Majors v. State

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

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

ORVILLE LYNN MAJORS )

)

Appellant (Defendant), )

)

v. ) Cause No. 11S00-0004-CR-239

)

STATE OF INDIANA, )

)

Appellee (Plaintiff). )

________________________________________________________________________

APPEAL FROM THE CLAY CIRCUIT COURT

The Honorable Ernest E. Yelton, Judge

Cause No. 11C01-9802-CF-009

August 14, 2002

SHEPARD, Chief Justice

A jury found nurse Orville Lynn Majors guilty of murdering six

patients in his care. The trial court sentenced him to 360 years in

prison.

In this direct appeal, Majors focuses on multiple claims of jury

mismanagement and misconduct. We reject these claims and affirm the trial

court.

Facts and Procedural History

Majors worked as a licensed practical nurse at Vermillion County

Hospital. In March 1995, an investigation began into a series of

suspicious patient deaths at the Hospital. The investigation revealed that

Majors was present at the sudden and unexpected deaths of seven patients,

and that no one else was present at all seven. Investigators concluded

that Majors killed these patients by injecting them with potassium

chloride. The State charged Majors with seven counts of murder.

The trial was moved from Vermillion County and tried in Brazil by

Judge Ernest Yelton of the Clay Circuit Court, with jurors from Miami

County. The sequestered jury heard testimony for approximately six weeks

and deliberated more than three days. It found Majors guilty on six counts

and deadlocked on the seventh, resulting in a mistrial on that count. The

court sentenced Majors to consecutive terms of sixty years for each

conviction, for an aggregate term of 360 years.

After the trial, based on the affidavit of one juror, Majors filed a

motion to correct error, which the trial court denied.

I. The Judge’s Caution to a Juror

Near the end of the trial, Judge Yelton became aware that a juror was

making inappropriate facial expressions. He instructed a bailiff to

privately caution the juror to be more circumspect. Neither the

recipient nor other jurors whom she consulted knew who asked the judge to

send this message. Neither party may have been aware of either the concern

or the message. After the verdict the juror stated in an affidavit that

the message frightened and upset her.

Majors says this was an improper and prejudicial ex parte

communication, requiring reversal. We think the U.S. Supreme Court’s

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 court’s

discretion.” Norton v. State, 273 Ind. 635, 661, 408 N.E.2d 514, 531

(1980) (citation omitted). We find no error here.[1]

The Jurors’ After-Hours Activities

To warrant a new trial based on juror misconduct, the defendant must

show the misconduct was gross and probably harmed him. Griffin v. State,

754 N.E.2d at 901 (citing Lopez v. State, 527 N.E.2d 1119 (Ind. 1988)).

This determination lies within the trial court’s discretion. Id. Only

when the decision is clearly against the logic and effect of the facts and

circumstances will this Court find an abuse of discretion.[2] Hall v.

State, 760 N.E.2d 688, 689-90 (Ind. Ct. App. 2002).

A. The Two Beers. Majors requests a new trial because one juror

ordered and drank two beers that a bailiff delivered to the juror’s 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.[3]

(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

juror’s lips during the entire time between the judge’s charge to the jury

and the jury’s 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 County’s 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 sheriff’s 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 court’s 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.[4]

The trial court did not abuse its discretion in finding that the jury’s

verdict was not influenced by these events.

C. Comments About the Attorneys. Majors next claims the jury

improperly discussed aspects of the trial prior to deliberations. He

offers a juror affidavit indicating that jurors made a few isolated

comments during trial about physical characteristics of both State and

defense attorneys, and about the way a defense attorney questioned

witnesses. (R. at 2852.) He does not claim that the trial judge was aware

of these alleged comments. (See Appellant’s Br. at 58-62.)

This constitutes an attempt to impeach the verdict, impermissible

under Ind. Evidence Rule 606(b).[5]

Conclusion. The trial court did not abuse its discretion by rejecting

Majors’ claims of juror misconduct.

The Request to Depose Jurors

Majors next asks that we remand his case and order depositions of the

jurors, the alternates, and the bailiffs. He claims the right to explore

further his allegations of juror misconduct by deposing jurors who spoke to

the State after the trial but chose not to speak with defense counsel. He

cites the principle that absent a showing of no legitimate defense interest

or of a paramount State’s interest, a criminal defendant has the right to

depose State witnesses. Murphy v. State, 265 Ind. 116, 352 N.E.2d 479

(1976).

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 jury’s 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

depositions.

The federal courts take a similar position. See McDonald v. Pless,

238 U.S. 264, 267-68 (1915) (denying defendant’s 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.[6] 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.

IV. The Witness’s Polygraph

During the investigation, police interviewed Majors’ former roommate,

Andrew Harris. During Harris’ cross-examination, defense counsel elicited

the fact that Harris had secured an immunity agreement. With the court’s

permission, the State then rehabilitated Harris on re-direct with testimony

that the immunity agreement was a prerequisite to Harris’ agreement to

submit to a polygraph exam that ultimately indicated that he spoke

truthfully in denying that he aided or assisted in any unnatural deaths at

the Hospital. Majors’ attorney objected to the testimony.[7]

Admission of polygraph evidence, including the mere fact of a

polygraph examination, generally requires a stipulation by both parties.

