Attorney for Appellant
Hilary Bowe Ricks
Indianapolis, IN
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
Nandita G. Shepherd
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
ARTIE THOMAS,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 18S00-0009-CR-536
)
)
)
)
)
)
APPEAL FROM THE DELAWARE SUPERIOR COURT
The Honorable Robert L. Barnet, Judge
Cause No. 18D01-9911-CF-0090
ON DIRECT APPEAL
August 27, 2002
SULLIVAN, Justice.
Defendant Artie Thomas was convicted of murder, conspiracy to commit
murder, and criminal recklessness. He and his accomplices shot into a
crowded house, killing one person and wounding three others. We affirm his
conviction, finding that the trial court’s response to a jury question
during deliberations was harmless error.
Background
The facts most favorable to the judgment indicate the following. On
the night of October 30, 1999, a local chapter of Kappa Alpha Psi
Fraternity held a fundraiser at a local YWCA. After the fundraiser, there
was a party at the house of a few of the fraternity members (“Kappa
house”). Defendant and seven or eight of his friends went to the Kappa
house, but were turned away at the door. They were told that the party was
full and it was only for Kappa members. Defendant and his friends
exchanged words with the Kappas and finally left the party. Upon leaving,
Defendant said, “we’ll be back and you better have the police here.”
As the group left the party they split up into separate groups.
Defendant said he was “going to the hood to get his [gun].” (R. at 929.)
One of Defendant’s friends, Terrence Manley, said, “I ain’t go to do
nothing but go down the street.” (R. at 929.) Another member of the
group, Tyrone Mason, took Louis Abrams to get Abrams’s gun.
The group met up again in the parking lot of a store near the Kappa
house. Defendant, Michael Bruno, Abrams, and Manley had guns. The group
parked their cars on a dark residential street so as not to be seen. They
walked toward the back of the Kappa house. At some point, someone said,
“let’s do this shit,” and Defendant, Manley, Bruno, and Abrams began
shooting into the house. Four people were shot. One victim, Julian Brown,
died and three other women were injured.
The State charged Defendant with three counts of criminal
recklessness resulting in serious bodily injury, a class C felony,[1]
Conspiracy to Commit Murder, a class A felony,[2] and Murder.[3] The jury
found Defendant guilty on all counts. The trial court sentenced Defendant
to consecutive sentences of eight years for each criminal recklessness
count and sixty years for the murder. The court imposed the sentence for
conspiracy to commit murder concurrent to the other counts for a total
sentence of 84 years of incarceration.
Discussion
Defendant contends that the trial court abused its discretion in
responding to a jury question. During closing argument, the prosecutor
read – without objection from the defense – a portion of an Indiana Supreme
Court opinion, Jones v. State, 689 N.E.2d 722 (Ind. 1997):
I want to also read you a little Indiana law. This is a Supreme Court
case from Indiana; Jones v. State of Indiana, Supreme Court of
Indiana, decided December 17, 1997 and in this case the Indiana
Supreme Court said: ‘To convict Jones of murder the prosecution must
prove and the jury must find that the defendant knowingly or
intentionally killed another human being.’ That’s what we have
charged the defendant. And they cite the Indiana Code. ‘When the
victim’s fatal injuries are inflicted by a weapon the trier of the
fact,’ which is the jury, ‘may infer intent to kill from the
intentional use of that weapon in a manner likely to cause death or
serious bodily injury.’ ... Here, talking about the Jones case, the
evidence indicates that Jones fired at least four shots in rapid
succession from a .9 millimeter handgun into the open door of a home
in which fifteen to twenty people were socializing. Sound familiar?
‘It was clearly reasonable for the jury to conclude that Jones used
the handgun, undoubtedly a deadly weapon, in a manner likely to cause
death or serious injury, and thus that he acted with the requisite
intent.’
(R. at 1709-1710.)
After the jury had retired for deliberation, the jury sent the trial
court judge a note that read: “The Jury would like to have access to the
precedents of Indiana Law which was read in court regarding a case in the
Supreme Court Re: a person knowingly shooting into a house with 15 or so
people in it.” (R. at 196.) Over Defendant’s objection, the judge called
the jury to the courtroom and re-read the portion of Jones that had been
previously read to the jury by the prosecutor during closing argument:
This is a Supreme Court case, the name of the case is Jones v. State
of Indiana, it is December 17, 1997, decided by the Supreme Court of
Indiana, Chief Justice Shepard writing it for the Court. ‘To convict
Jones of murder, the prosecution must prove, and the jury must find
that the defendant knowingly or intentionally killed another human
being. ... When the victim’s fatal injuries are inflicted by a deadly
weapon, the trier of fact may infer intent to kill from the
intentional use of that weapon in a manner likely to cause death or
serious bodily injury. ... Here the evidence indicates that Jones
fired at least four shots in rapid succession from a nine millimeter
handgun into the open door of a home in which fifteen to twenty people
were socializing. It was clearly reasonable for the jury to conclude
that Jones used the handgun, undoubtedly a deadly weapon, in a manner
likely to cause death or serious injury, and thus that he acted with
the requisite intent. Additional proof of intent is not required.’
That concludes the portion, ladies and gentlemen.
(R. at 1745-1746.)
Indiana Code § 34-36-1-6[4] addresses how a trial court is to proceed
when the jury requests information during its deliberation:
If, after the jury retires for deliberation; (1) there is a
disagreement among the jurors as to any part of the testimony; or (2)
the jury desires to be informed as to any point of law arising in the
case; the jury may request the officer to conduct them into court,
where the information required shall be given in the presence of, or
after notice to, the parties or the attorneys representing the
parties.
