ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
GREGORY L. LEWIS JAMES B. MARTIN
Deputy Public Defender ELLEN H. MEILAENDER
Indianapolis, Indiana Deputy Attorneys General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
ORVILLE LYNN MAJORS )
)
Appellant (Defendant), )
)
v. ) Cause No. 11S00-0004-CR-239
)
STATE OF INDIANA, )
)
Appellee (Plaintiff). )
________________________________________________________________________
APPEAL FROM THE CLAY CIRCUIT COURT
The Honorable Ernest E. Yelton, Judge
Cause No. 11C01-9802-CF-009
August 14, 2002
SHEPARD, Chief Justice
A jury found nurse Orville Lynn Majors guilty of murdering six
patients in his care. The trial court sentenced him to 360 years in
prison.
In this direct appeal, Majors focuses on multiple claims of jury
mismanagement and misconduct. We reject these claims and affirm the trial
court.
Facts and Procedural History
Majors worked as a licensed practical nurse at Vermillion County
Hospital. In March 1995, an investigation began into a series of
suspicious patient deaths at the Hospital. The investigation revealed that
Majors was present at the sudden and unexpected deaths of seven patients,
and that no one else was present at all seven. Investigators concluded
that Majors killed these patients by injecting them with potassium
chloride. The State charged Majors with seven counts of murder.
The trial was moved from Vermillion County and tried in Brazil by
Judge Ernest Yelton of the Clay Circuit Court, with jurors from Miami
County. The sequestered jury heard testimony for approximately six weeks
and deliberated more than three days. It found Majors guilty on six counts
and deadlocked on the seventh, resulting in a mistrial on that count. The
court sentenced Majors to consecutive terms of sixty years for each
conviction, for an aggregate term of 360 years.
After the trial, based on the affidavit of one juror, Majors filed a
motion to correct error, which the trial court denied.
I. The Judge’s Caution to a Juror
Near the end of the trial, Judge Yelton became aware that a juror was
making inappropriate facial expressions. He instructed a bailiff to
privately caution the juror to be more circumspect. Neither the
recipient nor other jurors whom she consulted knew who asked the judge to
send this message. Neither party may have been aware of either the concern
or the message. After the verdict the juror stated in an affidavit that
the message frightened and upset her.
Majors says this was an improper and prejudicial ex parte
communication, requiring reversal. We think the U.S. Supreme Court’s
analysis of such claims is helpful:
“[T]he mere occurrence of an ex parte conversation between a trial
judge and a juror does not constitute a deprivation of any
constitutional right. The defense has no constitutional right to be
present at every interaction between a judge and a juror . . . .
. . . [A] defendant has a due process right to be present at a
proceeding “whenever his presence has a relation, reasonably
substantial, to the ful[l]ness of his opportunity to defend against
the charge. . . . [T]he presence of a defendant is a condition of due
process to the extent that a fair and just hearing would be thwarted
by his absence, and to that extent only.
United States v. Gagnon, 470 U.S. 522, 526 (1985) (citations omitted). A
presumption of harm arises only when ex parte communications with jurors
relate to a substantive right of the defendant. Bruce v. State, 268 Ind.
180, 227, 375 N.E.2d 1042, 1068 (1978).
This relatively innocuous message in no way impaired Majors’ ability
to defend himself against the charges. Furthermore, “[c]ontrol and
management of the jury is an area generally committed to the trial court’s
discretion.” Norton v. State, 273 Ind. 635, 661, 408 N.E.2d 514, 531
(1980) (citation omitted). We find no error here.[1]
The Jurors’ After-Hours Activities
To warrant a new trial based on juror misconduct, the defendant must
show the misconduct was gross and probably harmed him. Griffin v. State,
754 N.E.2d at 901 (citing Lopez v. State, 527 N.E.2d 1119 (Ind. 1988)).
This determination lies within the trial court’s discretion. Id. Only
when the decision is clearly against the logic and effect of the facts and
circumstances will this Court find an abuse of discretion.[2] Hall v.
State, 760 N.E.2d 688, 689-90 (Ind. Ct. App. 2002).
A. The Two Beers. Majors requests a new trial because one juror
ordered and drank two beers that a bailiff delivered to the juror’s hotel
room on the evening after the third day of deliberations. (R. at 2848.)
This juror saw bailiffs “running up and down the hall filling orders” at
other jurors’ doors and assumed that other jurors drank alcohol also.[3]
(R. at 2849.)
Majors cites Schultz v. Valle, 464 N.E.2d 354 (Ind. Ct. App. 1984),
where the Indiana Court of Appeals held a verdict per se invalid because
jurors drank alcohol during deliberations. Schultz, however, presented
quite a different scene. There, some jurors consumed as many as three
beers each during an hour-and-a-half dinner break, then resumed
deliberations. Id. at 355. Here, the jury had adjourned for the day and
did not resume deliberations until 8:00 the next morning. (R. at 3237.)