See Albrecht v. State, 737 N.E.2d 719, 725 (Ind. 2000), reh’g denied; Swan

v. State, 462 N.E.2d 68, 71 (Ind. 1984) (mention that witness has taken

polygraph examination not permitted absent some form of waiver). We

discourage the admission of polygraph evidence because of the procedure’s

unreliability combined with its likelihood of unduly influencing a jury’s

decision. Smith v. State, 547 N.E.2d 817, 820 (Ind. 1989); see also Ben-

Yisrayl v. State, 753 N.E.2d 649, 653 (Ind. 2001), cert. denied, 122 S. Ct.

2382 (2002).

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 Harris’s denial of personal

involvement in the crimes.[8]

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 denominator.

Viewing the evidence as a whole, the polygraph evidence likely had

little effect on the jury and any error in its admission was harmless.

V. Cumulative Error

Majors argues that even if the individual errors he claims were not

sufficiently prejudicial standing alone to vacate the verdicts, the

cumulative effect of all errors deprived him of his right to a fair trial

before an impartial jury. Because we have found no errors, cumulative

effect analysis is inapplicable.

Conclusion

We affirm the judgment of the trial court.

DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.

-----------------------

[1] As to the juror’s statements concerning how this message upset her, we

recently adopted the federal approach and will consider juror affidavits to

the extent that they assert that deliberations were tainted by improper

information or influence. Griffin v. State, 754 N.E.2d 899, 902-03 (Ind.

2001). We disregard statements about the effect of that information or

influence on the juror’s decision, however, and instead make an independent

determination of the likely effect of the prejudicial material, with the

goal of avoiding post-verdict volleys of juror affidavits that purport to

re-create individual thought processes. Id.

Here (assuming for the sake of argument that this message qualified

as an outside influence), a discreet request that a juror not betray her

reactions so openly, which was not attributed to either the State or

defense, did not prejudice Majors.

[2] Majors concludes several of his arguments with the general assertion

that he was denied his constitutional right to a fair trial by an impartial

jury. Although he cites to U.S. Constitution amendments, he provides no

cogent argument as to how these rights were violated and has thus waived

these claims under Ind. Appellate Rule 46(A)(8).

[3] There is reason for skepticism about this juror’s credibility. On

December 14, 1999, she swore under penalty of perjury that “I know that the

wife of our foreman . . . is writing a book about the trial.” (R. at 2850,

2854.) She also swore that after the trial she received a formal

invitation saying “that [the foreman’s wife] was writing a book about the

case and that I was invited to attend a gathering of the jurors to discuss

the case.” (R. at 2851.) On February 1, 2000, she conceded in a

supplemental affidavit, “My impression based on the comments being made by

the other jurors was that [the foreman’s wife] was writing a book about the

case. Whether a book will actually be written or not, I do not know.” (R.

at 3169.) She also acknowledged, “I did not read the invitation . . . very

closely before I threw it in the trash. I assumed the invitation was

directed toward the writing of the book . . . .” (R. at 3169.)

We note also that the State obtained affidavits from all eleven other

jurors, none of whom confirmed that any jurors drank alcohol during

deliberations and most of whom positively said that they saw no drinking.

(R. at 2941, 2947, 2953, 2955, 2957, 2959, 2961, 2963, 2965.) One juror

believed that all the other orders that evening were for soft drinks. (R.

at 2965.)

[4] Majors also complains that after the verdict, one of the state troopers

gave Indiana State Police keychains to the jurors. (Appellant’s Br. at

55.) This is irrelevant. In light of the timing, it could not have

influenced the verdict.

[5] Rule 606(b) says:

Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the

validity of a verdict or indictment, a juror may not testify 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 to assent to or dissent from

the verdict or indictment or concerning the juror’s mental processes in

connection therewith, except that a juror may testify (1) to drug or

alcohol use by any juror, (2) on the question of whether extraneous

prejudicial information was improperly brought to the jury’s attention or

(3) whether any outside influence was improperly brought to bear upon any

juror. A juror’s affidavit or evidence of any statement by the juror

concerning a matter about which the juror would be precluded from

testifying may not be received for these purposes.

[6] Majors also later submitted affidavits from two alternate jurors, (R.

at 3175-81), but these do nothing to advance his cause. Neither provides

any evidence of juror alcohol consumption during deliberations. (Id.)

Their statements concerning the message, the picnics, and the gift of wine

are irrelevant, as explained above, because these activities were not

prejudicial.

[7] This objection occurred after both the reference to the polygraph and

Harris’s testimony that the test verified his assertion that he had not

aided or assisted in the deaths. The State argues that the objection came

too late and the issue was therefore waived for appeal, quoting Lay v.

State, 659 N.E.2d 1005, 1013 (Ind. 1995) (defendant “must object or move

for mistrial at the first mention of a polygraph examination”).

(Appellee’s Br. at 41 n.4.)

Where, as here, the challenged ruling arises from a recorded bench

conference held immediately before the polygraph testimony, it would be an

overly mechanistic application of this rule to require a repetitious

objection in the jury’s presence. Here, however, the defense did not

challenge the admissibility of the polygraph evidence during the bench

conference, but rather sought to avoid its admission by offering to

withdraw the question about the immunity agreement. The State is therefore

correct that we could deem this issue waived for appeal.

[8] Majors argues that the State first impeached Harris on direct, by

asking where one of the interviews took place, to which Harris answered

that the meeting was at his attorney’s office. (R. at 6098-99.) Because

we find in the alternative that the polygraph evidence was at worst

harmless error, we need not address who opened the door to what.