dissenting.
I must dissent from the majority in its affirmance of the trial court's judgment. The trial court committed reversible error in the manner of communication with the jury during deliberations.
We must first examine an incident during trial concerning certain items of evidence which Defendant Mitchell offered into evidence. Mitchell's exhibits 14, 15, 16, and 17 were copies of folders and documents from the Richmond Police Department investigation files, and a partial transcript of grand jury testimony on the murder of James and Bonnie Thomas. The State seized these items from Mitchell's possession. Mitchell offered exhibits 14, 15, 16, and 17 into evidence and the State did not object. The court then admitted these exhibits into evidence; defense counsel then moved for permission to pass these exhibits to the jury for their observation. Again the State did not object,. This occurred at the end of the day's proceedings. *505When the trial continued the next morning, the trial judge sua sponte gave the jury a rather lengthy limiting instruction, explaining that the content of these exhibits was hearsay and they were not to be considered as evidence, but merely considered for the limited purpose of determining whether the police seized them from Mitchell's posses sion. Mitchell objected to this limiting instruction, claiming once the exhibits had been admitted into evidence without objection they became substantive evidence for all purposes and were not subject to such limitations. Over Mitchell's objections, the court, on three occasions, gave this limiting instruction as the jurors viewed the exhib. its. i
. , Mitchell correctly contends that where incompetent evidence, hearsay or other- . : PW , Ut; wise, is admitted without objection, its PO bative value is for the trier of fact to determine, notwithstanding the fact that evidence might have been excluded if 2 proper and timely objection had been made. Dayton Walther Corp. v. Caldwell (1980), 273 Ind. 191, 200, 402 N.E.2d 1252, 1257; Kern v. State (1957), 237 Ind. 144, 147-48, 144 N.E.2d 705, 706-07. Although Mitchell does not raise the question of the prejfudite occasioned him due to the court's limiting the probative value of these exhibits, the court's action becomes significant in the context in which the court used these exhibits, and others, at the time of the jury's deliberations.
Although the jury was permitted to take the court's final instructions to the jury room, none of the exhibits were sent at the beginning of deliberations. One of these final instructions taken in concerned Mitch ell's exhibits 14, 15, 16, and 17, about which the court again limited the probative weight given those exhibits. In any event, during the course of deliberations, the court received the following request from the jury:
We need please pictures of one, bodies on couch, all; two, cigarette burns on couch; three, burn on Bonnie's hip; four, picture of feet; five, Western Union receipt showing money sent; six, clipboard; seven, deposition of Deliucio.
The trial judge convened with counsel and had a hearing on the matter. Mitchell objected to sending any exhibits to the jury. The State had no objection to complying with the request but proposed the court send all exhibits except the deposition and statement, and exhibits 14, 15, 16, and 17. The judge took the matter under advisement temporarily and later reconvened With counsel, heard counsel restate their Positions as they had before, and decided at that time he should not give the DeLucio deposition to the jury, Exercising his dis-9retion, in view of the volume of the exhibits, he stated he would not give any to them at that time. The judge then sent to the jury this response: "You cannot receive the items you request." Later, the jury sent a message through the bailiff that they feared they were hopelessly dead-joked and doubted they could reach a ver-qiop The court again convened counsel with the same results. The defense object: aq ;, any exhibit going to the jury room ang the State proposed all exhibits go except the statement, the deposition, and ex-pipits 14, 15, 16, and 17. The court determined it would not respond to the jury at this time, Still later the court received another note from the jury indicating: "We have reviewed testimony in evidence again. We cannot come to a unanimous decision, we are deadlocked."
The court again inquired of counsel as to their positions regarding sending exhibits to the jury room. Mitchell again, for the third time, indicated his objection. The State indicated it would agree to the exhibits going back to the jury. The trial judge then indicated he would send the jury all exhibits except the statement,- Delucio's deposition, and exhibits 14, 15, 16, and 17. In doing so, he called the jury into open court and gave them the following instruction:
I have received your communication, Mr. Foreman, concerning the status of your deliberations, and having considered it its the opinion of the court that it might assist you in your deliberations if you were to receive certain of the exhibits which have been admitted as evidence in this case. So what I will do is send *506certain of these exhibits back with you and ask that you continue your deliberations further in the hope that you might be able to reach a unanimous verdict.