While allowing jurors to consume alcohol during deliberations would
certainly be ill-advised, the question is not whether alcohol touched any
juror’s lips during the entire time between the judge’s charge to the jury
and the jury’s rendering of verdicts. Rather, the focus is whether the
jury was free from the influence during actual deliberations. A full night
passed after this juror drank her two beers, and Majors does not claim that
she or any other juror showed any effects related to alcohol consumption
when deliberations resumed the next morning. He has therefore not shown
either gross misconduct or probable harm.
B. The Fishing Expeditions. Majors next claims that jurors were
subtly influenced to favor the State due to their fraternization with law
enforcement officers at two picnics hosted by the Clay County sheriff.
When the trial began and the jury was sequestered for what looked to be a
rather long haul, Judge Yelton told the jurors that they could request
recreational activities. (R. at 3203, 3207.) During the second week of
trial, they asked if they could go fishing some evening. (R. at 3209.)
A local podiatrist agreed to allow the use of his property, which was
adjacent to that of Clay County’s sheriff. (R. at 2856, 2859, 3209.) The
sheriff was a veteran officer who was “well versed on appropriate juror
exposure” and had no involvement in the Majors investigation or
prosecution. (R. at 3210.) All the jurors along with the doctor, the
sheriff and his wife and young son, several Indiana State Police officers,
and two bailiffs participated in the outing, which was held the third week
of trial. (R. at 2844, 2858, 2971.)
The officers and bailiffs transported the jurors to the picnic,
provided security, and performed duties such as grilling food. (R. at 3211-
12.) None of the officers at the cookout were involved with the
investigation of Majors in any capacity. (R. at 3204, 3210, 3212.) The
event was so well received that a similar picnic was held two weeks later.
One juror had disclosed during voir dire that her sixty-fifth birthday
was approaching. Her birthday fell on the day of the first outing, and the
judge arranged for delivery of a cake to honor the occasion. At the end of
the evening, the sheriff’s wife gave this juror a bottle or two of white
zinfandel wine that may have been left over from the party supplies.
Majors offers no support for his speculation that the jurors would
favor testifying police officers because they were friendly with their
security detail. Moreover, sequestered jurors whose activities are
confined in the interests of a fair trial are necessarily placed under the
care and custody of a court’s bailiff and, where the length of a trial or
other logistics necessitate, additional personnel such as law enforcement
officers. If we were to view any small kindnesses as currying favor on
behalf of the State, jurors’ freedom would be even more restricted, which
could easily produce a resentment that would benefit neither party.
Although friendships may have developed between the security officers
and the jurors here, nothing in the record indicates that Majors suffered
prejudice as a result of the two outings or the modest birthday gift.[4]
The trial court did not abuse its discretion in finding that the jury’s
verdict was not influenced by these events.
C. Comments About the Attorneys. Majors next claims the jury
improperly discussed aspects of the trial prior to deliberations. He
offers a juror affidavit indicating that jurors made a few isolated
comments during trial about physical characteristics of both State and
defense attorneys, and about the way a defense attorney questioned
witnesses. (R. at 2852.) He does not claim that the trial judge was aware
of these alleged comments. (See Appellant’s Br. at 58-62.)
This constitutes an attempt to impeach the verdict, impermissible
under Ind. Evidence Rule 606(b).[5]
Conclusion. The trial court did not abuse its discretion by rejecting
Majors’ claims of juror misconduct.
The Request to Depose Jurors
Majors next asks that we remand his case and order depositions of the
jurors, the alternates, and the bailiffs. He claims the right to explore
further his allegations of juror misconduct by deposing jurors who spoke to
the State after the trial but chose not to speak with defense counsel. He
cites the principle that absent a showing of no legitimate defense interest
or of a paramount State’s interest, a criminal defendant has the right to
depose State witnesses. Murphy v. State, 265 Ind. 116, 352 N.E.2d 479
(1976).
Juror depositions are a very different matter, however, from witness
depositions. We recently emphasized the public interest in discouraging
post-trial verdict impeachment via affidavit:
. . . [Post-verdict] juror affidavits could defeat the jury’s solemn
acts under oath, open the door to post-trial jury tampering, and allow
dissatisfied jurors to destroy a verdict after assenting.
Moreover, if impeachment were allowed, “[t]he sanctity of verdicts
would [] be diminished and no verdict could ever be final. Jurymen
would forever be harassed.” For these reasons we have historically
been reluctant to open the door to a “contest of affidavits and
counter-affidavits and arguments and re-arguments as to why and how a
certain verdict was reached. Such an unsettled state of affairs would
be a disservice to the parties litigant and an unconscionable burden
upon citizens who serve on juries.”
Griffin, 754 N.E.2d at 902 (citing, inter alia, Taylor v. Garnett, 110 Ind.
