A trial court didn't abuse its discretion in denying a mistrial after learning a juror asked the state's firearms expert a question outside the courtroom during a recess in the trial, the Indiana Court of Appeals ruled.

Zachariah H. Holden appealed his conviction of Class B felony robbery and adjudication as a habitual offender, arguing his motion for a mistrial should have been granted based on the juror's actions. Deputy Sheriff Steven Lawson testified as an expert on firearms and firearms identification. He reviewed two photographs taken from surveillance video of the gun used during the robbery of a convenience store. He testified based on the photos, the gun was a six-shot Taurus .357 revolver with a 6 ½-inch barrel. But, he later said he couldn't tell based on the photos if the gun was a six- or eight-shot gun.

During a recess, a juror asked the deputy sheriff if he could tell whether the gun was a six- or eight-shot revolver, and he said he couldn't tell by looking at the photos. Lawson told the juror he thought it was a six-shot but there are two versions of the gun. After learning of the incident, the court brought all the jurors in, admonished them, informed them they couldn't ask questions outside of the courtroom, and put Lawson back on the stand to answer the question.

Holden had moved for a mistrial because Lawson talked to the juror about an issue directly related to the case; the trial court denied it because it didn't involve an outside influence talking to the juror. Defense counsel rejected the idea of dismissing the juror.

In Holden v. State, No. 57A03-0903-CR-111, the appellate court determined the failure to grant a mistrial wasn't an error. Holden likely waived the issue because his counsel declined to replace the juror, wrote Judge Nancy Vaidik.

Even if he didn't waive the issue, the juror's misconduct didn't warrant a mistrial. Lawson originally had testified he couldn't tell whether the gun was a six- or eight-shot revolver, and when he was put back on the stand, gave the same answer. Lawson's answer to the juror that the gun was a six-shot was actually favorable to Holden, she noted.

"In light of this evidence, the juror's misconduct was not so prejudicial and inflammatory that Holden was placed in a position of grave peril to which he should not have been subjected," she wrote.

The appellate court also noted per Indiana Jury Rule 24, the trial court should have examined the juror under oath in the presence of the parties and outside the presence of the other jurors about her knowledge of the gun, and possibly excused her. Because the court admonished the jurors, asked Lawson the very question the juror had asked outside the courtroom, and his answers were substantially the same, any error in failing to follow Jury Rule 24 was harmless, wrote Judge Vaidik.