Jackson v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jason J. Pattison Gregory F. Zoeller
Madison, Indiana Attorney General of Indiana

Alison T. Frazier Joby D. Jerrells
Madison, Indiana Deputy Attorney General
Indianapolis, Indiana

______________________________________________________________________________

In the FILED
Indiana Supreme Court
Apr 27 2010, 3:17 pm

_________________________________ CLERK
of the supreme court,
court of appeals and
tax court

No. 39S01-0907-CR-309

GARY DENNIS JACKSON,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________

Appeal from the Jefferson Circuit Court, No. 39C01-0609-FB-90
The Honorable Ted R. Todd, Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 39A01-0711-CR-528
_________________________________

April 27, 2010
Boehm, Justice.

The trial court declared a mistrial after interviewing jurors regarding their exposure to a
newspaper article reporting a letter written by the defendant to the prosecution. The Court of
Appeals reversed the defendant‘s conviction by a newly impaneled jury. The Court of Appeals
found insufficient grounds to discharge the earlier jury, and therefore ruled the trial by the new
jury violated the double jeopardy clause of the Fifth Amendment. We hold that the trial court‘s
determination of the need to discharge the earlier jury is entitled to deference and was not an
abuse of discretion on this record. Accordingly, we affirm the conviction.
 Facts and Procedural History

On September 12, 2006, Officer Christopher Strouse of the Madison Police Department
was dispatched to Ben Smith‘s apartment on Walnut Street in Madison. When Officer Strouse
arrived, he found Smith and Harold Centers in the apartment and Gerald ―Bubby‖ Roberts lying
on a mattress with dried blood on it. Paramedics were called to the scene and failed to revive
Roberts, who was pronounced dead at a local hospital.

Witnesses alleged that Gary Jackson and Roberts had had a physical altercation at
Smith‘s apartment the day before. Jackson was subsequently charged with aggravated battery, a
Class B felony, and as a habitual offender. Jackson‘s first trial in December of 2006 ended in a
hung jury.

The jury for the second trial was sworn on April 23, 2007. That same day, a local
newspaper ran an article about the trial which contained an excerpt from a letter Jackson had
written to the prosecutor trying his case. The article quoted Jackson as writing:

I know my life to you doesn‘t mean anything, just another poor black man the
state can clean-up the book on. I can understand you feeling that way, but at least
give Bubby Roberts‘ family peace by telling them the truth. They deserve that.

The next day, April 24, the state requested a mistrial. The court first identified five jurors who
acknowledged they had been exposed to the article, then conducted individual voir dire of the
five. One juror had read the first few sentences of the article but stopped when he remembered
the judge‘s instruction to avoid media coverage of the trial. Two had read the entire article but
stated that they had not formed an opinion about the case. Two others stated that their spouses
had started to read the article aloud, but the jurors told the spouses to stop, and one spouse
responded that he knew Roberts. All five testified that exposure to the article would not affect
their decision in the case.

The State argued that a mistrial was required because an admonishment to the jury could
not overcome the prejudice against the State created by the article. Specifically, the State argued
that Jackson‘s letter implied that he was prosecuted because of his race, and that the State was
not telling the truth and would not do so at trial. Jackson replied that there was no prejudice
because the five jurors each testified that the article had not caused them to form an opinion.

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The court agreed that neither Jackson nor his counsel had anything to do with the article. The
court also accepted Jackson‘s claim that the jurors denied any bias, but added, ―That‘s not my
issue in my head,‖ and granted the State‘s motion for mistrial.

A third jury trial began in June 2007. After hearing various accounts of an encounter
between Jackson and Roberts, the jury found Jackson guilty of battery resulting in serious bodily
injury, a Class C felony. The trial court imposed a sentence of eight years for the battery. A
habitual offender finding was entered but the Court of Appeals stayed Jackson‘s appeal to permit
him to pursue post-conviction relief as to that issue, and the habitual offender finding was
vacated. Jackson v. State, 903 N.E.2d 542, 546 (Ind. Ct. App. 2009).

