ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Caroline B. Briggs Jeffrey Modisett
Lafayette, Indiana Attorney General of Indiana
Janet Brown Mallett
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
TIM GODBY, )
Defendant-Appellant, )
)
v. ) 33S00-9807-CR-416
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
________________________________________________
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable John Kellam
Cause No. 33C01-9512-CF-036
________________________________________________
On Direct Appeal
October 5, 2000
DICKSON, Justice
The defendant, Tim L. Godby, was convicted of murder[1] for the
December 9, 1995 slaying of Jeffrey A. Asberry in New Castle, Indiana. We
find that this appeal presents three issues: (1) admissibility of a taped
conversation between the defendant and police; (2) propriety of juror
conduct and court responses to jury questions; and (3) newly discovered
evidence.
Admissibility of Taped Conversation
The defendant contends that the trial court erroneously allowed into
evidence a tape recording of his telephone conversations with police, made
without Miranda warnings, while his residence was under police surveillance
and a SWAT team was being organized. When this evidence was offered at
trial, the defense declared: "Judge, the defendant has no objections."
Record at 1683.
The defendant now argues that his objections were presented during
hearings on a motion to suppress and motion in limine and at bench
conferences during the trial. At the point during the trial where the
defendant argues that the trial court concluded its ruling[2], the trial
court stated:
So, if the State intends to use it, I feel that the entire statement
should come in so that the jury hears it all, then decides what they
want to make of it. I've considered Fifth Amendment issues, although
they weren't formally raised. It's – from my viewpoint in that
regard, this is not a violation of the Defendant's Fifth Amendment
right. In other words, the question being whether or not he needed to
be Mirandized by Brown the minute the conversation started for
anything else to be admissible. Two reasons, one, there was not a
custodial interrogation as required by Escobedo, and secondly, the
text of this is not an interrogation, period. . . . So, I would say
that the statement comes in.
Record at 1200-01. Immediately after making this statement, at
approximately 7:05 PM on Tuesday, April 15, 1997, the trial court recessed
for the day. It was not until the following week, on Monday, April 21,
1997, that Exhibit 41, the tape recording of the defendant's telephone
statements, was offered and received in evidence without objection.
A ruling on a motion in limine does not determine the ultimate
admissibility of evidence; that determination must be made by the trial
court in the context of the trial itself. Clausen v. State, 622 N.E.2d
925, 927 (Ind. 1993). The purpose of the requirement for a timely
objection is to alert the trial court and to permit prevention or immediate
correction of an error without waste of time and effort. Candler v. State,
363 N.E.2d 1233, 1240 (Ind. 1977). A party's failure to make a
contemporaneous objection to evidence offered at trial precludes later
appellate review of its admissibility. Wise v. State, 719 N.E.2d 1192,
1199 (Ind. 1999). Regardless of the nature and content of the issues
discussed at court hearings and bench conferences in this case, we find
that the defendant's express disclaimer of any objection to the exhibit
precludes our consideration of his claim on appellate review.[3]
Jury Conduct and Questions
The defendant seeks a new trial on grounds that the jury deliberations
as a whole deprived him of the right to trial by jury and to be present at
critical stages of the proceeding. He contends that two jurors failed to
fully disclose their relationships to the victim's family and potential
witnesses, that they infected other jurors with personal knowledge outside
the evidence, and that the court improperly responded to juror questions
during deliberations.
The defendant urges that implied bias should be found as to one of the
jurors, William Dawes. The defendant argues that Dawes failed during voir
dire to adequately disclose his knowledge of the victim's family, that
Dawes subsequently lacked complete candor when he did disclose his
knowledge, and that Dawes disclosed his personal knowledge to other jurors
contrary to a specific court order.
During voir dire, the trial judge inquired whether prospective jurors
knew persons listed as expected witnesses in the case. The witness list
included several persons with the same last name as the deceased victim,
Jeff Asberry. Jurors Dawes and Harry Councellor did not respond in the
affirmative. Thereafter, during a lunch break within two days after the
commencement of evidence, the bailiff advised that Dawes remained in the
jury room and had requested to speak with the judge. The defendant had
been taken to the jail for lunch, but his attorneys and the prosecutor were
still available and agreed that all counsel would accompany the judge to
confer with the juror. Dawes informed the judge and counsel that just that
morning he recognized a male person, sitting with the decedent's family in
the courtroom, as someone he had seen at the Chrysler plant, his place of
employment. Dawes advised that he was not influenced by his recognition,
was able to continue as a juror, and could render a fair and impartial
verdict based solely upon the law and the evidence. Supplemental Record at
46. The defendant's attorneys were given an opportunity to question Dawes
at this time. The judge then instructed Dawes not to discuss with other
jurors the fact that he had been questioned or the fact of his knowledge of
a possible member of the victim's family. Id. Upon the defendant's
return from jail, the trial court requested defense counsel to discuss the
matter with the defendant and to advise the court if the defense desired to
make a record in open court regarding Dawes's revelations. After the
defendant and his attorneys discussed the matter, the defense told the
trial court that there was no need to bring Dawes into the courtroom for
the purpose of making any record.
