ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
S. Neal Ziliak Gregory F. Zoeller
Noblesville, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Jun 23 2009, 2:16 pm
Indiana Supreme Court
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 29S00-0901-CR-1
JUAN C. LUCIO, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________
Appeal from the Hamilton Superior Court, No. 29D01-0704-MR-47
The Honorable Steven R. Nation, Judge
_________________________________
On Direct Appeal
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June 23, 2009
Dickson, Justice.
The defendant, Juan Lucio, seeks reversal of his convictions for two counts of Murder
and one count of Conspiracy to Commit Murder and the accompanying two sentences of life im-
prisonment without parole and one sentence of fifty years arising from his role in the April, 2007
deaths of Rebecca Payne and George Benner in Carmel, Indiana. In this direct appeal, he
presents a single issue, arguing that the trial court erred in denying his request for a mistrial
when, in response to a juror-submitted question, a witness violated a pretrial order by testifying
that she thought the defendant had met the alleged co-conspirator and murder triggerman in a
county jail. We affirm the trial court.
The trial evidence favorable to the verdict indicated that the defendant was recruited by
Toby Payne to kill Payne's estranged wife Rebecca Payne, and her boyfriend, George Benner.
Toby had given the defendant a key to Rebecca's house and a map, and promised him $100,000
from a life insurance policy in return for the killing. The defendant, in turn, recruited Kyle
Duckworth to drive him to Rebecca's house in exchange for $200 or a quarter-pound of marijua-
na. Originally, the defendant planned to be the shooter, but later changed his mind and recruited
Anthony Delarosa to be the triggerman. On April 2, 2007, Duckworth drove the defendant and
Delarosa to Rebecca's house. The defendant gave Delarosa a gun, and Delarosa entered the
house but returned and said that Rebecca was not home. The men agreed to try again later. On
April 4, the defendant called Duckworth to pick him up, called Delarosa to ask if he was ready,
and called Toby Payne to inform him they were trying again. The three men drove to Rebecca's
home, the defendant again gave Delarosa a gun, and Delarosa entered the house and fired the fat-
al shots. When police had questioned him during their investigation, the defendant first admitted
that Toby Payne had given him a key to the house and asked him to kill Rebecca, but later
claimed that they were supposed to scare Rebecca and extort money from her, that Delarosa told
him where to go, that he did not know Delarosa had a gun, that he did not know why Delarosa
was extorting money from her, and that he and Duckworth were supposed to get $200 each for
driving.
Before the defendant's jury trial began, the defendant moved to prevent the introduction
of evidence regarding aspects of his criminal record, including arrests, convictions, pending
charges, and periods of incarceration. At a pretrial hearing on the motion, the State objected to
the extent the motion would preclude it from offering proof that the defendant and two alleged
co-conspirators had spent time together and corresponded while in the Boone County Jail. The
court ruled that the State could present evidence that the men had associated during that time pe-
riod but granted the defendant's motion with respect to the specific location as well as "why these
individuals were in the Boone County Jail." Appellant's App'x at 208.
At trial, the State called as a witness the defendant's former girlfriend, Tara Cassada.
Following direct and cross-examination, the trial court, away from the jury's presence, consi-
2
dered several questions that the jurors submitted pursuant to Jury Rule 20(a)(7).1 In one of these
questions, a juror asked, "How were Tony Delarosa and Juan connected, i.e., drugs, work, and
for how long have they been acquainted?" Tr. at 478-79. The prosecutor and defense counsel
agreed that the first half of the question could not be asked, but neither objected to asking how
long the defendant and the co-conspirator had known each other. When proceedings were re-
sumed in the jury's presence, the trial court posed several of the jurors' questions to the witness.
As to the above specific question, the court rephrased the question to ask, "Now, between Tony
Delarosa and Juan, how long have they been acquainted?" and the witness replied: "As far as I
know they had met in Boone County Jail." Tr. at 483.
Defense counsel immediately moved for a mistrial, arguing that this testimony, though
inadvertent and not an "evidentiary harpoon,"2 was highly prejudicial both to his client's guilt
and potential life sentence. Tr. at 484. The prosecutor confirmed that Ms. Cassada had been in-
structed not to mention the fact that the men had been in jail together; suggested that the court
issue a curative instruction, strike the answer, and advise the jury not to consider the testimony in
any way; and argued that "with the extent of overwhelming evidence that we've already pre-
sented in this case, . . . the Court can find that although this is certainly not a good thing, that it is
harmless under all the circumstances . . . , with an admonishing instruction to the jury." Tr. at
486. The court agreed that the violation was unintentional and denied the mistrial motion. The
court then asked if the defendant desired a limiting instruction and crafted one with the input of
both parties. When the jury returned, the court instructed as follows: "Well, ladies and gentle-
men, the last answer of the witness is hereby stricken from the record. You must not consider
that evidence as to any matter before you for consideration. In fact, such matter is to be treated
as though you have never heard of it. So that is the order of the Court." Tr. at 488.
1
This rule provides that jurors "may seek to ask questions of the witnesses by submission of questions in
writing."
2
"An evidentiary harpoon involves the deliberate use of improper evidence to prejudice the defendant in
the eyes of the jury." Williams v. State, 512 N.E.2d 1087, 1090 (Ind. 1987).
3
At the conclusion of all the evidence, the jury was instructed on vicarious criminal liabili-
ty.3 It found the defendant guilty on all three counts. In the subsequent penalty phase proceed-
ing, the jury determined that the State had proved two charged aggravating circumstances—
murder for hire and multiple killings, Ind. Code §§ 35-50-2-9(b)(4), (b)(8)—beyond a reasonable
doubt, found that the aggravators outweighed the mitigators, and recommended that the defen-
dant be sentenced to life in prison without parole. The trial court, following the jury's recom-
mendation, sentenced the defendant to life without parole for the murder counts and imposed a
fifty-year term for the conspiracy count, all sentences to run consecutively.
