Randall v. State

495 N.E.2d 171, 1986 Ind. LEXIS 1192

• Court: Indiana Supreme Court
• Decided: July 16, 1986
• Docket: No. 484S125
• Status: Published

Opinions

GIVAN, Chief Justice.

A jury trial resulted in a conviction of Burglary, a Class B felony. Appellant was sentenced to twelve (12) years imprisonment.

The facts are: On the evening of February 25, 1983, Elnora Comar entered her apartment in Gary, Indiana. Upon entering she was apprehensive that some unauthorized person was in her apartment. With her .357 magnum in hand, she proceeded to check the rooms. When she entered her child's bedroom, the lights would not work. Comar discerned that someone was in the room. She fired her gun into the area behind the door. A person identified as appellant was wounded by the shot but was able to struggle with Comar. After breaking free he grabbed a bundle and fled the premises.

Comar was unable to see the face of the intruder but described him as dark-complected, heavyset and approximately three to four inches taller than her height of five foot six inches. She did observe that he was wearing a green army jacket.

When police officers arrived at the apartment, they discovered a .38 caliber revolver laying in the child's bedroom. Co-mar's .357 magnum was not found.

Shortly after the officers arrived at the Comar residence, another call was received by the police concerning a shooting victim a few blocks from Comar's apartments Responding officers found appellant who stated he had been shot. At the time of his arrest appellant was not carrying a weapon, nor did he have any objects on his person taken from the Comar apartment. Comar was unable to identify the victim immediately after his arrest.

Both appellant's and Comar's bloodstained clothing were tested by a forensic serologist who determined that the blood type on each item of clothing was the same and matched appellant's blood type. Investigation of Comar's apartment showed forceful entry through a bathroom window. The bloodstains and a gun not belonging to Comar were strong evidence that a burglary had in fact occurred.

At the time of the incident, Comar observed appellant grab a bundle before he exited the apartment. Several days after the incident she reported to the police that she was unable to find some of her jewelry. It was within the province of the jury to weigh this cireumstantial evidence and to determine whether or not appellant was in fact guilty as charged. Napoli v. State (1983), Ind., 451 N.E.2d 35.

Appellant claims there is reversible error in the record because the jury returned a verdict against him for a crime not contained in the charging information. He bases this accusation on the fact that the judge purporting to read from the written verdict stated "[wle, the Jury, find the defendant, Esaw Randall, guilty of Robbery, Class C felony. Signed M.S. Schmidt, foreman."

The record in fact discloses that the only verdict returned by the jury read as follows: "We, the jury, find the defendant, Esaw Randall, Jr., guilty of Burglary, a Class B felony. Signed Janice Schmidt, FOREMAN."

It is obvious from this record that the trial judge had the latter written verdict before him when he purported to read therefrom and made the statement contained in the former quote. It is obvious from the record that he had no such verdict before him when he spoke to the jury, nor did any member of the jury purport to give an oral statement concerning the nature of the crime. It is obvious the judge simply misspoke when he read the written verdict of the jury. Following the erroneous reading by the judge, the jury was polled. Each juror was asked "Sir, is that your verdict?" or "Ma'am, is that your verdict?" In each instance the juror questioned answered in the affirmative.

Appellant takes the position that thus each juror returned a verdict for Robbery rather than Burglary. We cannot accept this hypothesis. The jury had deliberated and rendered a written verdict of guilty of Burglary, a Class B felony. There is no question this is what they had in mind at the time of the polling. The judge's misspoken words "Robbery, Class C felony" in place of "Burglary, a Class B felony" is an interchange of wording which should not be used by a person trained in the law but is certainly a common experience of laymen.

We often hear persons refer to the fact that their house was "robbed" while they were away or, on the other hand, that "burglars" entered the filling station on the corner and stole money from the attendant. The terms "robbery" and "burglary" are so interchangeably and erroneously used by the lay public that it is doubtful that jurors would discern the mistake apparently made by the trial judge.

What we have in this case is clearly a written verdict by a jury which is unequivocal as opposed to a spoken statement by a judge for which there was absolutely no basis. We treat the judge's error as de minimis and affirm the trial court.

PIVARNIK and SHEPARD, JJ., concur. DICKSON, J., concurs in result with separate opinion. DeBRULER, J., dissents with separate opinion.