The Appellant was charged by way of affidavit with the offense of first degree burglary which allegedly occurred on the 3rd day of July, 1970, in St. Joseph County, Indiana. The affidavit was filed against him on the 23rd of July, 1970, and thereafter the Appellant entered a plea of not guilty by reason of insanity. The Appellant filed a motion to be examined as a possible criminal sexual psychopath on the 15th of March, 1971, and the court appointed two psychiatrists to examine the Appellant and report to the court. On July 11, 1971, the trial court overruled the Appellant's request for a hearing to adjudicate the Appellant as a criminal sexual psychopath. The Appellant also filed a motion to suppress certain identification evidence, which will be discussed in more detail later, which was overruled by the court. The trial of the case commenced on June 21, 1971, and at the end of the presentation of the State's case in chief the cause was continued until the next morning and the jury separated. The next morning Appellant filed a motion for mistrial because of a newspaper article that appeared in The South Bend Tribune, which motion was overruled by the trial court and is assigned as error here.
The jury returned a verdict of guilty. On July 7, 1971, Appellant filed his petition to adjudicate the defendant as a criminal sexual deviant, which petition was denied.
Thereafter, the court sentenced the Appellant to the Indiana State Reformatory for a period of not less than ten nor more than twenty years.
The Appellant presents and argues three essential issues in this case: (1) Whether the trial court erred in treating the criminal sexual psychopath statute, which had been repealed, as inapplicable to this case. (2) Whether the trial court erred in denying a motion to suppress evidence of identification. (3) Whether the trial court erred in denying a mistrial requested because of the newspaper article about the trial.
The criminal sexual deviancy act is Acts 1971, P.L. 452, I.C. 1971, 35-11-3.1-1 et seq., which is found in Ind. Ann. Stat. § 9-4001 (Burns' 1971 Cum. Pocket Supplements). This act contained an emergency clause and was approved on April 8, 1971. It also contained a specific repeal of the criminal sexual psychopath act which was Acts 1949, ch. 124, §§ 1-4, and Acts 1959, ch. 356, § 1, I.C. 1971, 35-11-3-1 through 35-11-3-4, as found in Ind. Ann. Stat. §§ 9-3401-3404 (Burns' 1956 Repl.). Under the criminal sexual psychopath act our Supreme Court has stated that the trial judge was given the broadest discretion in such cases which will be reversed only when the sole possible explanation of the conduct is an abuse of discretion. See State ex rel. Savery v. Marion Criminal Court, 234 Ind. 632, 130 N.E.2d 128 (1955), Wolfe v. State, 247 Ind. 540, 219 N.E.2d 807 (1966). In the Savery decision our Supreme Court specifically stated that the interposing of a plea of not guilty by reason of insanity is itself a ground for denying a petition for relief under the criminal sexual psychopath act.
The Criminal Sexual Deviancy Act contains the provision:
The crime of first degree burglary is not a sexual offense within the meaning of the criminal sexual deviancy act.
Our position here is confirmed by the opinion of our Supreme Court in State ex rel. Stiles v. Hendricks Cir. Ct., Ind., 281 N.E.2d 89 (decided April 12, 1972).
The Appellant was not entitled to relief as a matter of law under either the criminal sexual psychopathic act or the criminal sexual deviancy act.
The offense in this case is alleged to have occurred at a residence in South Bend, Indiana, at approximately 4:30 o'clock A.M. when the occupant of the residence went to the living room of her home to turn off a lamp that had been left burning during the night. At that moment she discovered a man standing in the doorway of the kitchen. The man had apparently gained admission by slashing the screen on the rear door. The witness made a positive identification of the man as being the Appellant. At the time she first saw him in the kitchen doorway he was only three feet away from her and facing her. The light from the lamp was shining directly in his face. She then noticed that there was something wrong with his eyelid. The man demanded money from her and she tried to flee but he caught her in her bedroom. He forced her to hand over money in the amount of $20.00 and struck her several times and threatened her. Sometime later this witness was shown a photograph by the police and stated that a picture of the Appellant bore a strong resemblance to the man she saw in her house on the morning of July 3, 1970. On the 12th of July, 1970, the Appellant was led into a certain room with two other males in a Paw Paw, Michigan, jail for the purpose of lineup identification by this witness. The Appellant did not have the presence of counsel nor was he notified that he was participating in a lineup. The witness made an identification of the Appellant while viewing the Appellant through the window for about five minutes.
