreement among the jurors as to any part of the testimony; or (2) the jury desires to be informed as to any point of law arising in the case; the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.
[T]his statutory provision does not mandate that the trial court provide information automatically and mechanically every time the jury requests it ... . Foster v. State, 698 N.E.2d 1166, 1170 (Ind. 1998). Rather, it entrusts to the trial court the discretion to determine whether the jurys inquiry reflects that (1) there is a disagreement among the jurors as to any part of the testimony; or (2) the jury desires to be informed as to any point of law arising in the case. Ind. Code § 34-36-1-6; Foster, at 1170. If the trial court determines that a question falls into one of these two categories, then the trial court must supply the requested information, to the extent that it consists of properly admitted testimony or documentary evidence. Id. at 1170 (citing Johnson v. State, 518 N.E.2d 1073, 1078 (Ind. 1988)).
Here, the jury requested that the trial court re-read the portion of the prosecutions closing argument that referred to Johnson. Neither party contends that this inquiry reflected any disagreement within the jury. On the other hand, at first blush it appears, and the trial court found, that the jurys question involved a point of law. But it was not a point of law within the meaning of the statute and the trial court abused its discretion by responding to the jurys inquiry in the way that it did.
There are many points of law on which it is simply inappropriate for a trial court to instruct a jury. See Hernandez v. State, 761 N.E.2d 845, 848 (Ind. 2002) (citing examples). And we have regularly held that the mere fact that language has been used in an appellate opinion does not make it appropriate for a jury instruction. See Dunlop v. State, 724 N.E.2d 592, 595 (Ind. 2000) (citing cases). While the prosecutors argument here was of his view of what the law in this situation was, it was still argument. Cf. Saylor v. State, 765 N.E.2d 535, 551 n. 7 (Ind. 2002) (arguments of counsel are not evidence), petition for rehearing pending; Poirier v. A.P. Green Servs., Inc., 754 N.E.2d 1007, 1011 (Ind. App. 2001) (same). What the trial court did was to read to the jury not the law but one of the parties arguments. See footnote This was error.
Historically, this Court took the position that once jury deliberations commence, the trial
court should not give any additional instructions.
Bailey v. State, 669 N.E.2d
972, 975-76 (Ind. 1996); Lewis v. State, 424 N.E.2d 107, 111 (1981).
We have recently changed our rules in this regard, allowing trial courts to
facilitate and assist jurors in the deliberative process
in order to avoid
mistrials. Ind. Jury Rule 28 (eff. January 1, 2003); Tincher v. Davidson,
762 N.E.2d 1221, 1224 (Ind. 2002). But for the court itself to
read from one partys closing argument in response to a jury inquiry goes
well beyond the latitude granted by Jury Rule 28 and Tincher v. Davidson.
We will not overturn a defendant's conviction if a trial courts error was harmless. Ind. Trial Rule 61. Harmless error is defined as an error that does not "affect the substantial rights of a party." Fleener v. State, 656 N.E.2d 1140, 1141 (Ind.1995). Though the trial courts communication to the jury was error, we find it harmless under the circumstances of this case. Any prejudice Defendant suffered was due to the reading from Johnson, which the jury had already heard once (without objection from Defendant). The fact that this information was cumulative of information already received diminishes its prejudicial effect.
In addition, there was overwhelming evidence of Defendants guilt. The evidence showed
that when Defendant and his friends were turned away at the party he
stated, well be back and you better have the police here. (R.
Mason also testified that Defendant stated that he was going in the hood
to get his [gun]. (R .at 929.) In addition, Mason, Jerriel
Williams, and Abrams testified that they, along with Defendant, returned to the Kappa
house. Williams and Abrams testified that D
efendant said Whats up or Whats
up dawg to a person standing at the back door of the Kappa
house. When the person at the back door closed the door, someone
said, Lets do this. Moments later, shots were fired into the house.
Williams and Abrams testified that they knew they were about to shoot
into a house that was full of people. Williams testified that just
before he heard gunshots, he saw Defendant reach for something in his pants.
Mason testified that a few minutes after the shooting, Abrams told him
that Defendant was shooting a Tech 9.
Another witness, DeJuan McPhal, testified that Danny Hoskins told him that Defe
a tech. McPhal further testified that Defendant, Mike Booty, Manley and Abrams
were all shooting into the house. In his testimony, McPhal described Defendants
gun as being like an uzi. Mason testified that Defendant later told
him that they got rid of the guns.
We conclude that the fact that the jury had previously heard the language
Johnson opinion in combination with the overwhelming evidence of Defendants guilt
renders the trial courts error harmless.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur.
DICKSON, J., concurs in result.