Threats v. State

582 N.E.2d 396, 1991 Ind. App. LEXIS 2112, 1991 WL 257510
CourtIndiana Court of Appeals
DecidedDecember 9, 1991
Docket45A05-9107-CR-220
StatusPublished
Cited by19 cases

This text of 582 N.E.2d 396 (Threats 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
Threats v. State, 582 N.E.2d 396, 1991 Ind. App. LEXIS 2112, 1991 WL 257510 (Ind. Ct. App. 1991).

Opinions

BARTEAU, Judge.

A jury found Stacey Threats guilty of robbery as a Class B felony.1 His appeal presents three issues, which we restate and answer as follows:

1. The evidence was sufficient.
2. The trial judge did not err by replacing a juror during the jury’s deliberations.
3. The trial judge erred by not explaining to the remaining jurors why the one had been replaced.

We reverse.

SUFFICIENCY

The victim’s identification of Threats made the State’s case. The defense consisted of (a) cross-examining the victim to expose inconsistencies in the identification, and (b) presenting the alibi testimony of Threats’ wife.

In Threats’ brief, the inconsistencies are called to our attention, as well as the idea that eyewitness identification evidence is “doubtful at best.” Stinson v. State (1974), 262 Ind. 189, 191, 313 N.E.2d 699, 701. The State’s brief focuses on the portions of the victim’s testimony favorable to the verdict, in conformity with the well-known standard of review: “On review, we will neither reweigh the evidence nor judge the credibility of the witnesses. We look only to the evidence most favorable to the State to determine whether the crime was proven beyond a reasonable doubt.” Young v. State (1986), Ind., 493 N.E.2d 455, 457 (citations omitted).

Here, the evidence most favorable to the State came from the victim, who selected the defendant’s picture at the police station after viewing ten or eleven slide carousels, and later identified Threats in court as the robber, testifying “I couldn’t stop staring at him_ I could never forget his face. It’s imprinted on my mind.” Any conflict among that testimony, its inconsistencies, and Threats’ alibi evidence was resolved by the jury, whose province we will not invade. We hold the evidence was sufficient. It is well-settled that the uncorroborated [398]*398testimony of the victim can sustain a robbery conviction. See, e.g., Young, supra.

Our holding is supported by both Young — a case in which the appellant argued to no avail that discrepancies between the victim’s description and the defendant’s appearance rendered the evidence insufficient — and Stinson, the case quoted by Threats. In context, the “doubtful at best” quote from Stinson appears as follows:

It has often been observed by this Court and courts in other jurisdictions that personal identification evidence is doubtful at best and should be subject to close scrutiny. It would be naive to say that any person could be absolutely certain of the identification of another person whom they had never known previously and had observed only in a brief period of excitement and great tension. All testimony of such a nature must certainly be subject to extensive cross-examination in order that the jury may properly evaluate its content.

Stinson, 262 Ind. at 191-92, 313 N.E.2d at 699.

Here, defense counsel on cross-examination elicited the various discrepancies. The jury heard the witnesses’ testimony, evaluated its content, and then made its decision. Threats’ argument invites us to reweigh the evidence, or rule as a matter of law that uncorroborated personal identification testimony is insufficient evidence. We refuse to do either.

REPLACEMENT OF JUROR

During jury selection, it was discovered that a member of the venire, Moss, had known Threats years before. Nevertheless, Moss was not struck from the jury, and eventually became its foreman. Then, two hours into the jury’s deliberation, Moss revealed to the other jurors that he knew Threats’ wife. One of them called this to the attention of the bailiff, who informed the judge.

The trial judge summoned Moss from the jury room. Moss explained, in response to questions from the judge, the prosecutor, and defense counsel, that he had seen Mrs. Threats among the worshipers at his church. However, the two were not friends, and nothing indicated that they had discussed the case. Nevertheless, the trial judge replaced Moss with an alternate juror. Threats then moved for, and was denied, a mistrial.

Under discussion here is the decision to replace Moss, in which we see no error. Our discussion of Threats’ motion for mistrial is reserved for the final section of this opinion.

Ind. Trial Rule 47(B) states that alternate jurors “shall replace jurors who, prior to the time the jury returns its verdict, become or are found to be unable or disqualified to perform their duties.” Trial court decisions on replacing a juror with an alternate are reviewed for abuse of discretion. Ferry v. State (1983), Ind., 453 N.E.2d 207, 213. An abuse of discretion occurs only if the decision places the defendant in substantial peril. Woolston v. State (1983), Ind., 453 N.E.2d 965, 968, reh’g denied.

A biased juror must be removed, for Art. 1, § 13 of the Indiana Constitution guarantees an impartial jury. A juror’s bias may be actual, or, implied, that is, presumed from the juror’s relationship with one of the parties. Block v. State (1885), 100 Ind. 357, 362. Implied bias is attributed to a juror upon a finding of a certain relationship, regardless of actual partiality. See, e.g., Haak v. State (1981), 275 Ind. 415, 417 N.E.2d 321 (juror whose husband was hired, on the first day of trial, as a deputy prosecutor by the prosecutor whose office was prosecuting the case).

Actual bias can arise, in the absence of a juror’s admission of partiality, by inference from some connection of the juror to the case, where the nexus is insufficient to create implied bias. A trial judge’s discretionary finding of actual bias turns on a calculus incorporating the nature of the link and any indications of partiality. See, e.g., Woolston, 453 N.E.2d at 968 (no bias where juror knew and disrespected defense witness but did not doubt witness’s truthfulness and asserted impartiality); Creek v. State (1988), Ind., 523 N.E.2d 425, 427 (no [399]*399bias where juror and State’s witness had “casual contact” at workplace and had agreed to not discuss the case); Stevens v. State (1976), 265 Ind. 396, 354 N.E.2d 727, on reh’g 265 Ind. 396, 357 N.E.2d 245 (no bias where juror discussed case with coworker who was defendant’s sister-in-law and defense witness; juror could not remember details of discussion and had formed no opinion as to guilt).

Removal of a biased juror is proper regardless of which way the bias cuts. See Haak, supra; Landers v. State (1975), 165 Ind.App. 221, 233, 331 N.E.2d 770, 777, trans. denied (defendant conversed with juror during recess and introduced her daughter to juror). See also Ind.Code 35-37-l-5(a)(ll) (venire member may be challenged for cause if “biased or prejudiced for or against the defendant.”).

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Threats v. State
582 N.E.2d 396 (Indiana Court of Appeals, 1991)

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Bluebook (online)
582 N.E.2d 396, 1991 Ind. App. LEXIS 2112, 1991 WL 257510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/threats-v-state-indctapp-1991.