In the briefs and in oral argument the Attorney General has admitted that the lineup in this case was not made under the procedures required by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). However, the Attorney General argues that the identification in this case has an independent source apart from the illegal lineup. In Gilbert, the Supreme Court of the United States divided identification into two groups. The first group of witnesses testified on direct examination only that the defendant was the man that robbed them, without mention of any lineup. The lineup was brought out on cross-examination, as it was in this case. In Gilbert the second group testified on direct examination that they had viewed the lineup and there identified the defendant as the robber. The illegal lineup was thus used by the State as corroborative evidence of the in-court identification. The Supreme Court in Gilbert ruled that as to the second group, who had testified on direct examination of the lineup, evidence of an independent origin could not salvage the conviction. As to the group that, on direct examination, made only an in-court identification without referring to prior identification, the Supreme Court stated:
In this case the evidence from an independent source includes the opportunity that the witness had at the time of the offense to examine the burglar's features. When she first saw him in her house that night, he was standing only about three feet away from her, facing her, with a light shining in his face. She was able to see that there was a scar or some other noticeable feature on his eyelid. She also noted the color of pants he was wearing and was able to describe, in detail, his hat. They were also in close proximity for sometime in the bedroom which was partially lighted. In Fulks v. State, Ind., 262 N.E.2d 651 (1970), Justice Givan, speaking for a majority of our Supreme Court, stated:
More recently our Supreme Court was confronted with a similar question in Martin v. State, Ind., 279 N.E.2d 189 (1972), wherein Justice Hunter speaking for the majority laid down the following guidelines:
Tested by the above standards there is clear and convincing evidence in the record in this case to establish each of the stated criteria. In fact a much stronger case is presented here on each point than in Martin.
On the basis of the record in this case we find that in-court identification of
It would also appear that the evidence of identification from an independent source is well within the rules laid down by Judge Jackson in Douglas v. State, Ind., 261 N.E.2d 567 (1970).
On the evening of June 21, 1971, an article appeared in The South Bend Tribune which is a newspaper widely circulated in and around St. Joseph County, Indiana, in which it is stated:
The Appellant filed a motion for a mistrial due to the prejudicial atmosphere created by the News Media the morning after the article was published, which motion was denied. The general rule in Indiana is that the granting of a mistrial rests largely in the sound discretion of the trial judge. Bonds v. State, Ind., 280 N.E.2d 313 (decided March 30, 1972); Greenwalt v. State, 246 Ind. 608, 209 N.E.2d 254 (1965), and Duke v. State, 49 Ind. 466, 233 N.E.2d 159 (1968). Thereafter the trial court conducted an extensive in-court voir dire of each juror in order to determine whether any of the jurors were exposed to the article in question. Those jurors that had read the article, stated, under oath, that they were not influenced by the article.
The specific practice of attempting to impeach a jury's verdict by the use of affidavits was specifically rejected in Jessop v. Werner Transportation Co., Ind. App., 261 N.E.2d 598 (1970); Nowling v. Akers, Ind. App., 274 N.E.2d 546 (1971), and Leuck v. Goetz, Ind. App., 280 N.E.2d 847 (decided April 3, 1972).
In view of the specific holdings of this court and our Supreme Court on the practice of soliciting and securing jurors' affidavits to undermine a jury verdict it should now be clear that such practice is entirely inconsistent with the sanctity of jury deliberations, past and present. To even imply that such a practice is permissible is an open invitation to harassment of jurors by unsuccessful counsel after every jury trial. We are not prepared to be a party to such an invitation. It is all too easy for ingenious counsel to prepare carefully worded affidavits to cast doubt on a jury verdict. Such a practice undermines the right to trial by jury.