“[T]his statutory provision does not mandate that the trial court provide
information automatically and mechanically every time the jury requests it
... .” Foster v. State, 698 N.E.2d 1166, 1170 (Ind. 1998). Rather, it
entrusts to the trial court the discretion to determine whether the jury’s
inquiry reflects that (1) there is a disagreement among the jurors as to
any part of the testimony; or (2) the jury desires to be informed as to any
point of law arising in the case. Ind. Code § 34-36-1-6; Foster, at 1170.
If the trial court determines that a question falls into one of these two
categories, then the trial court must supply the requested information, “to
the extent that it consists of properly admitted testimony or documentary
evidence.” Id. at 1170 (citing Johnson v. State, 518 N.E.2d 1073, 1078
(Ind. 1988)).
Here, the jury requested that the trial court re-read the portion of
the prosecution’s closing argument that referred to Johnson. Neither party
contends that this inquiry reflected any disagreement within the jury. On
the other hand, at first blush it appears, and the trial court found, that
the jury’s question involved a point of law. But it was not a point of law
within the meaning of the statute and the trial court abused its discretion
by responding to the jury’s inquiry in the way that it did.
There are many points of law on which it is simply inappropriate for
a trial court to instruct a jury. See Hernandez v. State, 761 N.E.2d 845,
848 (Ind. 2002) (citing examples). And we have regularly held that the
mere fact that language has been used in an appellate opinion does not make
it appropriate for a jury instruction. See Dunlop v. State, 724 N.E.2d
592, 595 (Ind. 2000) (citing cases). While the prosecutor’s argument here
was of his view of what the law in this situation was, it was still
argument. Cf. Saylor v. State, 765 N.E.2d 535, 551 n. 7 (Ind. 2002)
(arguments of counsel are not evidence), petition for rehearing pending;
Poirier v. A.P. Green Servs., Inc., 754 N.E.2d 1007, 1011 (Ind. App. 2001)
(same). What the trial court did was to read to the jury not the law but
one of the parties’ arguments.[5] This was error.
Historically, this Court took the position that once jury
deliberations commence, the trial court should not give any additional
instructions. Bailey v. State, 669 N.E.2d 972, 975-76 (Ind. 1996); Lewis
v. State, 424 N.E.2d 107, 111 (1981). We have recently changed our rules
in this regard, allowing trial courts to “facilitate and assist jurors in
the deliberative process … in order to avoid mistrials.” Ind. Jury Rule 28
(eff. January 1, 2003); Tincher v. Davidson, 762 N.E.2d 1221, 1224 (Ind.
2002). But for the court itself to read from one party’s closing argument
in response to a jury inquiry goes well beyond the latitude granted by Jury
Rule 28 and Tincher v. Davidson.[6]
We will not overturn a defendant's conviction if a trial court’s error
was harmless. Ind. Trial Rule 61. Harmless error is defined as an error
that does not "affect the substantial rights of a party." Fleener v.
State, 656 N.E.2d 1140, 1141 (Ind.1995). Though the trial court’s
communication to the jury was error, we find it harmless under the
circumstances of this case. Any prejudice Defendant suffered was due to
the reading from Johnson, which the jury had already heard once (without
objection from Defendant). The fact that this information was cumulative
of information already received diminishes its prejudicial effect.
In addition, there was overwhelming evidence of Defendant’s guilt.
The evidence showed that when Defendant and his friends were turned away at
the party he stated, “we’ll be back and you better have the police here.”
(R. at 926-27.)
Mason also testified that Defendant stated that he was “going in the
hood to get his [gun].” (R .at 929.) In addition, Mason, Jerriel
Williams, and Abrams testified that they, along with Defendant, returned to
the Kappa house. Williams and Abrams testified that Defendant said “What’s
up” or “What’s up dawg” to a person standing at the back door of the Kappa
house. When the person at the back door closed the door, someone said,
“Let’s do this.” Moments later, shots were fired into the house. Williams
and Abrams testified that they knew they were about to shoot into a house
that was full of people. Williams testified that just before he heard
gunshots, he saw Defendant reach for something in his pants. Mason
testified that a few minutes after the shooting, Abrams told him that
Defendant was shooting a “Tech 9.”
Another witness, DeJuan McPhal, testified that Danny Hoskins told him
that Defendant had a “tech.” McPhal further testified that Defendant, Mike
Booty, Manley and Abrams were all shooting into the house. In his
testimony, McPhal described Defendant’s gun as being “like an uzi.” Mason
testified that Defendant later told him that they got rid of the guns.
We conclude that the fact that the jury had previously heard the
language from the Johnson opinion in combination with the overwhelming
evidence of Defendant’s guilt renders the trial court’s error harmless.
Conclusion
The Defendant’s convictions and sentence are affirmed.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur.
DICKSON, J., concurs in result.
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[1] Indiana Code § 35-42-2-2(c)(1) (1999).
[2] Id. §§ 35-41-5-2 and 35-42-1-1.
[3] Id. § 35-42-1-1.
[4] Indiana Code § 34-36-1-6 is a 1998 recodification of § 34-1-21-6.
[5] Because the trial court noted that the opinion read from was
authored by Chief Justice Shepard, the argument undoubtedly gained
particular force in the judge’s re-reading.
[6] Tincher indicates that a trial court could permit “counsel to
briefly address the jury’s question in short supplemental arguments to the
jury.” Tincher, 762 N.E.2d at 1224. We think a similar solution would
have been appropriate in this case.