In support of his motion to correct error following the trial, the
defendant presented the testimony of another juror, Joe Smith, to the
effect that some jurors stated to other jurors in the jury room that they
"knew of or knew" members of the Asberry family. Record at 2835. Smith
testified that juror Councellor (a retired school teacher) "knew a lot more
about the families and, that what we, you know, we knew he could tell us a
lot more about the family, the troubles they been into and everything."
Record at 2836. Smith also stated that juror Dawes had seemed afraid of or
worried about "the Asberrys that worked at Chrysler, 'cause he worked . . .
in there with them." Id.
The defendant argues that he was deprived of his right to a fair jury
trial by the failure of Dawes and Councellor to disclose their knowledge
and relationship with the victim's family, and by Dawes speaking about it
to other jurors in violation of the judge's instruction. The State
acknowledges that the right to a jury trial includes "a fair trial by a
panel of impartial, indifferent jurors." Brief of Appellee at 6 (citing
Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965)).
The failure of a juror to disclose a relationship to one of the parties may
entitle the prejudiced party to a new trial. See Haak v. State, 417 N.E.2d
321, 326 (Ind. 1981) (juror's husband was seeking position in prosecutor's
office); Barnes v. State, 263 Ind. 320, 330 N.E.2d 743 (Ind. 1975) (juror
denied having friends or relatives on prosecutor's staff while married to
second cousin of member of prosecutor's staff); Block v. State, 100 Ind.
357 (1885) (juror was a deputy prosecutor). To warrant a new trial upon a
claim of juror misconduct, the defendant must show that the misconduct was
gross and probably harmed the defendant.[4] Carr v. State, 728 N.E.2d 125,
131 (Ind. 2000). This determination is a matter within the trial court's
discretion. Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988).
Here, when first aware that juror Dawes knew or knew of one or more
members of the Asberry family, the trial court immediately questioned Dawes
in the presence of defense counsel and the prosecutor, but out of the
presence of the other jurors. After affording counsel an opportunity also
to question Dawes, and in the absence of any objection or challenge from
defense, the trial court ruled that Dawes could continue to serve as a
juror. This determination was not an abuse of discretion.
As to the claims of juror bias and misconduct by the alleged exposure
of the other jurors to extrinsic prejudicial information from jurors Dawes
and Councellor, we decline to reverse. Considering the totality of the
evidence presented, and particularly the non-specific nature of the
information allegedly known by Dawes and Councellor and communicated by
these jurors to other jurors, and the lack of evidence that the alleged
comments generally referring to Asberry families could reasonably have been
understood by other jurors to refer to the victim or his immediate family,
we conclude that there is no showing that the alleged misconduct was gross
nor that it probably harmed the defendant. The trial court did not abuse
its discretion in denying the defendant's motion to correct error as to
juror bias or misconduct. The court's ruling on this issue is not clearly
erroneous.
The defendant also claims that his right to a jury trial was infringed
by the court's failure to respond to jury questions during deliberations in
accordance with statutory requirements. He further alleges that, by
failing to respond to one of the jury notes, which stated that the jury was
deadlocked, the court improperly implied to the jury that they would be
required to deliberate until a verdict was reached.
During its deliberations, the jury made requests in the form of notes
to the trial judge. The first note requested to review certain exhibits
and transcripts. Record at 261. The judge and the parties decided to send
a preprinted form asking whether the jury disagreed about the evidence they
requested to see. Record at 286. The jury returned the form checked "no"
and made an additional request for different exhibits and the chance to
listen to the tapes more closely. Record at 262. After consultation and
agreement of the parties, the judge responded, "I am, as a matter of law,
precluded from granting your request." Record at 263. A subsequent jury
note advised: "We have a 10 to 2 deadlock to convict for murder. We have a
2 to 10 deadlock to convict for involuntary manslaughter. The disagreement
is over intent to kill or knowingly killing." Record at 264. The court
presented the jury's statement to the parties' counsel who agreed with the
trial court that no response was required. The jury later asked "Can we
get a legal definition of knowingly or intentional." Record at 265. The
judge, again with the parties' agreement, responded in writing: "Please
read your instructions for these definitions." Id. Since the defendant
agreed to these responses at trial, he may not now claim error on appeal.
Pendergrass v. State, 702 N.E.2d 716, 720 (Ind. 1998).
The defendant also claims that his right to be present at all critical
stages of his trial was violated when juror Dawes was privately interviewed
by the trial court and counsel while the defendant was at lunch. In
addition, he seeks reversal because of the absence of any express notation
in the record that he was present when his counsel, the prosecutor, and the
trial court resolved how to respond to the jury's note advising that they
were deadlocked.