After the post-conviction relief was granted, the appeal was resumed. The Court of
Appeals reversed Jackson‘s conviction, finding that the trial court abused its discretion in
granting the mistrial and a retrial of Jackson was therefore barred by double jeopardy. Id. at
548–49. We granted transfer.

Discussion

Jackson argues that the trial court abused its discretion in granting a mistrial, so the
subsequent trial violated the prohibition against double jeopardy found in both the Federal and
Indiana Constitutions. Jackson also argues that the trial court erred in excluding as hearsay a
paramedic‘s testimony reporting a bystander‘s account of how Roberts was injured. Last,
Jackson contends that the evidence was insufficient to support his battery conviction.

As a threshold matter, the State contends that Jackson waived his challenge to the mistrial
by failing to object to the trial court‘s grant of the mistrial. Jackson opposed the State‘s motion
for mistrial and argued before the trial court that a mistrial was inappropriate because the jurors
exposed to the article all attested that they were not influenced by it. This brought the issue to
the trial court‘s attention. An objection after the trial court ruled would have been in substance a
motion to reconsider a matter that was fully argued. This is not required to avoid waiver. See
Ind. Trial Rule 46. We agree with the Court of Appeals that this was sufficient to preserve the
issue for appeal. Jackson v. State, 903 N.E.2d 542, 546 (Ind. Ct. App. 2009).

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 I. Double Jeopardy

The Fifth Amendment prohibits the State from placing a defendant in jeopardy twice for
the same offense.1 Brown v. State, 703 N.E.2d 1010, 1015 (Ind. 1998) (citing Benton v.
Maryland, 395 U.S. 784 (1969)). Jeopardy attaches when a jury has been selected and sworn.
Crim v. State, 156 Ind. App. 66, 75, 294 N.E.2d 822, 828 (1973). Once jeopardy has attached,
the trial court may not grant a mistrial over a defendant‘s objection unless it finds a ―manifest
necessity‖ for the mistrial. Brown, 703 N.E.2d at 1015 (citing Arizona v. Washington, 434 U.S.
497, 505 (1978)). Absent this finding, a mistrial operates as an acquittal to bar further
prosecution. Id. (citing Wright v. State, 593 N.E.2d 1192, 1196 (Ind. 1992)). We review a grant
of mistrial for abuse of discretion. Id.

Justice Story introduced ―manifest necessity‖ as the standard for discharging a jury in
United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824). He explained that it authorized a trial
court to discharge a jury when:

[T]aking all the circumstances into consideration . . . the ends of public justice
would otherwise be defeated. [The trial court is] to exercise a sound discretion on
the subject; and it is impossible to define all the circumstances, which would
render it proper to interfere. To be sure, the power ought to be used with the
greatest caution, under urgent circumstances, and for very plain and obvious
causes . . . .

Id. at 580. The Supreme Court explained this standard in Arizona v. Washington, where the
defendant challenged the trial court‘s declaration of a mistrial for comments made during
defense counsel‘s opening statement. 434 U.S. at 498. The Court acknowledged the difficulty in
measuring jury bias and made clear that manifest necessity does not mean a mistrial had to be
―necessary‖ in ―a strict, literal sense.‖ Id. at 511. Justice Story‘s words ―do not describe a
standard that can be applied mechanically or without attention to the particular problem
confronting the trial judge.‖ Id. at 506. Rather, only a ―high degree‖ of necessity is required to
conclude that a mistrial is appropriate. Id. The Court recognized that ―some trial judges might

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Jackson contends that both the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution and
Article 1, § 14 of the Indiana State Constitution barred his third trial. The cases that Jackson cites, however, are
either federal cases or Indiana cases interpreting federal law. Because Jackson does not provide any authority or
argument supporting a separate standard under the Indiana Constitution, his state constitutional claim is waived.
Brown v. State, 703 N.E.2d 1010, 1015 & n.4 (Ind. 1998).

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have proceeded with the trial after giving the jury appropriate cautionary instructions.‖ Id. at
511. Nonetheless, the Court held that the reviewing court must ―accord the highest degree of
respect to the trial judge‘s evaluation of the likelihood that the impartiality of one or more jurors
may have been affected by the improper comment.‖ Id. Accordingly, the Court deferred to the
trial court‘s decision, even though the trial court failed to make ―an explicit finding of ‗manifest
necessity‘‖ or state that it ―had considered alternative solutions and concluded that none would
be adequate.‖ Id. at 501, 516.

