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ATTORNEYS FOR APPELLANT|
Robert W. Hammerle
Joseph M. Cleary
ATTORNEYS FOR APPELLEE|
Jeffrey A. Modisett
Attorney General of Indiana
Rosemary L. Borek
Deputy Attorney General
SUPREME COURT OF INDIANA
FRANK ROBINSON, )
Appellant (Defendant Below ), )
v. ) Supreme Court
) Cause No. 49S00-9706-CR-387
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Ruth Reichard, Judge
Cause No. 49G02-9512-CF-193884
ON DIRECT APPEAL
October 2, 1998
A jury found Frank Robinson guilty of murder. In this direct appeal he challenges (1)
the sufficiency of evidence and (2) the decision of the trial court to send certain exhibits into
the jury room after deliberations had begun. We affirm.Factual and Procedural Background
Frank Robinson and William Hill were both members of the 25th Street Mens Club
in Indianapolis. The Club was a renovated house that contained some tables, a vending
machine, a TV, and a back room used principally for gambling among the members. Hill
was shot in the face at the Club on the evening of December 15, 1995 and died five days
later. At trial, there were some variations in the witnesses' accounts of the killing. James
Dunlop testified that he was gambling in the back room with Hill and Robinson. According
to Dunlop, Robinson became upset over his losses, left the club, and returned a few minutes
later in a fit of rage, waiving a pistol with the hammer back cocked . . . . Dunlop testified
that he heard Robinson say I told you I was going to kill one of you mf's, and that
Robinson shot Hill in the face after arguing with him for about two minutes.
Landis Secrest was also in the back room of the Club with Hill and Robinson, but he
did not see any gambling. He testified that Robinson had been drinking on the evening of
the killing and was a little unruly, but did not appear to be angry when he left the Club.
Secrest said Robinson returned fifteen to twenty minutes later. Secrest saw Robinson hold
a cocked gun to Hill's head. Secrest then turned his attention to helping some of the older
people away from the scene. Upon his return he heard, but did not see, the shooting.
Robinson also testified at trial. He denied either drinking alcohol or gambling on the
night of the killing. He testified that he went to the club to hang some Christmas
decorations. He carried a gun for personal protection and put it in the pocket of his jacket
because he feared it would be stolen if he left it with his tools. He testified that he
encountered Hill who without provocation picked him up and dropped him. As he fell,
Robinson had his hand in his pocket holding the gun. According to Robinson, his finger
automatically dropped to the trigger. The gun discharged when Robinson hit some lockers
against the wall. Robinson testified that he then left the club, unaware that he had shot Hill.
About two weeks after the shooting, Robinson surrendered to the police and, through his
counsel, turned over the gun and jacket he was wearing on the night of the killing. A firearm
examiner testified that a hole in Robinson's jacket was possibly caused by the firing of a
bullet but he could not conclusively determine its source.See footnote 1
He also found traces of smoke
powder inside the pocket of the jacket, which he testified was consistent with Robinson's
version but also could have come from the hands of someone who handled a gun or
About an hour after beginning its deliberations, the jury sent out a note requesting to
see some photographs that were admitted into evidence. The requested photographs were
sent to the jury room, over Robinson's objection. A short while later, the jury found
Robinson guilty of murder. Robinson filed a motion to set aside the verdict alleging the trial
court had erred in sending exhibits to the jury room. The motion was denied prior to
sentencing, and Robinson was sentenced to the maximum term of sixty-five years
imprisonment. I. Sufficiency of the Evidence
Robinson challenges the sufficiency of the evidence supporting his conviction and
asks that we enter judgment of conviction for reckless homicide in its stead. Our standard
of review for sufficiency cases is well-settled. We consider only the evidence that supports
the verdict and draw all reasonable inferences from that evidence. Bryant v. State, 644
N.E.2d 859, 860 (Ind. 1994). We do not reweigh the evidence or judge the credibility of
witnesses. Id. We will uphold a conviction if there is substantial evidence of probative value
from which a jury could have found the defendant guilty beyond a reasonable doubt. Garrett
v. State, 602 N.E.2d 139, 142 (Ind. 1993).
Two State's witnesses were present at the Club on the night of the killing and
provided testimony that supports the verdict. James Dunlop testified that Robinson was
upset over losing money and, after returning to the Club, pointed a gun at both Dunlop and
Hill and then shot Hill in the face. In addition to the eyewitness testimony of Dunlop, the
State submitted the generally corroborative testimony of Landis Secrest who saw Robinson
hold a cocked gun to Hill's head, but did not witness the actual shooting. Robinson would
prefer that we believe his version of the incident and attach greater significance to the
supportive but inconclusive testimony of the firearms examiner; however, this is not our
province. The jury was in the best position to assess the credibility of witnesses and could
assign little -- or no -- weight to Robinson's version. It is the jury's exclusive prerogative
to weigh conflicting evidence. Id. Sufficient evidence supports the jury's conclusion that
Robinson knowingly killed William Hill. II. Jury Deliberations
Robinson also contends that the trial court erred in sending photographs to the jury
room after deliberations had begun. The trial court initially indicated that it would not send
exhibits with the jury.See footnote 2
However, after deliberating for about an hour, the jury sent out a
note requesting Pictures of the back room & Hall Inside of House. The trial court allowed
both the State and defense counsel to review the note and offer their suggestions in open
court with the defendant present. The parties agreed which exhibits were pictures of the
back room and hall. Over the Robinson's objection, the trial court then sent those
photographs to the jury room.
