ATTORNEY FOR APPELLANT        ATTORNEYS FOR APPELLEE

Stanley L. Campbell            Karen M. Freeman-Wilson
Fort Wayne, Indiana            Attorney General of Indiana

                        Randi E. Froug
                        Deputy Attorney General
                        Indianapolis, Indiana

DEATRON LEE                    )
                            )
    Appellant (Defendant Below),    )
                            )
    v.                        ) No. 02S00-9905-CR-286                             )     
STATE OF INDIANA,                )
                            )
    Appellee (Plaintiff Below).    )

SHEPARD, Chief Justice.

The claim here is that a juror’s brother attended a very large party at which a killing occurred. We review the law on juror bias and conclude the trial court correctly denied a request for a new trial.

As the evening progressed, some partygoers began throwing beer, and others attempted to eject them. A fight broke out, and Bates protested that Jason Wallace had “sucker punched” another partygoer with a blow to the back of the head. (R. at 450.) Wallace overheard Bates describing this act as “weak,” and Wallace and Bates began fighting. (R. at 450-52.) Bates, during a pause in the action, handed his gun to Lee to hold while Bates was brawling.

Several others joined in the fight on Wallace’s behalf. Lee also became engaged in the scuffle. Lee and Bates were outnumbered, and Lee brandished Bates’ gun, ordering everyone to “hold up” and/or “chill out” and declared, “I ain’t playing.” (R. at 457, 535.) As Lee made this statement, Wallace was standing close by Bates and Lee, facing the duo. Lee then shot Wallace in the chest. After Wallace fell, Bates kicked him. Wallace died a few days later from the gunshot wound.

Lee and Bates fled. When police officers questioned Lee three or four hours after the shooting, Lee claimed that he left the party before the shooting occurred.

A jury found Lee guilty of murder. See footnote The trial court sentenced him to fifty-five years in prison.

After entry of the jury verdict and sentencing, Lee’s counsel filed a motion to correct error. At a hearing on the motion, Lee’s counsel unsuccessfully sought a new trial based on juror bias.

During voir dire, the court asked whether any of the prospective jurors knew any of the anticipated witnesses, or whether any jurors remembered reading or hearing anything about the case. One of the potential witnesses the court named was Ben Kimmel, who would later testify that he saw Lee shoot Wallace. Several jurors spoke up about various potential witnesses, but Thomas “Zack” Mathis did not respond at that time to either question. The court empaneled a jury, including Mathis, and both parties presented opening arguments.

The next morning, however, Mathis notified the court via the bailiff that he was acquainted with Kimmel. The court promptly held a hearing at which counsel for both parties queried Mathis about the nature of his knowledge.

Mathis indicated that he had not initially recognized Kimmel’s name because Kimmel was a casual acquaintance from school whom Mathis knew by first name only. During opening arguments, Mathis had realized that Kimmel might be someone he knew, and confirmed his suspicion later that evening by looking at a high school yearbook. Based upon Mathis’ assertion that this acquaintance would not affect his assessment of Kimmel’s credibility, neither counsel objected to Mathis’ continuation as a juror.

At the hearing on the motion to correct error, Lee’s counsel called Kimmel as a witness. Kimmel said he knew both juror Zack Mathis and one Ben Mathis from school. He testified that Ben Mathis (but not Zack) had been at the party where the shooting occurred. Kimmel presumed that Ben and Zack were brothers because they shared the same last name.See footnote Kimmel did not know when Ben Mathis had arrived at the party, when he left, or whether he was at the party at the time of the shooting.

Lee’s only other witness at the hearing was his trial attorney, who stated that he would have requested Zack Mathis be removed from the jury had this information come to light earlier. Lee’s counsel did not subpoena either Zack or Ben Mathis to testify at the hearing; instead, she argued implied bias based on relationship. (R. at 995.) The court denied Lee’s motion based on lack of evidence that juror Mathis possessed any special knowledge.