The Appellant's basic contention is that the article injected rape into the case when there was no evidence in the trial from which the same might be inferred. On direct examination the prosecuting witness testified as follows:
At a later time the same witness gave the following testimony:
We do not here have the kind of intensive and pervasive publicity which was involved in Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and Baniszewski v. State, Ind., 261 N.E.2d 359 (1970).
In Napier v. State, Ind., 266 N.E.2d 199 (1971), Justice Givan, speaking for our Supreme Court, stated:
The Supreme Court of the United States or our own Supreme Court have never held that jurors must be absolutely insulated from all expressions of opinion on the merits of a case or the judicial process at the risk of requiring a new trial. See Irvin v. Dowd, supra.
We are not here concerned with the conduct of acts by counsel, either for the State or Defendant, which bring about the publication of extra judicial information regarding a pending trial. The entire thrust of the American Bar Association's Minimum Standards for Criminal Justice relates to conduct by counsel. In this case there is not the slightest suggestion that the publication of any information was procured by the Prosecuting Attorney of St. Joseph County. The same is true of the law enforcement agencies involved in the investigation of this case.
These two courts have refused to hold that jury contact with outside information is always a cause for overthrowing a verdict and have wisely held that each such case must "turn on its special facts". Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250.
Marshall, Estes, Sheppard and Irvin all require a substantial showing of prejudice in fact to be made before a due process violation can be found. It is unrealistic and impossible to expect or require that a jury be a laboratory completely sterilized and freed from all external factors.
It is within the discretion of the trial court to interrogate or poll the jury to ascertain whether they have read newspaper articles pertaining to the trial. Ford v. United States, 233 F.2d 56 (5th Cir.1956), cert. den. 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53 and United States v. Manning, 440 F.2d 1105 (5th Cir.1971), cert. den. 404 U.S. 837, 92 S.Ct. 125, 30 L.Ed.2d 69 (1971).
All references to prior convictions, arrests or other offenses are not per se reversible error if the trial court takes appropriate corrective action. There are a number of examples where our Supreme Court has considered such as harmless error. See Brown v. State, Ind., 281 N.E.2d 801 (decided May 1, 1972), and Moore v. State, Ind., 280 N.E.2d 57 (decided March 21, 1972). See also Duke v. State, 249 Ind. 466, 233 N.E.2d 159 (1968).
We find no abuse of discretion in the procedure followed by the trial court in this case.
In view of the answers of the jurors under oath the trial judge, appropriately and wisely, conducted an extensive voir dire examination of the jury in-court, which examination was under oath. The Judge had the opportunity to observe the demeanor and the conduct of the jury at that time as well as throughout the entire trial. Given the premises set forth in the Estes, Sheppard and Napier cases we cannot here say as a matter of law that this one article in The South Bend Tribune should be the basis for reversing this case. As Justice Hunter appropriately pointed out in Harris v. State even if some member of the jury has read an article pertaining to a trial, it is clear that the reading of a newspaper article pertaining to the case by a juror is not grounds for a mistrial, new
The Appellant having failed to convince us of the existence of any reversible error the decision of the trial court is hereby affirmed.
HOFFMAN, C.J., concurs.
STATON, J., dissents with opinion.
THE COURT: Ladies and Gentlemen of the Jury. An unfortunate thing happened here and I must make an inquiry at this time that I could not make before you returned a verdict. There was a story about this case that appeared in the South Bend Tribune yesterday afternoon and last evening.
Now, I must ask each one of you if you read, saw or read that story. You're assigned by numbers, you're Juror Number One in the front seat and six. Seven is back there and twelve is the last juror over here.
Juror Number One, did you see the story?
H.C. OVERGAARD: I did not.
THE COURT: You did not see it or read it?
H.C. OVERGAARD: No.
THE COURT: Juror Number Two, did you see or read it?
MARTHA SWANSON: Yes, I did.
THE COURT: Did this have something to do with your verdict at all?
MARTHA SWANSON: No.
