West v. State




ATTORNEY FOR APPELLANT:                 ATTORNEYS FOR APPELLEE:

TIMOTHY R. DODD                   STEVE CARTER
Evansville, Indiana                          Attorney General of Indiana

                                        ADAM DULIK
                                        Deputy Attorney General
                                        Indianapolis, Indiana







                                   IN THE


                          SUPREME COURT OF INDIANA



NORMAN L. WEST,                   )
                                        )
      Appellant-Defendant,              )
                                        )    Supreme Court Cause Number
            v.                          )    82S00-0008-CR-474
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee-Plaintiff.                    )


                 APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                   The Honorable J. Douglas Knight, Judge
                        Cause No.  82D02-9911-CF-911



                              ON DIRECT APPEAL


                              November 16, 2001

RUCKER, Justice


      A jury convicted Norman West of murder, and the trial court  sentenced
him to sixty years imprisonment.  In  this  direct  appeal  we  address  the
following rephrased issue: did the trial court err in denying West’s  motion
for mistrial.  Finding no error, we affirm.
                                    FACTS
      In the early morning hours of October 28, 1999, a  neighbor  overheard
an argument between West and his girlfriend,  Theresa  Hunt.   According  to
the neighbor, after West threatened to  kill  Hunt,  the  argument  stopped.
Later that day an Evansville police officer  was  called  to  the  apartment
shared by Hunt and  West  and  discovered  Hunt’s  body.   A  later  autopsy
revealed Hunt died as a result of manual strangulation.  West  was  arrested
and charged with her murder.
      In due course, the case proceeded to trial by jury.  At one  point  in
the late afternoon hours of the second day of trial, the  jury  was  excused
while the trial court entertained arguments of  counsel  on  an  evidentiary
issue.  As the jury was  waiting  in  the  jury  room,  one  of  the  jurors
proceeded to examine the contents of a  box  stored  in  the  room.   In  so
doing, the juror discovered a handgun that was associated with an  unrelated
trial conducted several years earlier.  The bailiff was  notified,  and  she
immediately  alerted  the  trial  judge.    After   making   a   record   by
interrogating the bailiff and allowing counsel to do  the  same,  the  trial
court reassembled the jury.  The trial judge then gave the  jury  a  routine
end of the day admonishment and further  admonished  the  jury  to  “refrain
from looking through any drawers, cabinets,  boxes,  or  whatever  might  be
there.”  R.  at  292.   The  following  morning  West  filed  a  motion  for
mistrial, which the trial court denied.  Before doing so,  the  trial  court
inquired of the jury:
      [I]n light of the events that occurred in the Jury Room  yesterday  in
      respect to a certain firearm, will that event or circumstance  in  any
      way interfere with your ability to be a fair and  impartial  Juror  in
      this case and reach a verdict solely on what you see and hear in  this
      Courtroom as evidence?


R. at 296-97.  Each juror replied that he or she would not.  R.  at  297-98.
The  trial  resumed,  and  ultimately  West  was   convicted   as   charged.
Thereafter, the trial court  sentenced  him  to  sixty  years  imprisonment.
This direct appeal followed.

                                 DISCUSSION


      West contends  the  trial  court  erred  in  denying  his  motion  for
mistrial.  In essence he complains that because  his  own  case  involved  a
crime of violence, the mere discovery of a weapon of violence  in  the  jury
room could have affected the jury’s ability to remain  fair  and  impartial.
West cites federal authority to support his position.
      Unlike the view taken in some  federal  circuits,  see,  e.g.,  United
States v. Keating, 147 F.3d 895, 900  (9th  Cir.  1998);  United  States  v.
Gonzales, 121 F.3d 928, 944-45 (5th Cir. 1997), Indiana does  not  take  the
position that the  mere  possibility  that  extrinsic  evidence  could  have
affected the jury’s verdict is sufficient to require a mistrial.  Rather,  a
mistrial is an extreme remedy  that  is  warranted  only  when  less  severe
remedies will not satisfactorily correct the error.  Warren  v.  State,  725
N.E.2d 828, 833 (Ind. 2000).  Where the trial court is  presented  with  the
possibility that the jury has been exposed to extraneous material  having  a
potential to taint the jury’s verdict, upon  motion  by  the  defendant  the
trial court is required to interrogate and admonish the jurors  collectively
and individually.  Lindsey v. State, 260  Ind.  351,  295  N.E.2d  819,  823
(1973).[1]
      Here, West does not contend the  trial  court  failed  to  follow  the
Lindsey procedure.  Nor does West contend the  trial  court’s  interrogation
and admonishment were insufficient.  Rather, his complaint seems to be  that
regardless of the jurors’ response to the trial court’s interrogation,  they
nonetheless were unable to remain fair and impartial.
      The decision to grant or deny a motion for mistrial  lies  within  the
discretion of the trial court.  Ortiz v. State, 741 N.E.2d 1203, 1205 (Ind.
2001).  The trial court’s determination will  be  reversed  only  where  an
abuse of discretion can be established.  Mickens v. State, 742 N.E.2d  927,
929 (Ind. 2001).  To prevail, the appellant  must  establish  that  he  was
placed in a position of grave peril  to  which  he  should  not  have  been
subjected.  Id.  The gravity of the peril is  determined  by  the  probable
persuasive effect on the jury’s decision.  Gill v. State, 730  N.E.2d  709,
712 (Ind. 2000).  West has  not  demonstrated  that  he  was  placed  in  a
position of peril.  The record shows the  jury  was  well  aware  that  the
handgun was completely unrelated to evidence in  West’s  trial.   In  fact,
there was no evidence that a weapon of any  kind  was  involved  in  Hunt’s
killing.  We decline West’s invitation to speculate that the handgun  found
in the jury room had an impact on the  jury’s  verdict.   The  trial  court
correctly denied West’s motion for mistrial.
      Judgment affirmed.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
      [1]  Although Lindsey involved a newspaper  article  published  during
trial, the Lindsey procedure has been applied to a  variety  of  situations
where potentially improper juror influences exist.  See, e.g.,  Flowers  v.
State, 738 N.E.2d 1051, 1057-58 (Ind. 2000) (complaint that members of  the
jury  pool  may  have  overheard  prejudicial  conversation   between   two
discharged jurors), reh’g denied; Chambers v. State, 422 N.E.2d 1198,  1204
(Ind. 1981) (jurors heard out-of-court remarks by the  defendant  during  a
recess); Gee v. State, 271 Ind. 28, 389 N.E.2d  303,  313  (1979)  (juror’s
conversation on a public telephone overheard during trial recess); Bruce v.
State, 268 Ind. 180, 375 N.E.2d  1042,  1066  (1978)  (audience  discussion
overheard by jurors).