287, 11 N.E. 309 (1887)). The same concerns apply to post-verdict juror
depositions.
The federal courts take a similar position. See McDonald v. Pless,
238 U.S. 264, 267-68 (1915) (denying defendant’s request for post-verdict
discovery); United States v. Riley, 544 F.2d 237, 242 (5th Cir. 1976)
(“Historically, interrogations of jurors have not been favored by federal
courts except where there is some showing of illegal or prejudicial
intrusion into the jury process.”).
Majors seeks to corroborate allegations by one juror whose
credibility, as we noted above, is dubious.[6] In response to these
allegations, the State obtained affidavits from all eleven other jurors and
three alternates. None offered any evidence of alcohol consumption during
deliberations, improper prejudicial information, or outside influence,
which are the only subjects to which jurors may testify under Evid. R.
606(b), and many denied any such activity.
In sum, Majors has not demonstrated a defense interest sufficient to
overcome the interests of finality of verdicts and avoidance of juror
harassment. The trial court did not err in denying the request for
depositions.
IV. The Witness’s Polygraph
During the investigation, police interviewed Majors’ former roommate,
Andrew Harris. During Harris’ cross-examination, defense counsel elicited
the fact that Harris had secured an immunity agreement. With the court’s
permission, the State then rehabilitated Harris on re-direct with testimony
that the immunity agreement was a prerequisite to Harris’ agreement to
submit to a polygraph exam that ultimately indicated that he spoke
truthfully in denying that he aided or assisted in any unnatural deaths at
the Hospital. Majors’ attorney objected to the testimony.[7]
Admission of polygraph evidence, including the mere fact of a
polygraph examination, generally requires a stipulation by both parties.
See Albrecht v. State, 737 N.E.2d 719, 725 (Ind. 2000), reh’g denied; Swan
v. State, 462 N.E.2d 68, 71 (Ind. 1984) (mention that witness has taken
polygraph examination not permitted absent some form of waiver). We
discourage the admission of polygraph evidence because of the procedure’s
unreliability combined with its likelihood of unduly influencing a jury’s
decision. Smith v. State, 547 N.E.2d 817, 820 (Ind. 1989); see also Ben-
Yisrayl v. State, 753 N.E.2d 649, 653 (Ind. 2001), cert. denied, 122 S. Ct.
2382 (2002).
In some narrow circumstances, however, a party may open the door to
admission of polygraph evidence. See, e.g., Willoughby v. State, 552
N.E.2d 462, 469 (Ind. 1990) (defendant who misleads jury as to his
truthfulness by referring to polygraph examination opens door to admission
of results); see also United States v. Lynn, 856 F.2d 430, 433 (1st Cir.
1988) (polygraph results admissible for reasons other than proving truth of
assertions made during examination).
Here, after the defense elicited Harris’ testimony about his immunity
agreement, the State sought to rebut the logical inference that Harris was
somehow implicated in the crimes. The State could only do this by
demonstrating that the immunity was a prerequisite to a polygraph exam and
that the exam result was consistent with Harris’s denial of personal
involvement in the crimes.[8]
Under somewhat different circumstances, the First Circuit concluded in
Lynn that evidence that a key prosecution witness submitted to a polygraph
as a condition of his plea agreement was admissible, as was the fact that
some of his answers were “inconclusive.” Id. at 432-33. We need not
embrace this holding to conclude that once the defense had taken out after
the witness for testifying under a grant of immunity, the trial court had
the discretion to permit the jury to understand the circumstances of that
immunity.
Moreover, even if this case did not fall within an exception to the
general rule, the admission of polygraph evidence is subject to harmless
error analysis. See Austin v. State, 262 Ind. 529, 533, 319 N.E.2d 130,
133 (1974), cert. denied, 421 U.S. 1012 (1975); United States v. Whitt, 718
F.2d 1494, 1502 (10th Cir. 1983). The probable impact of the polygraph
reference upon the verdict is of prime importance. Reese v. State, 452
N.E.2d 936, 940 (Ind. 1983).
Here, the probable impact of the polygraph reference was minimal.
Harris testified that Majors often commented that the elderly “should be
gassed,” (R. at 6108), but another witness provided more damaging testimony
that Majors admitted that he killed patients at the hospital using
potassium chloride, (R. at 8732). Harris also testified that he saw a vial
of potassium chloride in the garage he shared with Majors and one in
Majors’ car, (R. at 6100-01), but other witnesses confirmed that the police
found such bottles during a search of Majors’ residence and of a van he
drove, (R. at 4585-87, 4600-02, 4694-710, 4741-48, 5740-56, 6094). The
most damning evidence against Majors came from medical staff, experts, and
victims’ family members, who together established that six victims died
unnatural deaths due to potassium chloride poisoning and that Majors was
the only common denominator.