After the exhibits were sent to the jury with the judge's comments, the jury returned with a guilty verdict.
The effect of the trial judge's actions in this case, as Mitchell aptly contends, created the same impression on the jury found objectionable in the "Allen" charge. Allen v. United States (1896), 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528; Lewis v. State (1981), Ind., 424 N.E.2d 107, The Aller charge had the effect of telling the jury it was imperative they reach a verdict to resolve the pending matter and prevent incurring further time and expense in trying the cause all over again. The Allen charge has been rejected as improper and oppressive to a jury in Lewis, 424 N.E.2d at 109-12, and succeeding cases in this jurisdiction and many others. As in Allen, in this case the harm was in the judge telling the jury they must reach a verdict when, in fact, there was no such compulsion. In feeling they were mandated to do so, they were compelled to compromise their determination of facts and conclusions. Such a compromise may very well have resulted in prejudice to Mitchell. There is no way of knowing where and how many of such compromises the jury might have made, and what effect they had on the guilty verdict to the extent that reversal and a new trial are justified.
In Lewis, this Court held the procedure to follow in responding to the problem we are presented with is for the court to call the jury back into open court and, in the presence of all the parties and their counsel if they desire to be there, reread all instructions given them prior to their deliberations, without emphasis on any of them and without further comment. See also Crowdus v. State (1982), Ind., 431 N.E.2d 796, 798; Cornett v. State (1982), Ind., 436 N.E.2d 765, 766. That specific issue is not presented here since the final instructions were read to the jury in open court and sent back to the jury room with them. The situation here is that the jury asked that certain exhibits be furnished to aid them in their deliberations, and indicated they were seriously deadlocked. It is significant the jury decided they needed to examine these particular exhibits to help resolve the conflicts in their deliberations.
Clearly, it is within the discretion of the trial court to furnish exhibits to the jury when so requested. Roland v. State (1986), Ind., 501 N.E.2d 1034, 1040. This rule was established and well stated in Thomas v. State (1972), 259 Ind. 537, 289 N.E.2d 508, in which this Court held the trial court may in its discretion permit the jury to take an exhibit into the jury room during deliberations considering whether the exhibit will aid the jury in proper consideration of the case, whether either party will be prejudiced, and whether the exhibit may be subjected to improper use by the jury. See also Hughes v. State (1987), Ind.App., 508 N.E.2d 1289, 1304; State v. Harden (1986), Ind., 496 N.E.2d 35, 36-37; Torres v. State (1982), Ind., 442 N.E.2d 1021, 1025-26; Jackson v. State (1980), 274 Ind. 297, 302-03, 411 N.E.2d 609, 613. It is doubtful the trial court in the instant case would have been found to have abused its discretion had it furnished the jury the particular exhibits they requested. However, the court refused to furnish the jury the specific exhibits they requested.
Finally, after two reports from the jury that it was hopelessly deadlocked and would be unable to reach a verdict, the court decided, over Mitchell's objections, and at the State's suggestion, to send certain exhibits to the jury which the court selected as those which might aid the jury. Although the exhibits sent to the jury apparently included the ones they specifically requested, they did not include all of the exhibits in the case, and specifically did not include Mitchell's own exhibits 14, 15, 16, and 17.
This constituted reversible error in that the court placed undue emphasis on certain exhibits to the exclusion of others,. The court went on to instruct the jury as follows: "It might assist you in your deliberations if you were to receive certain of the exhibits which have been admitted as evi*507dence in this case." These certain exhibits enabled the jury to break its deadlock and bring in a guilty verdict against Mitchell. In view of these circumstances, I would reverse the trial court judgment and order a new trial for Mitchell.