Stancombe v. State

605 N.E.2d 251, 1992 Ind. App. LEXIS 1969, 1992 WL 385508
CourtIndiana Court of Appeals
DecidedDecember 30, 1992
DocketNo. 53A01-9206-CR-202
StatusPublished
Cited by1 cases

This text of 605 N.E.2d 251 (Stancombe v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stancombe v. State, 605 N.E.2d 251, 1992 Ind. App. LEXIS 1969, 1992 WL 385508 (Ind. Ct. App. 1992).

Opinion

ROBERTSON, Judge.

Gary Stancombe appeals his jury trial conviction of reckless homicide as a class C felony, for which he received an enhanced, [253]*253eight-year sentence. On appeal, he claims the trial court’s procedure for permitting jury questions was an abuse of discretion.

We affirm.

Stancombe grounds his claim of reversible error on questions propounded by members of the jury during the course of his trial. A summary of those questions is:

1. A question regarding whether Stan-combe was charged with murder;
2. A question which requested that a witness demonstrate a head shaking incident referred to in his testimony;
3. A question which sought additional information about the cause of bruises, lacerations, and stippling on the body of the deceased;
4. A question which sought to determine how long it took the deceased to die after having been shot;
5. A question about whether the exhibit envelope was sealed after the gun had been placed in it;
6. A series of questions relating to the mechanical operation of the pistol and the ammunition used, as well as the terms used to describe those operations; and
7. A question about finding fingerprints on the pistol by the police.

Our supreme court has stated that a preliminary instruction which tells the jurors they are not permitted to ask questions of any of the witnesses is erroneous. Carter v. State (1968), 250 Ind. 13, 234 N.E.2d 650. The practice of permitting jurors to propound questions should not be encouraged by the trial court, but it should not be forbidden by preliminary instruction. Id. at 16, 234 N.E.2d at 652. See also, Dolezal v. Goode (1982), Ind.App., 433 N.E.2d 828 (Carter did not rely upon the Indiana Constitution and applies in a civil context); Tyson v. State (1979), 270 Ind. 458, 386 N.E.2d 1185 (Carter applied where trial court allowed jurors to ask questions of counsel following their respective arguments; although procedure not recommended, prejudice which would require reversal not shown). As a question is propounded during the course of a trial, it is within the sound discretion of the trial court to make a determination about' whether the question is for the evident purpose of discovering the truth and whether such question is proper. Carter 250 Ind. at 16, 234 N.E.2d at 652.

Although it is error to instruct the jury that it could not ask questions, this is not tantamount to instructing the jury that it may. Cherry v. State (1972), 258 Ind. 298, 300, 280 N.E.2d 818, 820 (no error in trial court’s refusal to instruct jurors that they may ask questions of the witnesses during the trial). The practice of permitting jurors to ask questions should not be encouraged for the reasons that generally jurors are not familiar with the rules governing the admission of evidence; that, in the very nature of such a situation, counsel quite naturally will hesitate to object to a question propounded by a juror, even though it may be incompetent; and that the practice is so dangerous to the rights of the litigant. Id. (quoting White v. Little (1928), 131 Okl. 132, 268 P. 221).

The appellant in Cheeks v. State (1977), 266 Ind. 190, 361 N.E.2d 906, challenged the procedure used by the trial court when it allowed the jurors to ask questions of witnesses. The jurors submitted written questions to the court through the bailiff at the conclusion of direct and cross-examination. Before any question so submitted was posed to a witness, defense and prosecution counsel had been summoned to the bench, shown the question, and asked if there were any objections. The appellant objected to no particular questions, but objected to the procedure used on the apparent ground that it would be prejudicial to the defense to present any objection to such a question in the view of the jury. The court there stated:

The procedure used in this case, in which counsel are summoned to the bench to see the question before it is posed, would seem to be intended to permit objections out of the hearing, if not the presence, of the jury. The Appellant has not shown that this procedure failed to remedy the problems raised in the Carter and Cherry decisions, nor has he presented any [254]*254question posed through this procedure as improper or prejudicial.

Id. at 195-196, 361 N.E.2d at 910 (no abuse of discretion under the circumstances).

In Tyson, 386 N.E.2d 1185, a juror offered a question of counsel after arguments. The jurors submitted written questions to the judge, who examined them to see if they were proper. Counsel objected to the procedure in the presence of the jury and claimed this prejudiced him. The Tyson court did not accept the claim of prejudice because the trial judge had instituted the procedure and had invited the objection. Thus, the jury would not have fixed responsibility or prejudice on either of the parties.

In Matheis v. Farm Feed Const. Co. (1990), Ind.App., 553 N.E.2d 1241, the appellant claimed abuse of discretion where the trial court permitted juror questions during and after appellant’s rebuttal evidence, permitted opposing counsel to ask a question created by one of the jurors, and permitted the juror to ask a question of a particular witness. The appellant maintained that the trial court should have used a procedure whereby the trial court would have instructed the jurors that if any of them had had question, it should have been written down and submitted to the court for review. Instead, the court screened the jurors’ questions and discussed counsels’ objections at the bench before the questions were asked in open court. On appeal, this Court stated that Cherry, 258 Ind. 298, 280 N.E.2d 818, directs that judges not solicit juror questions but to permit questions at any time, subject to proper regulation by the court. Matheis, 553 N.E.2d at 1242. Under the circumstances, the appellant did not show he had been harmed by the procedures. Id. (The court examined the substantive evidence elicited by the questions when it addressed harm.)

Consistent with Carter, 250 Ind. at 16, 234 N.E.2d at 652, when the trial court determines whether the question is for the evident purpose of discovering the truth or whether a question is proper, it necessarily examines the substance of the question posed by the juror. In this case, Stan-combe claims the procedure used by the trial court was an abuse of discretion, not that the substance of the questions was improper or prejudicial.

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Related

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664 N.E.2d 773 (Indiana Court of Appeals, 1996)

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Bluebook (online)
605 N.E.2d 251, 1992 Ind. App. LEXIS 1969, 1992 WL 385508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stancombe-v-state-indctapp-1992.