ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Caroline B. Briggs Jeffrey Modisett
Lafayette, Indiana Attorney General of Indiana
Janet Brown Mallett
Deputy Attorney General
INDIANA SUPREME COURT
TIM GODBY, )
v. ) 33S00-9807-CR-416
STATE OF INDIANA, )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable John Kellam
Cause No. 33C01-9512-CF-036
On Direct Appeal
October 5, 2000
The defendant, Tim L. Godby, was convicted of murder
See footnote 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 rulingSee footnote , 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
Escobedo, and secondly, the text of this is not an interrogation, period.
. . . So, I would say that the statement
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.
Jury Conduct and Questions
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.
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
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.
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
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
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
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.
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.