ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John D. Clouse Karen M. Freeman-Wilson
Evansville, Indiana Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
James David Terrell, ) ) Appellant (Defendant Below ), ) No. 82S04-0104-CR-200 ) in the Supreme Court v. ) ) No. 82A04-9912-CR-537 STATE OF INDIANA, ) in the Court of Appeals ) Appellee (Plaintiff Below ). )
April 11, 2001
On June 3, 1999, a juror from Terrells trial contacted the judge who
had presided, Hon. J. Douglas Knight, asserting among other things that both she
and her husband were members of the Mafia and that she was terrified
for her life. She gave the judge three documents, indicating that her
husband replaced John Gotti as head of a New York crime family and
had killed over sixty people. When the juror again met with the
judge on June 22, 1999, Judge Knight told her that he contacted the
FBI and the Deputy Coroner and that neither verified her information.
Judge Knight documented their conversations in a sealed memorandum and provided a copy
to both Terrell and the prosecutor. On July 14, 1999, at a
time when sentencing and judgment had not yet occurred, Terrell filed a motion
to set aside the jurys verdict and for mistrial based upon this newly
discovered evidence. Judge Knight then recused, and the case was reassigned to
Judge Wayne S. Trockman. The trial court held a hearing on the
motion on September 24, 1999, and later denied the motion, concluding that no
juror misconduct had occurred.
Judge Trockman eventually sentenced Terrell to an aggregate term of eight years.
Terrell appealed his conviction based on newly discovered evidence and alleged juror misconduct.
(Appellants Br. at 16-21.) The Court of Appeals dismissed his appeal,
in an unpublished opinion, stating that Terrell failed to preserve any error for
appeal when he did not file a motion to correct error. Terrell
v. State, 736 N.E.2d 353 (Ind. Ct. App. 2000). We grant transfer
to examine the issue of appellate procedure that led to the dismissal.
Rule 16(A) thus creates an exception from the general proposition that after a
trial court has entered judgment, a party may elect whether to file a
motion to correct error or to proceed to the appellate courts. One
who has a claim of newly discovered evidence is obliged to present that
claim initially to the trial judge so that he or she can assess
the quality of the newly discovered evidence and consider whether relief is warranted.
In short, when a party wishes to raise an issue of newly discovered
evidence while a case is still before the trial court (such as in
this instance, after trial and before sentencing) the party may raise it by
motion to the trial court. When the issue arises in the thirty-day
period after the trial court has entered a final judgment, Rule 16(A) requires
the party to raise the issue in a post-judgment motion to correct error.
Both avenues preserve the question for appeal.
Terrells lawyer did just the right thing. Upon discovery of the occurrence
and content of conversations between the trial judge and one of Terrells trial
jurors, he filed a motion to set aside the verdict and for mistrial
alleging juror misconduct. The trial court conducted a hearing on the motion,
and later denied it. These pre-judgment events preserved Terrells claim for presentation
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.