Many different factors may bear on the need for a mistrial. First, it is significant whether
the reason for the mistrial is attributable to the prosecution. Brown, 703 N.E.2d at 1015. If so,
the State must demonstrate a ―much higher‖ degree of necessity for the mistrial. Id. at 1015–16
(citing Corley v. State, 455 N.E.2d 945, 950–51 (Ind. 1983); Burton v. State, 510 N.E.2d 228,
229 (Ind. Ct. App. 1987)). This heightened standard is derived from a natural concern that a
party seeking a mistrial may be motivated by a belief that its case is not being well received.
This rule has been codified at I.C. § 35-41-4-3(b), which bars a subsequent prosecution if the
prosecutor caused any specified circumstances with the intent to terminate the trial.

The necessity of a mistrial is also evaluated in light of the steps taken by the trial court to
avoid a mistrial. E.g., United States v. Charlton, 502 F.3d 1, 5 (1st Cir. 2007) (considering the
following factors: whether the trial court provided counsel an opportunity to be heard, whether
the trial court considered alternatives to a mistrial, and whether the trial court‘s decision was
made after adequate reflection). The burden imposed by a mistrial is also relevant. In Brown,
we recalled the values underlying the protection against double jeopardy—the burden on the
accused, the associated stigmatization as one accused, and the increased risk of wrongful
conviction. Brown, 703 N.E.2d at 1016 & n.5. Double jeopardy jurisprudence balances these
values against society‘s interest in allowing the prosecution ―one complete opportunity for a
conviction.‖ Id. (citing Washington, 434 U.S. at 509). Accordingly, we recognized that these
values ―are not as great when the trial is terminated shortly after jeopardy has attached as
opposed to at a later stage in the trial.‖ Id.

Here, five of the twelve jurors were exposed to an article citing Jackson‘s letter implying
that he was prosecuted because of his race and that the prosecutor had not been truthful in

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dealing with the victim‘s family. The appearance of the letter in the newspaper was not
attributable to either party. Although all jurors who admitted to having seen the article testified
that they were not influenced by it, the trial court is in the best position to evaluate this
testimony. See Washington, 434 U.S. at 511, 514–15 (according the ―highest degree of respect‖
to the trial court‘s evaluation of possible juror impartiality). We do not agree with Jackson that
the trial court was required to make explicit findings or give explanations as to the reason for the
mistrial. Indeed, Washington holds to the contrary. Id. at 501, 516–17. Nor was the trial court
required to admonish the jury or attempt other curative measures before declaring a mistrial. Id.

The trial court‘s decision is bolstered by the fact that the jurors were exposed to the
article the same day they were impaneled and the mistrial was declared the next day. This was
before any evidence was introduced, and even before opening statements. As in Brown, where
the mistrial was declared after the opening statements but before evidence was introduced, ―the
danger of unfairness posed by a new trial was not great.‖ Brown, 703 N.E.2d at 1016 & n.5;
accord Washington, 434 U.S. at 510–11 (granting a mistrial after the opening statements). Under
all of these circumstances, we cannot say the trial court‘s ruling ordering a new trial was an
abuse of discretion.

II. Exclusion of Evidence

Jackson claims that the trial court erred in excluding a paramedic‘s testimony that, while
he was treating Roberts in Smith‘s apartment, an unidentified bystander stated that Roberts
―jumped up and yelled something, fell, striking his head on the wall.‖ Jackson contends that this
statement was admissible either as one for the purposes of medical diagnosis or treatment under
Indiana Evidence Rule 803(4) or as a prior inconsistent statement for impeachment purposes
under Indiana Evidence Rule 613.

