ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
CAROLINE B. BRIGGS PAMELA CARTER
Flora, Indiana Attorney General of Indiana
Deputy Attorney General
NATHAN M. GOOCH, ) ) Appellant-Defendant, ) ) vs. ) No. 34A02-9507-CR-391 ) STATE OF INDIANA, ) ) Appellee. )
We affirm in part and reverse in part.
On November 18, 1994, Gooch was charged with OWI.See footnote 2 This was not, however, Gooch's first motor vehicle-related embroilment with the Howard County courts. In July of 1989, Gooch was involved in a motor vehicle accident in which a Howard County resident was fatally injured. Gooch was subsequently charged and convicted of Reckless Homicide. Although the authorities never alleged that the 1989 incident was alcohol-related, Gooch believes that many county residents suspected that alcohol was involved. In fact, Gooch claims that the local newspaper, the Kokomo Tribune, published an article prior to the instant trial which intimated that the 1989 accident was alcohol-related.See footnote 3
Because of his suspicion, Gooch filed a pre-trial motion for a change of venue from Howard County, reasoning that due to the notoriety of the 1989 accident and the community's erroneous belief that Gooch had been drinking at the time, he could not be tried
by a fair and impartial jury. Gooch's motion, which was renewed at various stages of the
proceedings, was repeatedly denied. Gooch's fear of juror prejudice also surfaced during voir
dire, and defense counsel sought to strike all jurors who had knowledge of Gooch's 1989
accident and conviction. The court, however, stated that it would only find cause to strike
those jurors who both had knowledge of the prior conviction and who indicated that they
could not be fair and impartial. Gooch moved to strike a number of jurors for cause. Two
of these motions, to strike jurors Wells and Merrick, were denied. Gooch was subsequently
convicted and assessed with $1060.00 for jury fees.
prior to the trial. The potential jurors who indicated that they could not be fair to Gooch due
to the prior accident were promptly removed from the panel for cause. Of the impaneled
jurors, only three indicated that they had heard of the defendant before the trial. All three
indicated that they would be able to render a verdict based exclusively upon the evidence.
Finally, all of the jurors took an oath to decide the case exclusively upon the evidence
presented at trial. The record reveals that the judge painstakingly attempted to select a jury
which would ignore any prior knowledge of the defendant and decide the case solely upon
the evidence. All of the selected jurors indicated that their performance would satisfy this
criteria. Given the efforts of the trial court and the assurances of the jurors, we cannot say
that the court abused its discretion in refusing to move the trial out of Howard County.See footnote
instructed by the court, and refusal to strike a juror for cause under such circumstances is
neither illogical nor arbitrary. Jackson, supra 597 at 950. Moreover, when a juror has some
preconceived notion about the guilt of a defendant, the trial court may, within its discretion,
refuse a motion to strike for cause if the juror states that he or she will impartially render a
verdict based upon the evidence. I.C. 35-37-1-5 (Burns Code Ed. Repl. 1994).
Gooch sought to remove juror Merrick for cause after Merrick stated that he would give more weight to the testimony of police officers than to other witnesses. However, Merrick also stated that he would do his best to be fair, to set aside extraneous information, and to form an opinion as to Gooch's guilt only after hearing all of the evidence. Moreover, while he indicated that he might consider a police officer to be more credible than another witness, Merrick stated that he would accept the trial court's instruction that Gooch was not obligated to testify on his own behalf. The trial court was apparently satisfied by the above- cited assurances that Merrick would be impartial and would follow the court's instructions. Although the court could have appropriately excused him, we cannot say that the court's refusal to strike juror Merrick for cause was illogical or arbitrary.
Gooch also moved to disqualify juror Wells. During voir dire, Wells was overtly upset about the prospect of serving as a juror in light of her knowledge of the 1989 case. Although Wells initially indicated that she might not be able to be impartial, she ultimately concluded that she understood that the two cases were separate events and stated that she could disregard her knowledge of the 1989 accident and base her decision upon the evidence presented. In light of this assurance, the court's refusal to strike juror Wells for cause was
neither illogical nor arbitrary. The trial court did not abuse its discretion in refusing to
disqualify for cause jurors Merrick and Wells.
501; Walden v. State (1988) Ga., 371 S.E.2d 852; People v. Kluck (1979) Ill.App., 388
N.E.2d 918; State v. Thomson (1961) Kan., 360 P.2d 871. Moreover, the broad statutory
authority to assess the "costs of prosecution" against a convicted defendant is generally held
not to include the authority to tax a defendant with jury expenses, on the theory that these
are not costs of prosecution, but rather represent expenditures which must be made in order
to maintain and operate the judicial system irrespective of specific violations of the law.
Mickler v. State (1996) Fla.App., 682 So.2d 607.
There is no statutory authority in Indiana for the assessment of costs relating to jury service against a convicted defendant. I.C. 33-19-5-1 sets forth the various fees which may be collected from a defendant in a criminal action resulting in a felony or misdemeanor conviction. This statute provides that such convicted defendants must pay a criminal costs fee of $110See footnote 5 , I.C. 33-19-5-1(a), and may be required to pay one or more of a number of other fees. I.C. 33-19-5-1(b). However, nowhere in this statute is to be found the authority for a trial court to assess a convicted defendant with jury fees. We need not determine whether the legislature could properly direct a trial court to assess jury fees against a convicted defendant, for it has not done so. Absent such authority, the trial court had no power to assess jury costs against Gooch, and they must be returned to him upon remand if he has indeed paid them.
The judgment of the trial court is affirmed in part and reversed in part.
SHARPNACK, C.J., and KIRSCH, J., concur.
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