Viewing the evidence as a whole, the polygraph evidence likely had
little effect on the jury and any error in its admission was harmless.
V. Cumulative Error
Majors argues that even if the individual errors he claims were not
sufficiently prejudicial standing alone to vacate the verdicts, the
cumulative effect of all errors deprived him of his right to a fair trial
before an impartial jury. Because we have found no errors, cumulative
effect analysis is inapplicable.
Conclusion
We affirm the judgment of the trial court.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] As to the juror’s statements concerning how this message upset her, we
recently adopted the federal approach and will consider juror affidavits to
the extent that they assert that deliberations were tainted by improper
information or influence. Griffin v. State, 754 N.E.2d 899, 902-03 (Ind.
2001). We disregard statements about the effect of that information or
influence on the juror’s decision, however, and instead make an independent
determination of the likely effect of the prejudicial material, with the
goal of avoiding post-verdict volleys of juror affidavits that purport to
re-create individual thought processes. Id.
Here (assuming for the sake of argument that this message qualified
as an outside influence), a discreet request that a juror not betray her
reactions so openly, which was not attributed to either the State or
defense, did not prejudice Majors.
[2] Majors concludes several of his arguments with the general assertion
that he was denied his constitutional right to a fair trial by an impartial
jury. Although he cites to U.S. Constitution amendments, he provides no
cogent argument as to how these rights were violated and has thus waived
these claims under Ind. Appellate Rule 46(A)(8).
[3] There is reason for skepticism about this juror’s credibility. On
December 14, 1999, she swore under penalty of perjury that “I know that the
wife of our foreman . . . is writing a book about the trial.” (R. at 2850,
2854.) She also swore that after the trial she received a formal
invitation saying “that [the foreman’s wife] was writing a book about the
case and that I was invited to attend a gathering of the jurors to discuss
the case.” (R. at 2851.) On February 1, 2000, she conceded in a
supplemental affidavit, “My impression based on the comments being made by
the other jurors was that [the foreman’s wife] was writing a book about the
case. Whether a book will actually be written or not, I do not know.” (R.
at 3169.) She also acknowledged, “I did not read the invitation . . . very
closely before I threw it in the trash. I assumed the invitation was
directed toward the writing of the book . . . .” (R. at 3169.)
We note also that the State obtained affidavits from all eleven other
jurors, none of whom confirmed that any jurors drank alcohol during
deliberations and most of whom positively said that they saw no drinking.
(R. at 2941, 2947, 2953, 2955, 2957, 2959, 2961, 2963, 2965.) One juror
believed that all the other orders that evening were for soft drinks. (R.
at 2965.)
[4] Majors also complains that after the verdict, one of the state troopers
gave Indiana State Police keychains to the jurors. (Appellant’s Br. at
55.) This is irrelevant. In light of the timing, it could not have
influenced the verdict.
[5] Rule 606(b) says:
Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the
validity of a verdict or indictment, a juror may not testify as to any
matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or any other juror’s
mind or emotions as influencing the juror to assent to or dissent from
the verdict or indictment or concerning the juror’s mental processes in
connection therewith, except that a juror may testify (1) to drug or
alcohol use by any juror, (2) on the question of whether extraneous
prejudicial information was improperly brought to the jury’s attention or
(3) whether any outside influence was improperly brought to bear upon any
juror. A juror’s affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded from
testifying may not be received for these purposes.
[6] Majors also later submitted affidavits from two alternate jurors, (R.
at 3175-81), but these do nothing to advance his cause. Neither provides
any evidence of juror alcohol consumption during deliberations. (Id.)
Their statements concerning the message, the picnics, and the gift of wine
are irrelevant, as explained above, because these activities were not
prejudicial.
[7] This objection occurred after both the reference to the polygraph and
Harris’s testimony that the test verified his assertion that he had not
aided or assisted in the deaths. The State argues that the objection came
too late and the issue was therefore waived for appeal, quoting Lay v.
State, 659 N.E.2d 1005, 1013 (Ind. 1995) (defendant “must object or move
for mistrial at the first mention of a polygraph examination”).
(Appellee’s Br. at 41 n.4.)
Where, as here, the challenged ruling arises from a recorded bench
conference held immediately before the polygraph testimony, it would be an
overly mechanistic application of this rule to require a repetitious
objection in the jury’s presence. Here, however, the defense did not
challenge the admissibility of the polygraph evidence during the bench
conference, but rather sought to avoid its admission by offering to
withdraw the question about the immunity agreement. The State is therefore
correct that we could deem this issue waived for appeal.
[8] Majors argues that the State first impeached Harris on direct, by
asking where one of the interviews took place, to which Harris answered
that the meeting was at his attorney’s office. (R. at 6098-99.) Because
we find in the alternative that the polygraph evidence was at worst
harmless error, we need not address who opened the door to what.