We have come a long way from the time of the Magna Carta, when criminal jurors were usually knights who often served on the accusing jury as well as the trial jury. See Lloyd E. Moore, The Jury: Tool of Kings, Palladium of Liberty 56 (1973). Today’s jury practices strive to honor the true spirit of the concept of an impartial jury of one’s peers. As Samuel Spencer of North Carolina said in 1788, “Juries are called the bulwarks of our rights and liberties; and no country can ever be enslaved as long as those cases which affect their lives and property are to be decided, in great measure, by the consent of 12 honest, disinterested men.” See footnote J. Kendall Few, The American Jury Trial Foundation, In Defense of Trial By Jury 242 (1993).

As recognized in Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988), a defendant who proves that a juror lied on voir dire or was biased against the defendant is entitled to a new trial, upon demonstrating both gross misconduct and probable harm. Determinations of juror misconduct fall within the trial court’s discretionary authority. Id.

Here, Lee has not shown that juror Mathis lied during voir dire. In fact, when Mathis realized after opening arguments that he was casually acquainted with a witness, he promptly notified the court. Mathis was sufficiently forthcoming during questioning that neither party requested his removal. Thus, if Lee has a sustainable claim, it must rest upon a showing of bias.

One way that a litigant may prove bias is by presenting evidence of an out-of-court communication by a juror. Timm v. State, 644 N.E.2d 1235, 1237 (Ind. 1994). Such a communication raises a rebuttable presumption of bias in order to protect the essential safeguard of jury neutrality. Id. Again, however, Lee has offered no proof that any out-of-court communication actually took place.

Lee’s argument of bias therefore rests entirely on Mathis’ fraternal relationship to someone who was at the party. The mere existence of this relationship, he asserts, implies bias and therefore justifies reversal. (Appellant’s Br. at 11-12.)

Lee is correct that a juror’s bias may arise by inference when the juror has some connection to the case. Threats v. State, 582 N.E.2d 396, 398 (Ind. Ct. App. 1991). A trial court should analyze such potential bias by considering the nature of the connection, and any indications of partiality. Id. The trial court “must weigh the nature and extent of the relationship versus the ability of the juror to remain impartial.” McCants v. State, 686 N.E.2d 1281, 1284-85 (Ind. 1997) (citing Threats, 582 N.E.2d at 398).

Here, any connection by juror Mathis to the case is purely speculative. Lee seeks a new trial because Mathis’ brother, who was not called as a witness, may have been at the party when the shooting occurred and the two may have discussed the shooting. (Appellant’s Br. at 11-12.) When Lee’s counsel was asked at the hearing on the motion to correct error why she had not subpoenaed the brother to testify, she replied that she did not want to put a witness on the stand if she did not know what he was going to say. (R. at 995.) Conjecture of this sort falls far short of a prima facie case of bias, much less the requisite showing of gross misconduct and probable harm required for reversal.

The trial court properly denied Lee’s motion for a new trial.

In a roughly similar vein, Lee points to the testimony of Nick Fuller. Fuller stated during his deposition that the same person who shot Wallace also kicked Wallace. He expressed uncertainty at the trial.

Inconsistencies in identification testimony go to the weight of that testimony; it is the jury’s task to determine the credibility of the various witnesses and of the evidence presented. See Parsley v. State, 557 N.E.2d 1331, 1335 (Ind. 1990). This Court looks to the evidence most favorable to the verdict along with the reasonable inferences drawn therefrom that support the jury’s verdict. Blackmon v. State, 455 N.E.2d 586, 590 (Ind. 1983).

Here, the State presented testimony by several eyewitnesses. Ben Kimmel, who had known Lee for at least six months prior to the party, saw the shooting and unequivocally identified Lee as the killer. Lee’s long-time friend Allen Bates testified that he saw Lee pull the gun, looked away, heard a gunshot fired from the area where Lee was standing, looked back, and saw Lee still holding the gun. Both Mike Quintanilla and Nick Fuller were briefly introduced to Lee at the party, and later saw Lee shoot Wallace.

Without pausing to mention the details of testimony given by others who attended the party, we count at least seven different witnesses who either specifically identified Lee as the shooter, or gave descriptions that matched Lee’s appearance in most respects. This evidence goes well beyond the requisite minimum of probative evidence from which a reasonable trier of fact could infer guilt beyond a reasonable doubt.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.