THE COURT: Juror Number Three, did you see or read the story?
RAYMOND VANDERGRACHT: No, sir, I did not read it.
THE COURT: Juror Number Two, you did read the story?
MARTHA SWANSON: Yes, I did.
THE COURT: You read all of it?
MARTHA SWANSON: I didn't realize that it was the same case from the headline.
THE COURT: Juror Number Four, did you read the story?
ELMER LOVE: I read the headline and that was it.
THE COURT: You didn't read the body of the story?
ELMER LOVE: No.
THE COURT: Juror Number Five, did you read or see the story?
IRENE REED: I did not read or see it.
THE COURT: Juror Number Six, did you see or read the story?
HELEN HEINTZELMAN: No, I did not. I know that there was one. My husband made reference to it and I said that we're not suppose to read it and I didn't even see it.
THE COURT: Juror Number Seven, did you read or see the story?
WILLIAM BECKER: I read the headline.
THE COURT: Anything further?
WILLIAM BECKER: No.
THE COURT: Juror Number Eight, did you see or read the story?
RAYMOND HINTZ: I read the name Raymond Lindsey and I stopped.
THE COURT: You read just the headline and the name?
THE COURT: Juror Number Nine, did you read or see the story?
MARY FITZGERALD: I did not read the paper.
THE COURT: Juror Number Ten, did you read or see the story?
DOROTHY BAGARUS: I did not read it. I saw the caption of the article and I did not read it.
THE COURT: Juror Number Eleven, did you see or read the story?
RON GRONTKOWSKI: I also saw the headline and my wife told me that it was in the paper.
THE COURT: Juror Number Twelve, did you read or see the story?
MARGARITA FELAN: I saw it and I read it.
THE COURT: You read the whole story?
MARGARITA FELAN: Yes.
THE COURT: Did it have anything to do with your verdict today?
MARGARITA FELAN: No.
THE COURT: Is there any other question that you want me to ask them, Mr. Brennan.
MR. BRENNAN: If your Honor, please. Number Eleven and Number Six have said something to the effect that they have talked to their spouses.
THE COURT: You have a right to inquire.
MR. BRENNAN: Madam, you stated that you talked to your husband about the story?
HELEN HEINTZELMAN: I didn't talk with him. I came in and he said that he had seen it in the paper and he said, I suppose, that you're on this thing and I said we're not suppose to talk about it. He said that I seen it in the paper and I said, we're not suppose to read anything in the paper about it and we're not suppose to talk about it.
MR. BRENNAN: He didn't discuss with you what he read?
HELEN HEINTZELMAN: He did not. He is fair about that. I don't know what was in it.
MR. BRENNAN: And Mr. Grontkowski, what did you and the Mrs. talk about?
RON GRONTKOWSKI: Basically about the same thing. I walked in and she showed the paper to me and I saw the headline and she said, is this the story that you're in Court. I was really joking and said, we're not suppose to read that and I'm not going to tell you what happened today. Basically, that was the extent of our talk about the story in the paper. That was about the extent of it.
MR. BRENNAN: She didn't tell you about the contents of the story?
RON GRONTKOWSKI: No.
MR. BRENNAN: Thank you, very much.
STATON, Judge (dissenting).
The fundamental question before us is whether the defendant had a fair trial. He has an absolute right to a public trial by an impartial jury. This is guaranteed to him by the Sixth Amendment to the Constitution of the United States and Article 1, § 13 in the Constitution of the State of Indiana. This sacred right has been denied. I dissent.
The Defendant was not charged with rape. He was charged with first degree burglary. The testimony during the trial suggested that a rape had occurred. The newspaper article confirms it. The article reveals:
Other compelling reasons for my dissent are:
1. Reason One: Estes and Sheppard Cases do not apply; Napier Case can be distinguished.
I cannot accept the conclusion of my brothers that "given the premises set forth in the Estes, Sheppard and Napier cases we cannot here say as a matter of law that this one article in The South Bend Tribune should be the basis for reversing this case."
