Deputy Sheriff Steven Lawson testified as an expert on firearms and firearms identification. Id. at 388. Specifically, he reviewed two photographs of the gun used in the robbery. These images were reduced to photos from the surveillance video. Deputy Lawson testified that based on these photos, the gun used in the robbery was a six-shot Taurus .357 revolver with a six and a half inch barrel. Id. at 391. When asked to clarify if the gun was a six- or eight-shot revolver, Deputy Lawson explained that although Taurus made both six- and eight-shot revolvers, he could not tell by looking at the photos whether the gun used in the robbery was a six- or eight-shot revolver. Id. at 393.
After Deputy Lawson was released, a juror approached him in the court office during a recess and asked him if he could determine whether the gun was a six- or eight-shot revolver. This exchange was brought to the attention of the trial court, and the parties and their counsel were brought before the court. According to Deputy Lawson, he responded to the juror as follows:
And then I made the statement that it was [a] six shot, uh, six and a half inch barrel revolver. And I said I did make that statement. However, that there‟s two series of those revolvers and one of them is six shot and the newer versions are available with a seven or eight shot even.
Id. at 397. The court then acknowledged that it had neglected to ask the jurors if they had any questions for Deputy Lawson, “[a]lthough that’s not exactly the spot that we ought to be asking the questions, but in any event, . . . what I’ve decided to do was I’ve decided that, . . . we will bring the jury back in” and “I’[ll] . . . ask that question.” Id. at 397-98. At this point, Holden moved for a mistrial because Deputy Lawson talked to a juror about an issue directly related to the case. Id. at 399. The trial court denied the motion, pointing out that the situation did not involve an outside influence trying to talk to the juror. The prosecutor then suggested dismissing the juror, but defense counsel said that was not an “adequate solution.” Id. at 400. Defense counsel continued, “I’d rather have the solution the Court suggested, frankly because we don’t know [what] they may have talked about between then and now.” Id. The prosecutor then added that the court could talk to the juror alone. The court expressed concern that perhaps some of the other jurors overheard the juror ask Deputy Lawson the question and pointed out that jurors are allowed to discuss the case during recesses in trial. Deputy Lawson chimed in that there was only one other person present during the juror’s question and that that person was not a juror. . . . The jurors then entered the courtroom, and the following exchange occurred:
THE COURT: All right you’re all still with us, so have a seat. All right in, when you all left, uh, I did not give you an opportunity to ask you any questions of Officer Lawson. And it was, uh, came to my attention that one of you did have a question of Officer Lawson and, and asked him a question out in the hallway, uh, which is, the question has got to be in here guys, they can’t be out in the hallway. So, uh, can’t do that. And so what I’m going to do is I’m going to ask that question and that gives Officer Lawson an opportunity to answer the question that, uh, that not only that one of you would have asked had I given you the chance. It also gives you all a chance to ask, to write down any other questions you might have for Officer Lawson. Uh, and, and the lawyers of course will have an opportunity to ask questions as well based upon the question I ask right now. But I, I just want to admonish you all not to, uh – I’ve told you to report if anybody talks to you all, uh, you, you can’t talk to the witnesses either okay. So, all right. Officer, uh, and you understand you’re still under oath?
A: Yes sir.
THE COURT: All right, Officer, can you look at the photos, uh, that we, that had been shown to you that, that uh, that your testimony related to and distinguish whether the weapon is a six shot or an eight shot revolver because you mentioned it had a six and a half inch barrel?
. . . .
[T]he 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. The trial court did not abuse its discretion in failing to prescribe the extreme, strong remedy of a mistrial.
Nevertheless, we would be remiss if we did not point out Indiana Jury Rule 24. Although the trial court spoke with Deputy Lawson regarding his communication with the juror outside the presence of the jury, the court did not speak with the juror outside the presence of the other jurors. Jury Rule 24 provides:
If the court receives information that a juror has personal knowledge about the case, the court shall examine the juror under oath in the presence of the parties and outside the presence of the other jurors concerning that knowledge.
If the court finds that the juror has personal knowledge of a material fact, the juror shall be excused, and the court shall replace that juror with an alternate. If there is no alternate juror, then the court shall discharge the jury without prejudice, unless the parties agree to submit the cause to the remaining jurors.
Pursuant to the clear terms of this rule, the trial court should have “examine[d] the juror under oath in the presence of the parties and outside the presence of the other jurors concerning [her] knowledge” of the gun and possibly excused her. Even though the juror was not so examined, the trial court was informed about the situation and promptly called the parties into the courtroom outside the presence of the jurors. Deputy Lawson then testified under oath about his communication with the juror, and Holden does not suggest on appeal that the communication between Deputy Lawson and the juror transpired other than as Deputy Lawson testified. In addition, the court repeated its admonishment to the jurors as a group that they could not ask witnesses questions outside the courtroom and that it had come to the attention of the court that one juror had in fact asked Deputy Lawson a question outside the courtroom. The court then said that it was going to ask Deputy Lawson that same question. Because the court admonished the jurors and asked Deputy Lawson the very question that the juror had asked him outside the courtroom and Deputy Lawson’s answers were substantially the same both on direct examination and when called back to the stand, we conclude that any error in failing to follow Jury Rule 24 was harmless.
BAILEY, J., and BRADFORD, J., concur.