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
ORVILLE LYNN MAJORS ) ) Appellant (Defendant ), ) ) v. ) Cause No. 11S00-0004-CR-239 ) STATE OF INDIANA, ) ) Appellee (Plaintiff ). )
In this direct appeal, Majors focuses on multiple claims of jury mismanagement and
misconduct. We reject these claims and affirm the trial court.
After the trial, based on the affidavit of one juror, Majors filed a
motion to correct error, which the trial court denied.
Majors says this was an improper and prejudicial ex parte communication, requiring reversal.
We think the U.S. Supreme Courts 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 courts discretion. Norton v. State, 273
Ind. 635, 661, 408 N.E.2d 514, 531 (1980) (citation omitted). We find
no error here.
A. The Two Beers. Majors requests a new trial because one juror
ordered and drank two beers that a bailiff delivered to the jurors 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.
(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 jurors lips during the entire time
between the judges charge to the jury and the jurys 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 Countys 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 sheriffs 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 courts 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.
See footnote The trial court did
not abuse its discretion in finding that the jurys verdict was not influenced
by these events.
This constitutes an attempt to impeach the verdict, impermissible under Ind. Evidence Rule
Conclusion. The trial court did not abuse its discretion by rejecting Majors claims of juror misconduct.
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 jurys 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
The federal courts take a similar position. See McDonald v. Pless, 238
U.S. 264, 267-68 (1915) (denying defendants 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.
See footnote 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.
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 Harriss denial of personal involvement in the crimes.
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
Viewing the evidence as a whole, the polygraph evidence likely had little effect
on the jury and any error in its admission was harmless.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.