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).