The defendant now contends that the trial court erred in denying his motion for a mistrial
after Ms. Cassada's improper testimony. Because the trial court is best positioned to assess the
circumstances of an error and its probable impact on the jury, "[t]he denial of a mistrial lies with-
in the sound discretion of the trial court," and this Court reviews only for abuse of that discretion.
Gill v. State, 730 N.E.2d 709, 712 (Ind. 2000). The overriding concern is whether the defendant
"was so prejudiced that he was placed in a position of grave peril." Id. The defendant argues
that Cassada's testimony placed him in grave peril during the guilt phase and during the penalty
phase by creating the forbidden "bad person" inference, i.e., once a criminal always a criminal.
The dispute is not over the propriety of Ms. Cassada's testimony (which everyone agrees
was improper), but rather about the trial court's failure to grant a mistrial. The remedy of mistrial
is "extreme," Warren v. State, 757 N.E.2d 995, 998-99 (Ind. 2001), strong medicine that should
be prescribed only when "no other action can be expected to remedy the situation" at the trial
level, Gambill v. State, 436 N.E.2d 301, 304 (Ind. 1982). But the trial court immediately told the
jury "not [to] consider that evidence as to any matter before you for consideration" and to treat it
"as though you have never heard of it." Tr. at 488. This clear instruction, together with strong
presumptions that juries follow courts' instructions and that an admonition cures any error, se-
verely undercuts the defendant's position. Kent v. State, 675 N.E.2d 332, 336 (Ind. 1996); James
3
Final Instruction No. 12 read that "[a] person who, knowingly or intentionally aids another person in
committing or induces another person to commit or causes another person to commit murder is guilty of
murder." Appellant's App'x at 327. See Ind. Code § 35-41-2-4 (Indiana's accomplice liability statute,
under which a person "who knowingly or intentionally aids, induces, or causes another person to commit
an offense commits that offense").
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v. State, 613 N.E.2d 15, 22 (Ind. 1993); Szpyrka v. State, 550 N.E.2d 316, 317-18 (Ind. 1990);
Pillow v. State, 479 N.E.2d 1301, 1306 (Ind. 1985); Davenport v. State, 464 N.E.2d 1302, 1308
(Ind. 1984); Beer v. State, 885 N.E.2d 33, 47-49 (Ind. Ct. App. 2008). Moreover, the parties
agree that this was an inadvertent mistake by a civilian witness, that no other witness provided
any evidence regarding the defendant's criminal record during the five-day trial, and that the
State made absolutely no reference to this statement in its closing statement to the jury or at any
other time during the trial. By all accounts the statement was fleeting, inadvertent, and only a
minor part of the evidence against the defendant. See Jackson v. State, 518 N.E.2d 787, 789
(Ind. 1988); Coleman v. State, 490 N.E.2d 325, 328 (Ind. 1986). All of these factors persuade us
that the trial court did not abuse its discretion in denying the defendant's motion for a mistrial.
The defendant also argues that the materiality of resulting harm to him increased as the
case moved into the penalty phase trial. He urges that the offending testimony created a forbid-
den inference that placed him in particularly great peril, which was not curable by the trial court's
admonition.
That the State sought life imprisonment does not alter the analysis of whether the trial
court was compelled to grant a mistrial. The statement did not prevent the defendant from re-
ceiving a fair trial, and the defendant cites no authority to establish that a statement which fails to
place him in grave peril of being convicted of Murder and Conspiracy to Commit Murder gives
rise to grave peril because of the potential punishment.
It is also significant that in the penalty phase trial, the jury was carefully instructed re-
garding the issues to be decided and directed not to consider any others. The instructions in-
cluded the following:
Before you may consider recommending life imprisonment without parole, you
must unanimously find that the State has proven beyond a reasonable doubt:
AGGRAVATING CIRCUMSTANCE NUMBER 1:
On or about April 4, 2007, in Hamilton County, Indiana, Juan C. Lucio committed
the murder of Rebecca Payne after having been hired to kill Rebecca Payne, in violation
of I.C. 35-50-2-9(a) and (b)(4); and/or
AGGRAVATING CIRCUMSTANCE NUMBER 2:
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On or about April 4, 2007, in Hamilton County, Indiana, Juan C. Lucio commit-
ted another murder, to-wit, did kill George Benner, in violation of I.C. 35-50-2-9(a) and
(b)(8).
You are not permitted to consider any circumstances as weighing in favor of the
sentence of life imprisonment other than the above stated aggravating circumstances
specifically charged by the State in the Charging Information.
Appellant's App'x at 413 (emphasis added). The defendant's criminal record was not at issue
during the penalty phase and no evidence was presented on the matter. We find that the wit-
ness's inadvertent answer, particularly in light of the trial court's prompt admonishment and the
prosecution's total avoidance of any further reference to the answer during the guilt and penalty
phases of the trial, did not result in grave peril during the penalty phase.
Our conclusion that the trial court did not err in denying the defendant's mistrial motion is
not altered by the fact that the witness's inappropriate answer occurred during a trial that then
proceeded to a penalty phase at which the defendant was facing a sentence of life imprisonment
without parole.
Conclusion
Concluding that the trial court properly responded to a witness's inappropriate answer to a
jury question, and that the inadvertent answer was not thereafter used by the prosecution, we find
no error in denying the defendant's motion for mistrial and therefore affirm the judgment of the
trial court.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
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