The only common denominator in Estes, Sheppard and Napier is the permeation of the news media into the judicial process. Estes and Sheppard are not applicable to the present case. In Estes v. State of Texas (1965), 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, the prejudice emanated from the televising of his notorious, heavily publicized and highly sensationalized criminal trial. Given the kind of media employed, the volume of newspaper reports, generated public interest and the resulting
Napier v. State (1971), Ind., 266 N.E.2d 199, cannot be lumped together with Sheppard and Estes as having the same common premise nor are their separate premises equally applicable to the case at bar. In Napier, supra, there was a single newspaper article which promised witnesses and testimony that did not materialize during the trial. An article appeared in The Noblesville Ledger on the evening of the first day of trial which stated:
Napier, supra, is easily distinguished from the case at bar. First the nature of the article is merely a promise of evidence as to the guilt of the Defendant which was never produced by the State at trial. Secondly, the trial judge "... [D]id everything reasonably within his power to remind the jury of his preliminary instruction that they should disregard anything heard on the radio or television or anything read in the newspapers concerning the case, and that they should make their decision based solely upon the evidence received in court." Napier, supra, 266 N.E.2d at 204. This protective action was taken by the trial court immediately upon learning of the newspaper article. Even in Napier, supra, the Supreme Court in its opinion written by Justice Givan stated:
Reducing the distinction of basic premises between Sheppard and Estes, supra, on the one hand, and Napier, supra, on the other to the simplest terms, we have a created atmosphere within the judicial process in Sheppard and Estes versus a single penetration of prejudicial information into the judicial process in Napier, supra. Sheppard and Estes are premised on a multiplicity of news media which are so intense and all encompassing that an atmosphere is created which actually penetrates the defendant's trial and denies to him a fair trial. This prejudice is presumed without having to inquire of the jurors. On the other hand, Napier, supra, is based not upon a created atmosphere within the courtroom but upon the actual reading of a single newspaper article whose actual prejudicial character and nature must be determined by the trial judge after making an inquiry of the jurors and after taking necessary protective procedures that may be required. Although my brothers in their majority
Napier, supra, is based upon a single newspaper article which may have been read by one or more jurors. The premise in Napier, supra, is not assumed but determined to exist by the trial court after inquiry made to the jury panel and after taking those protective measures deemed necessary by the jurors' answers to the inquiries which may include declaring a mistrial.
2. Reason Two: It is Mandatory for the Trial Court to Interrogate the Jury after Prejudicial Publicity has been brought to the Court's Attention.
I do not agree with the majority that: "It is within the discretion of the trial court to interrogate or poll the jury to ascertain whether they read newspaper articles pertaining to the trial." My brothers in the majority have cited the following Fifth District cases: Ford v. United States, 233 F.2d 56 (5th Cir.1956), cert. den. 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53 (1956), and United States v. Manning, 440 F.2d 1105 (5th Cir.1971), cert. den. 404 U.S. 837, 92 S.Ct. 125, 30 L.Ed.2d 69 (1971).
In Margoles v. United States, 407 F.2d 727 (7th Cir.1969),
This decision holds that it is mandatory for the trial court to interrogate the jury after prejudicial publicity has been brought to the court's attention.
In the present case, the trial judge did nothing until after the verdict of the jury. At the beginning of the second day of trial in the morning, the trial judge received the Defendant's motion for mistrial due to prejudice created by the news media. The trial judge proceeded on until final verdict without ever addressing the jury or making any effort to preserve a fair trial. The record shows the following interchange between the trial court, Defendant's attorney and the prosecutor while arriving at this decision:
In United States v. Palermo, 410 F.2d 468, 471, (7th Cir.1969), the Court citing United States v. Accardo, 298 F.2d 133 (7th Cir.1962) and Margoles v. United States, 407 F.2d 727 (7th Cir.1969), stated while reaffirming these cases that they:
The trial judge in the present case did neither upon learning of the prejudicial publicity. The voir dire after the verdict was meager and meaningless.