The paramedic‘s account of the bystander‘s statement was plainly hearsay, and was
inadmissible unless an exception applied. Evid. R. 802. Rule 803(4) provides an exception for
statements made ―for the purpose of medical diagnosis or treatment.‖ It permits accounts of
statements by a person needing medical treatment, but not statements attributed to the treating
professional. Sibbing v. Cave, 922 N.E.2d 594, 598 (Ind. 2010) (citing McClain v. State, 675
N.E.2d 329, 331 (Ind. 1996)). In some cases, ―statements by others, most often close family

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members, may be received if the relationship or the circumstances give appropriate assurances‖
as to the statements‘ reliability. 2 McCormick on Evidence § 277, at 286 (Kenneth S. Broun et
al. eds., 6th ed. 2006). It is not obvious that this statement, whoever made it, was made for the
purpose of diagnosis or treatment. In any event, there is nothing in the record to support
Jackson‘s claim that the unidentified bystander was in some close relationship to Roberts such
that this statement can enjoy the confidence of reliability required by Evidence Rule 803(4).

Jackson also claims that the statement was admissible as a prior inconsistent statement
under Evidence Rule 613. Rule 613 allows the use of a prior inconsistent statement to impeach a
witness, and when so used, the statement is not hearsay. Martin v. State, 736 N.E.2d 1213, 1217
(Ind. 2000). This rule permits prior inconsistent statements by the person being impeached. Id.
Here, Jackson sought to introduce the paramedic‘s testimony to impeach Smith‘s denial that he
made the statement. But Jackson did not establish that Smith was the declarant of this
unattributed statement. The trial court was therefore correct in excluding the paramedic‘s
testimony.

III. Sufficiency of Evidence

Jackson challenges the sufficiency of the evidence to support his conviction for Class C
felony battery resulting in serious bodily injury. Specifically, Jackson claims the evidence does
not establish that Jackson caused Roberts‘s injuries. The standard of review for sufficiency-of-
evidence claims is well settled. We do not reweigh the evidence or judge the credibility of the
witnesses, and respect ―the jury‘s exclusive province to weigh conflicting evidence.‖ Alkhalidi
v. State, 753 N.E.2d 625, 627 (Ind. 2001). We ―consider only the probative evidence and
reasonable inferences supporting the verdict.‖ McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005). We affirm ―if the probative evidence and reasonable inferences drawn from the evidence
could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable
doubt.‖ Tobar v. State, 740 N.E.2d 109, 111–12 (Ind. 2000).

To convict Jackson of Class C felony battery, the State was required to prove that
Jackson ―knowingly or intentionally‖ touched Roberts in ―a rude, insolent, or angry manner,‖
resulting in ―serious bodily injury.‖ I.C. § 35-42-2-1(a)(3). At trial, Smith and Garry Campbell
testified that in the early afternoon of September 11, 2006, they were drinking with Jackson in

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Smith‘s apartment. Smith testified that Jackson was ―very angry‖ at Roberts and said he was
going to ―whoop‖ Roberts for stealing from him. A few hours later, Roberts and Tim High
showed up at the apartment and joined in the drinking. Smith, Campbell, and High all testified
that Jackson got into a heated argument and then a fight with Roberts. High testified that
Jackson hit and kicked Roberts multiple times, and was ―basically stomping him.‖ Smith
testified that Jackson hit Roberts in the face, kicked him in the head and stomach, and
―stomp[ed] on‖ him. Campbell testified that Jackson struck Roberts with his fist a few times,
knocked him to the mattress, and ―started kicking him any way he could.‖ Campbell also
testified that Roberts hit his head when he fell onto the mattress. When Jackson was finished,
Roberts was bleeding from the mouth, and both Smith and Campbell observed blood on the wall
by the mattress. Neither Smith nor Campbell observed Roberts getting up or speaking after the
fight. Roberts ultimately died from injuries related to a blunt force trauma to the head. This
evidence, if credited, is sufficient to convict Jackson of battery resulting in serious bodily injury.

Jackson notes that Roberts‘s DNA was found on Smith‘s shoes, but not on Jackson‘s
boots. High testified that Smith and Jackson both kicked Roberts. This may suggest that Smith
also battered Roberts, but does not exculpate Jackson.

Conclusion

Jackson‘s conviction and sentence are affirmed.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

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