ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID T. PAGE STEVE CARTER
Baker, Pittman, & Page Attorney General of Indiana
CHRISTOPHER C.T. STEPHEN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
KENNETH E. DIXON, )
vs. ) No. 73A04-0109-CR-409
STATE OF INDIANA, )
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Russell J. Sanders, Judge
Cause No. 73D02-0011-DF-116
June 12, 2002
OPINION - FOR PUBLICATION
Kenneth Dixon appeals his convictions for Operating a Vehicle While Intoxicated and Criminal
Recklessness With a Vehicle, both Class A misdemeanors. We affirm.
The sole issue for our review is whether Dixon was deprived of a
fair trial because of ex parte communications between the jury foreman and the
The facts most favorable to the judgment show that on November 28, 2000,
the State charged Dixon with Operating a Vehicle While Intoxicated, Operation of a
Vehicle with .10 or More Alcohol in a Persons Body, and Criminal Recklessness
With a Vehicle, all Class A misdemeanors, and Operation of a Vehicle while
Intoxicated with a Prior Conviction, a Class D felony. In June 2001,
the trial court conducted a bifurcated jury trial on the charges.
The jury found Dixon guilty of two of the charges. Dixon polled
the jury, and each juror acknowledged that they found him guilty. Dixon
then notified the trial court that he wished to enter into a plea
as to the enhanced charge of Operating a Vehicle While Intoxicated With a
Prior Conviction instead of proceeding with a jury trial on that charge.
The trial court dismissed the jury before conducting the guilty plea hearing.
Dixon alleges that there was improper ex parte communication between the jury foreman
and the bailiff that deprived him of his right to a fair trial.
When an improper communication takes place between the bailiff and the jury,
there [is] a presumption of harm to the defendant that the State must
rebut to avoid reversal. Baxter v. State, 727 N.E.2d 429, 434-35 (Ind.
2000) (quoting Alexander v. State, 449 N.E.2d 1068, 1074 (Ind. 1983)). Reversal
may be avoided only if no harm or prejudice to the defendant results.
Id. (citing Randall v. State, 474 N.E.2d 76, 79 (Ind. 1985) (When
an irregularity such as this . . . occurs harm will be presumed,
and if the irregularity is not explained, a reversal of the judgment should
follow. However, if an explanation for the alleged misconduct is offered, and
if this Court is satisfied that no harm or prejudice resulted, then the
judgment of the trial court will not be disturbed.) (citations omitted)). When
the trial court has addressed the issue of improper communications, we do not
reweigh its determinations as to the credibility of the witnesses. Id.
Because this is a factual determination, it is subject to a clearly erroneous
standard of review. Id.
Following the verdict, Dixon polled the jury, and each juror acknowledged that they
had found him guilty. Dixon then pleaded guilty to the second phase
of the trial, and the trial court dismissed the jury. Following a
recess, the trial judge returned and stated that it had been brought to
his attention that some remarks had been made between the jury and the
bailiff. The trial court then called the bailiff and a security guard
to testify as to what had occurred.
The bailiff testified that the jury foreman came to the door and told
her that they were finished deliberating. The foreman asked the bailiff where
to put the jury verdict forms. The bailiff told the foreman to
put the final verdict form in the envelope and that she would inform
the judge. The foreman mentioned specific numbers of guilty and not guilty
votes, to which the bailiff responded that the foreman should only put the
final verdict form in the envelope. A security guard who overheard the
interaction also testified that the foreman said they were finished, asked where to
put the verdict form, and mentioned specific votes. The foreman then closed
the door, and the bailiff returned to reiterate that only the final verdict
was to be placed in the envelope.
Dixon cross-examined both the bailiff and the security guard. After the testimony,
he moved to have the verdict set aside. He argued that there
was a question regarding whether the bailiff became confused as to whether the
jury was split between guilty and not guilty votes, or if the foreman
was unsure as to what to do with the jurys verdict forms.
Appellants Br. p. 5. He also claimed that the remark by the
foreman may have indicated the jurys verdict was not unanimous. The trial
court denied the motion, citing four reasons for finding no misconduct: 1) the
comments were innocent and not related to the verdict; 2) the instructions on
reaching a unanimous verdict were clear; 3) the trial court found that the
verdict forms showed no indication of problems; and 4) Dixon had polled the
We conclude that the findings of the trial court are supported by the
evidence. The discourse between the foreman and the bailiff did not involve
the facts of the case or any legal discussion, but was rather procedural
in nature as to where the verdict form should be placed. The
foreman announced that the jury was finished with deliberations before the bailiff provided
instructions as to what should be done with the verdict form. Dixon
polled the jury, and there is no evidence that the final verdict was
anything other than unanimous. The fact that there were possibly some not
guilty votes at some point in the jurys deliberations does not require reversal.
The instructions were clear regarding the requirement that the final verdict be
unanimous. We fail to see how the bailiffs brief interaction with the
foreman prejudiced Dixon. See Farris v. State, 732 N.E.2d 230, 236 (Ind.
Ct. App. 2000) (finding no prejudice where the bailiffs response to the jury
was similar to instructions the court would have provided and where the bailiff
did not talk about the facts of the case, further instruct the jury,
or discuss substantive legal matters with the jury); Azania v. State, 730 N.E.2d
646 (Ind. Ct. App. 2000) (finding no harm because the ex parte communication
occurred after the jury had completed deliberations).
Although we find no prejudice here, we are mindful of the disfavor this
court has shown toward discussions between bailiffs and juries. We have cautioned:
While we find that the error in this case was harmless, we do
not mean to say that communication between a bailiff and the jury is
appropriate. On the contrary, it is important that trial courts instruct bailiffs
to refrain from communicating about the case with jurors. Further, when jurors
ask questions of the bailiff, the bailiffs response should be limited to an
indication that he will forward the question to the judge. We recognize
that bailiffs have numerous opportunities to influence juries. Therefore, courts must be
ever cautious to minimize those opportunities consistent with practicality. It is important
that juries reach their decisions fairly and impartially. Likewise, it is of
equal importance to maintain the integrity of the judicial system and avoid the
appearance of partiality in the decision-making process. Consequently, while we find no
prejudice here, we will continue to examine closely communication between bailiffs and juries.
Farris, 732 N.E.2d at 235.
Because we find no prejudice resulting from the bailiffs brief conversation with the
jury foreman, we affirm Dixons convictions.
KIRSCH, J., and MATHIAS, J., concur.