3. Reason Three: There is a Difference Between "Harpoons" and "Torpedoes"! The Majority's Assumption that "All References to Prior, Convictions, Arrests or Other Offenses are not Per Se Reversible Error if the Trial Court Takes Appropriate Corrective Action" is not Supported by Authority Cited and does not Apply in the Present Case where no Corrective Action was taken.
I cannot reconcile this assumption with the authorities cited: "All references to prior convictions, arrests or other offenses are not per se reversible error if the trial court takes appropriate corrective action. There are a number of examples where our Supreme Court has considered such as harmless error. See Brown v. State, Ind., 281 N.E.2d 801 (decided May 1, 1972), and Moore v. State, Ind., 280 N.E.2d 57 (decided March 21, 1972). See also Duke v. State, 249 Ind. 466, 233 N.E.2d 159 (1968)."
All of these cases are predicated upon the testimony of police officers given on the witness stand in court. In Brown v. State (1972) Ind., 281 N.E.2d 801, (decided May 1, 1972), Officer Racine was asked by counsel:
In Brown v. State, supra, the trial court admonished the jury that the remark by the Officer was improper and that they would disregard it in their deliberations.
In Moore v. State (1972) Ind., 280 N.E.2d 57, 58, Indianapolis Police Officer Sgt. Lund was asked:
"Q. When I ask a question, answer it.
In each of the above cases, Brown v. State, Moore v. State and Duke v. State, supra, the statements were made by Police Officers on the witness stand in court. No newspaper article was involved. No corrective action was taken by the trial court in the present case. The aforementioned cases are often characterized as "harpoon" cases. A newspaper article could very well be characterized as a "torpedo" since neither counsel or the trial judge know if the "torpedo" will hit its mark until the jury is interrogated. The trial judge must ascertain whether the damage has been severe enough to abandon the trial by declaring a mistrial or continue on with the trial after making repairs. This must be done immediately upon learning of the "launching of the torpedo." No immediate action was taken after learning of the "launching of the torpedo" in the present case. Therefore, the authorities cited by the majority do not support their proposition of law. "Harpoons" and "torpedos" are different.
4. Reason Four: Harris v. State Does Not Support the Majority's Position.
Harris v. State (1968), 249 Ind. 681, 694, 231 N.E.2d 800, 807, does not support the majority's position. In Harris, supra, the jury was asked by the court: "Has any member of the jury read the article concerning the trial in this morning's Courier Journal?" No response came forth from the jury. The jury was silent. It was never established by the appellant in the Harris case, supra, that the article had been read by the jury. The contention of the appellant was: "... that the mere publication of the article is grounds for reversal." Judge Hunter, writing the majority opinion in Harris, supra, 249 Ind. at 694, 231 N.E.2d at 807, concluded: "The rule requires much more than a mere speculation that an article was read by a juror and of course the law also requires more than a mere speculation that a juror had read the article and was prejudiced thereby." In the present case, two jurors admitted having read the entire article and five others were aware of it in varying degrees.
5. Reason Five: The Facts In The Present Case Come Squarely Within Marshall v. United States.
The present case comes squarely within Marshall v. United States (1959), 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250. Marshall, supra, stands for the proposition that publicity may be of such a nature and character that a juror exposed to it will be presumed prejudiced regardless of his insistence that he can remain impartial. In Marshall, supra, the defendant was convicted of unlawfully dispensing a number of dextroamphetamine sulfate tablets without a prescription from a licensed physician. The newspaper articles referred to two previous felony convictions: serving a forgery sentence in the State Penitentiary at McAlester, Oklahoma and serving sixty days in jail on a drug charge with his wife. The charge of dispensing a drug without a prescription from a licensed physician is just as dissimilar from forgery as rape is to burglary in the present case.
I can find no conflict between Napier, supra, Harris, supra, Marshall, supra, United States v. Palermo, supra, and Margoles v. United States, supra. The trial court committed reversible error when it failed to take immediate action upon being notified of the newspaper article. The trial court should have declared a mistrial. This cause should be reversed with instruction to grant a new trial.