A. Inapplicability of the Statute
The procedure for allowing jurors to review evidence and testimony during
deliberations is governed by both statute and case law. The relevant statute provides:
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.
Ind. Code § 34-36-1-6 (1998).See footnote 3
Although the statute refers to disagreements as to
testimony, it has been construed by this Court in Powell v. State, 644 N.E.2d 855 (Ind.
1994), to apply to audio tapes that are technically exhibits, as well as to requests dealing with
witnesses' trial testimony. There is a division in the Court of Appeals on the issue whether
the statute applies to requests relating to all forms of evidence. Compare Anglin v. State, 680
N.E.2d 883 (statute held to apply to request to review documentary exhibits) with Riggs v.
State, 689 N.E.2d 460, 462 (Ind. Ct. App. 1997) (requests to review exhibits, which are
items of physical evidence, are never within the scope of the statute). Arguably a tape of
an interview or event is sufficiently similar to testimony to require the same treatment even
if not all evidence necessitates the presence of the parties to assure that it is not excessively
or selectively used. Whatever the resolution of these issues, we recently held that the statute
applies only to cases in which the jury explicitly indicated a disagreement. Bouye v. State,
1998 WL 409025, at *6, ___ N.E.2d ___, ___ (Ind. 1998).See footnote 4
Because the note in the instant
case merely indicates what items the jury wanted to see and does not suggest any type of
disagreement, under Bouye the statutory provision does not apply. Powell, to the extent it
can be read to suggest or assume that the statute is triggered by any request after
deliberations begin, has been clarified by Bouye on that issue.
B. The Standard Under Case Law
If the statute is not triggered, jury requests are evaluated under the guidelines
established by our case law. In Thomas v. State, 259 Ind. 537, 540, 289 N.E.2d 508, 509
(1987), we adopted § 5.1 of the Standards Relating to Trial by Jury (American Bar
Association Project on Standards for Criminal Justice), which now appears with insubstantial
changes as Standard 15-4.1 in 3 American Bar Association, Standards for Criminal
Justice (2d ed. 1980). The version adopted in Thomas provided:
Materials to jury room.
(a) The court in its discretion may permit the jury, upon retiring for deliberation, to
take to the jury room a copy of the charges against the defendant and exhibits and
writings which have been received in evidence, except depositions.
(b) Among the considerations which are appropriate in the exercise of this discretion
(i) whether the material will aid the jury in a proper consideration of the case;
(ii) whether any party will be unduly prejudiced by submission of the material; and
(iii) whether the material may be subjected to improper use by the jury.
Thomas, 259 Ind. at 540, 289 N.E.2d at 509.
Robinson asserts that these factors apply only to a trial court's decision whether to
send exhibits to the jury room when deliberations begin, and not to cases in which the jury
request is made during deliberations. Thomas, which originally adopted the ABA Standard,
was a case in which exhibits were sent to the jury room at the commencement of
deliberations. However, Thomas did not purport to limit itself to exhibits sent to the jury
room at the commencement of deliberations, and if the statute is not implicated, the same
considerations apply to a request made after deliberations have begun. The ABA rule was
adopted to guide judges in deciding which materials should be permitted in the jury room
during deliberations. Id. at 541, 289 N.E.2d at 510. Moreover, many of our post-Thomas
decisions have applied ABA Standard 15-4.1 to jury requests made after deliberations had
begun. See, e.g., Ingram v. State, 547 N.E.2d 823, 828-29 (Ind. 1989); Roland v. State, 501
N.E.2d 1034, 1040 (Ind. 1986); Torres v. State, 442 N.E.2d 1021, 1025-26 (Ind. 1982);
Pearson v. State, 441 N.E.2d 468, 476 (Ind. 1982); see also Mitchell v. State, 535 N.E.2d
498, 500-01 (Ind. 1989) (finding no abuse of discretion in sending exhibits to the jury room
during deliberations after the jury twice indicated it was deadlocked, but never made a
request to review exhibits).See footnote 5
In deciding whether to send the requested photographs to the jury room in this case,
the trial court stated:
there's a three (3) prong test whether the material will aid the jury in a proper
consideration. I think it will, I mean, none of them have ever been in this house so,
they're entitled to a second look. Whether any party will be unduly prejudiced by the
submission of the material -- well, I can't even think of prejudice let alone undue
prejudice; and, [three], whether the material may be subjected to improper use by the
jury -- the photos I don't think could be improperly used.
