FRANK ROBINSON,                )
                                    )
    Appellant (Defendant Below      ),     )     
                                    )    
    v.                              )    Supreme Court
                                    )    Cause No. 49S00-9706-CR-387 
STATE OF INDIANA,                   )    
                                    )
    Appellee (Plaintiff Below       ).    )

the sufficiency of evidence and (2) the decision of the trial court to send certain exhibits into the jury room after deliberations had begun. We affirm.

decorations. He carried a gun for personal protection and put it in the pocket of his jacket because he feared it would be stolen if he left it with his tools. He testified that he encountered Hill who without provocation picked him up and dropped him. As he fell, Robinson had his hand in his pocket holding the gun. According to Robinson, his finger “automatically” dropped to the trigger. The gun discharged when Robinson hit some lockers against the wall. Robinson testified that he then left the club, unaware that he had shot Hill. About two weeks after the shooting, Robinson surrendered to the police and, through his counsel, turned over the gun and jacket he was wearing on the night of the killing. A firearm examiner testified that a hole in Robinson's jacket was possibly caused by the firing of a bullet but he could not conclusively determine its source.See footnote 1 ¹ He also found traces of smoke powder inside the pocket of the jacket, which he testified was consistent with Robinson's version but also could have come from the hands of someone who handled a gun or ammunition.
    About an hour after beginning its deliberations, the jury sent out a note requesting to see some photographs that were admitted into evidence. The requested photographs were sent to the jury room, over Robinson's objection. A short while later, the jury found Robinson guilty of murder. Robinson filed a motion to set aside the verdict alleging the trial court had erred in sending exhibits to the jury room. The motion was denied prior to

sentencing, and Robinson was sentenced to the maximum term of sixty-five years imprisonment.

to weigh conflicting evidence. Id. Sufficient evidence supports the jury's conclusion that Robinson knowingly killed William Hill.

Ind. Code § 34-36-1-6 (1998).See footnote 3 ³ Although the statute refers to disagreements as to “testimony,” it has been construed by this Court in Powell v. State, 644 N.E.2d 855 (Ind. 1994), to apply to audio tapes that are technically exhibits, as well as to requests dealing with witnesses' trial testimony. There is a division in the Court of Appeals on the issue whether the statute applies to requests relating to all forms of evidence. Compare Anglin v. State, 680 N.E.2d 883 (statute held to apply to request to review documentary exhibits) with Riggs v. State, 689 N.E.2d 460, 462 (Ind. Ct. App. 1997) (requests “to review exhibits, which are items of physical evidence, are never within the scope of the statute”). Arguably a tape of an interview or event is sufficiently similar to testimony to require the same treatment even if not all evidence necessitates the presence of the parties to assure that it is not excessively or selectively used. Whatever the resolution of these issues, we recently held that the statute applies only to cases in which the jury “explicitly indicated a disagreement.” Bouye v. State, 1998 WL 409025, at *6, ___ N.E.2d ___, ___ (Ind. 1998).See footnote 4 ⁴ Because the note in the instant case merely indicates what items the jury wanted to see and does not suggest any type of

disagreement, under Bouye the statutory provision does not apply. Powell, to the extent it can be read to suggest or assume that the statute is triggered by any request after deliberations begin, has been clarified by Bouye on that issue.
    B. The Standard Under Case Law
    If the statute is not triggered, jury requests are evaluated under the guidelines established by our case law. In Thomas v. State, 259 Ind. 537, 540, 289 N.E.2d 508, 509 (1987), we adopted § 5.1 of the Standards Relating to Trial by Jury (American Bar Association Project on Standards for Criminal Justice), which now appears with insubstantial changes as Standard 15-4.1 in 3 American Bar Association, Standards for Criminal Justice (2d ed. 1980). The version adopted in Thomas provided:
    Materials to jury room.
    (a) The court in its discretion may permit the jury, upon retiring for deliberation, to
     take to the jury room a copy of the charges against the defendant and exhibits and
     writings which have been received in evidence, except depositions.

    (b) Among the considerations which are appropriate in the exercise of this discretion are:
     (i) whether the material will aid the jury in a proper consideration of the case;
     (ii) whether any party will be unduly prejudiced by submission of the material; and
     (iii) whether the material may be subjected to improper use by the jury.
Thomas, 259 Ind. at 540, 289 N.E.2d at 509.
    Robinson asserts that these factors apply only to a trial court's decision whether to send exhibits to the jury room when deliberations begin, and not to cases in which the jury request is made during deliberations. Thomas, which originally adopted the ABA Standard,

was a case in which exhibits were sent to the jury room at the commencement of deliberations. However, Thomas did not purport to limit itself to exhibits sent to the jury room at the commencement of deliberations, and if the statute is not implicated, the same considerations apply to a request made after deliberations have begun. The ABA rule was adopted “to guide judges in deciding which materials should be permitted in the jury room during deliberations.” Id. at 541, 289 N.E.2d at 510. Moreover, many of our post-Thomas decisions have applied ABA Standard 15-4.1 to jury requests made after deliberations had begun. See, e.g., Ingram v. State, 547 N.E.2d 823, 828-29 (Ind. 1989); Roland v. State, 501 N.E.2d 1034, 1040 (Ind. 1986); Torres v. State, 442 N.E.2d 1021, 1025-26 (Ind. 1982); Pearson v. State, 441 N.E.2d 468, 476 (Ind. 1982); see also Mitchell v. State, 535 N.E.2d 498, 500-01 (Ind. 1989) (finding no abuse of discretion in sending exhibits to the jury room during deliberations after the jury twice indicated it was deadlocked, but never made a request to review exhibits).See footnote 5 ⁵
    In deciding whether to send the requested photographs to the jury room in this case, the trial court stated:
    there's a three (3) prong test whether the material will aid the jury in a proper     consideration. I think it will, I mean, none of them have ever been in this house so,     they're entitled to a second look. Whether any party will be unduly prejudiced by the     submission of the material -- well, I can't even think of prejudice let alone undue     prejudice; and, [three], whether the material may be subjected to improper use by the     jury -- the photos I don't think could be improperly used.

protects a defendant's right to be present in the courtroom at every stage of the proceedings that requires the presence of the jury. Cape v. State, 272 Ind. 609, 611, 400 N.E.2d 161, 163 (1980).See footnote 6 ⁶ There is no statutory or constitutional requirement that the jury be returned to the courtroom for the viewing of photographs.See footnote 7 ⁷ Accordingly, Robinson's state constitutional right to be present at all stages requiring the presence of the jury was not implicated.

Converted by Andrew Scriven