In Ridley v. State, 690 N.E.2d 177, 180 (Ind. 1997), this Court
addressed similar claims under the Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Section 13 of the Indiana
Constitution. Applying the analyses in Ridley, we find that the
defendant's alleged absences were not related to the presentation of
witnesses or evidence, and were essentially during non-substantive
proceedings unrelated to the defendant's right of cross examination. The
defendant has not demonstrated that any of these proceedings were critical
to the outcome of the trial or that his presence would have contributed to
the fairness of the procedure. None of the proceedings at issue occurred
in the presence of the assembled jury or at any other critical proceeding.
Notwithstanding the defendant's absence at lunch during the Dawes
interview, his defense lawyers discussed the incident with him immediately
upon his return and thereafter declined the trial court's invitation to
make any further record or objection. We find no error on this issue.
Newly Discovered Evidence
The defendant contends that the trial court erred in denying his
motion to correct error asserting that a new trial was warranted because of
new evidence that had surfaced since the trial.
To obtain a new trial based on newly discovered evidence, a party must
establish that: (1) the evidence was not available at trial; (2) it is
material and relevant; (3) it is not cumulative; (4) it is not merely
impeaching; (5) it is not privileged or incompetent; (6) due diligence was
used to discover it in time for trial; (7) the evidence is worthy of
credit; (8) it can be produced upon a retrial of the case; and (9) it will
probably produce a different result. State v. McCraney, 719 N.E.2d 1187,
1190 (Ind. 1999); Fox v. State, 568 N.E.2d 1006, 1007 (Ind.1991). The
moving party has the burden of showing that the newly discovered evidence
meets all nine prerequisites for a new trial. Allen v. State, 716 N.E.2d
449, 456 (Ind. 1999). The denial of a motion predicated on newly
discovered evidence is a discretionary ruling and is reviewed
deferentially. McIntyre v. State, 717 N.E.2d 114, 128 (Ind. 1999). Our
appellate review is guided by Indiana Trial Rule 52(A) which provides that
the trial court's findings and judgment shall not be set aside unless
clearly erroneous, and due regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses.
In his motion to correct error, the defendant asserted a claim of
newly discovered evidence that one of the State's trial witnesses was
mentally disabled and incompetent, and urged that this information would
have changed the outcome of the trial. After extensive evidentiary
hearings, the trial court denied the motion, finding that the allegedly
impaired witness, though nervous and uneasy about testifying, gave logical
responses, which were in many respects consistent with the testimony of
other witnesses. The trial court found that, even if the records
purporting to show that the witness had been determined to be mentally
disabled at some prior time were admitted as evidence, "the effect if any,
would relate only to the credibility of [the witness] and constitute only a
portion of those matters which jurors might have taken into consideration
in determining [the witness's] credibility." Record at 718-19. Having
found unproven one of the required elements (that it is not merely
impeaching), the trial court denied the defendant's claim of newly
discovered evidence without addressing the other required elements. The
defendant has not shown that the trial court's finding was clearly
erroneous, nor has he shown that all the other eight elements were
unequivocally established.
At the commencement of evidence on the motion to correct error, the
defendant was permitted to orally amend the motion to add a further claim
that Melissa English's information constituted newly discovered evidence.
The trial court's order denying the motion to correct error did not
expressly address this claim of newly discovered evidence. When a motion
to correct error is denied, absent a request by the parties, there is no
requirement that the trial court enter findings of fact. Ind. Trial Rule
52(A) & 59(J). "[A] general judgment will control as to the issues upon
which there are no findings." Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind.
1997).
The defendant claims that although Melissa English did not see the
shooting, she saw another person run from the scene after the shooting and
that while she did not see the fleeing person clearly, she knew the fleeing
person was not the defendant because he was trying to break into a truck at
the time. While this evidence addresses several of the nine required
elements, the defendant has not shown that the record establishes the
seventh and ninth elements─that her testimony was worthy of credit and that
it would probably produce a different result. English had in the past been
convicted of forgery, and she only came forward after she spoke with the
defendant's mother about his conviction. The defendant has not established
that the judgment of the trial court to deny his claim of newly discovered
evidence was clearly erroneous. We decline to find error in the trial
court's denial of the defendant's motion to correct error.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-42-1-1.
[2] Brief of Appellant at 14.
[3] The defendant argues that the absence of a full record of the
colloquy at the bench conferences denied his right to appeal. This claim
is of no avail, however, because we have determined that the content of
these conferences is irrelevant in view of his express "no objections" to
the tape recording.
[4] We note, however, that Indiana adheres to the common law rule that
a verdict may not
be impeached by evidence from jurors who returned it except when evidence
shows that the jury was exposed to improper extrinsic material during its
deliberation. See Butler v. State, 622 N.E.2d 1035, 1040 (Ind. Ct. App.
1993). Indiana Evidence Rule 606(b) restrains jurors from testifying "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" except as to drug or alcohol use
by any juror or as to outside influence or extraneous prejudicial
information improperly brought to the jury's attention.