Robinson does not allege that the trial court improperly applied these factors to the facts of
his case. In fact, he did not even discuss these factors in his post-trial motion to set aside the
jury verdict, nor does he allude to their application to the facts of his case in this appeal. We
find no error in the trial court's decision to send the photographs to the jury room.
C. The Right to be Present
Robinson also asserts that, even in the absence of the statutory provision, the trial
court was required to bring the jurors into open court to view the photographs. His assertion
is grounded in the federal and state constitutional rights to be present during trial. See U.S.
Const. amend. 6; Ind. Const. art. I, § 13. Although Robinson cites these two constitutional
provisions, he provides no authority for the proposition that there is a constitutional right to
be present during jury deliberations that may include viewing of exhibits, or that it is a
violation of either the state or federal constitution to permit the viewing of exhibits in the
jury room as opposed to in open court. The Sixth Amendment right of the accused to be
present in the courtroom at every stage of his trial is rooted in the Confrontation Clause.
Ridley v. State, 690 N.E.2d 177, 180 (Ind. 1997) (quoting Illinois v. Allen, 397 U.S. 337,
338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)). This right extends to situations related to the
presentation of witnesses or evidence, during which the right of cross examination is
implicated. Id. Allowing jurors to view photographs or other exhibits during their
deliberations does not deny Robinson an opportunity to confront or cross examine. We find
no Sixth Amendment violation.
Robinson also claims a violation of Article I, § 13 of the Indiana Constitution, which
protects a defendant's right to be present in the courtroom at every stage of the proceedings
that requires the presence of the jury. Cape v. State, 272 Ind. 609, 611, 400 N.E.2d 161, 163
(1980).See footnote 6
There is no statutory or constitutional requirement that the jury be returned to the
courtroom for the viewing of photographs.See footnote 7
Accordingly, Robinson's state constitutional
right to be present at all stages requiring the presence of the jury was not implicated. Conclusion
We affirm the conviction.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
1 The possibility that the gun was fired through the pocket of the jacket after the night of the killing
but prior to Robinson's surrender was at least alluded to by the State's questioning of Robinson and the
firearms examiner. Although Robinson testified that he bought the gun new and had never fired the it before
he shot Hill, the firearms examiner testified that two of the gun's cylinders had been previously fired.
2 The trial court's concern focused on the gun and jacket -- not the photographs. Based on the jury's
demeanor during the course of the trial, the trial court thought that the jurors
seemed extremely curious when we passed them the gun and the jacket about -- it's kind of their own
theory. It's almost like the assasination [sic] of President Kennedy, I mean, I could just see the
wheels turning in their heads about, you know, angle and how was it in the pocket which is why we
finally had the detective do a little bit of a demonstration about the gun fitting in the pocket, but I am
just concerned that they're going to focus on that to the point of distraction and give more weight to
those two (2) physical pieces of evidence than to the testimony of the alleged eyewitnesses and the
other exhibits -- the other tangible exhibits and photographs and I think -- I'm just concerned that it's
going to distract them from the legal issues.
3 This section was formerly codified at Indiana Code § 34-1-21-6 (1993). Although the recodified
version incorporates minor editorial changes, the two versions are substantively the same.
4 Prior to Bouye, the Court of Appeals was also divided as to the type of disagreement necessary to
trigger the statute. E.g., compare Riggs v. State, 689 N.E.2d 460, 463 (Ind. Ct. App. 1997) (requiring
explicit disagreement) with State v. Winters, 678 N.E.2d 405, 409 (Ind. Ct. App. 1997) (juries may manifest
disagreement about testimony by requesting to rehear it).
5 These cases implicitly rejected ABA Standard 15-4.2, which applies to requests for testimony or
other evidence after deliberations have begun and requires that the jury be returned to the courtroom. 3
American Bar Association, Standards for Criminal Justice (2d ed. 1980).
6 Although stating this general constitutional proposition, Cape itself focused on the fact that neither
the defendant nor defense counsel was present -- nor had either been given notice -- when the trial court
replayed certain portions of trial testimony requested by the jury. Indiana Code § 34-1-21-6 specifically
required the replaying of testimony only in the presence of, or after notice to, the parties or their attorneys.
7 Although not controlling on an issue of Indiana constitutional law, Rule 533 of the National
Conference of Commissioners on Uniform State Laws, Uniform Rules of Criminal Procedure
(1974) explicitly observes that the jury may be recalled to view exhibits or, if no prejudice or misuse is
involved, may review them in the jury room
In our view, the existence of Rule 533 demonstrates that this
practice presents no issue of fundamental unfairness.
Converted by Andrew Scriven