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Gill v. State

Court: Indiana Supreme Court
Date filed: 2000-06-30
Citations: 730 N.E.2d 709
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Attorney for Appellant

Marce Gonzalez, Jr.
Appellate Public Defender
Merrillville, Indiana
Attorneys for Appellee

Jeffery A. Modisett
Attorney General of Indiana

Thomas D. Perkins
Deputy Attorney General
Indianapolis, Indiana



      IN THE
      INDIANA SUPREME COURT

RYAN EUGENE GILL,
      Appellant (Defendant below),


      v.

STATE OF INDIANA,
      Appellee (Plaintiff below).



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)     Supreme Court No.
)     45S00-9809-CR-512
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      APPEAL FROM THE LAKE COUNTY SUPERIOR COURT
      The Honorable Joan Kouros, Judge
      Cause No. 45G03-9604-CF-00066



                              ON DIRECT APPEAL



                                June 30, 2000

SULLIVAN, Justice.


      Defendant Ryan Eugene Gill was convicted  and  sentenced  for  killing
another man while attempting to  rob  him  of  his  gun.   He  now  appeals,
claiming that the admission of improper character evidence on  two  separate
occasions warranted a mistrial.  He also  challenges  the  general  judicial
practice of jury admonishments.  Finding  these  claims  not  to  have  been
properly preserved at trial to permit appellate review, we affirm.



      This Court has  jurisdiction  over  this  direct  appeal  because  the
sentence exceeds 50 years.  Ind. Const. art. VII, § 4; Ind.  Appellate  Rule
4(A)(7).




                                 Background


      The facts most favorable to the verdict indicate  that  on  March  30,
1996, Defendant Ryan Eugene Gill, Ronald  Watkins,  Terrence  Lacefield  and
others attended a birthday celebration at a house located in Gary,  Indiana.
 The birthday party was in honor of twin brothers, Donald Bowens and  Ronald
Bowens.  Darryl Clark, carrying a new nickel-plated  handgun  with  a  pearl
handle, later arrived at the party to purchase cocaine.  While carrying  out
this transaction, Clark dropped his money on the floor.  As he  leaned  over
to pick it up, his new gun fell to the floor.  Defendant,  standing  nearby,
noticed Clark’s gun.  Donald Bowens heard Defendant say, “I’m going  to  get
that pistol.  That’s my pistol.”   Ronald  Bowens  also  overhead  Defendant
announce, “I got to  have  it.”   Defendant  told  Watkins  that  he  wanted
Watkins to help him steal the gun from Clark.  Defendant was  armed  with  a
.357 magnum revolver and  promised  Watkins  that  he  would  give  him  the
revolver if Watkins would help with the robbery.


      Later  in  the  evening,  Defendant  and  Clark  engaged  in  a  short
conversation during which Clark lifted up his shirt to  show  Defendant  his
gun.  Defendant reached for Clark’s handgun and then a struggle ensued.   At
that point, Watkins aimed the .357 magnum revolver at  Clark,  ordering  him
to stop the altercation.  Clark released his own gun, grabbed for  the  .357
magnum revolver, and then Watkins and Clark began  wrestling.  Watkins  fell
over a couch and  Clark  obtained  control  of  the  gun  and  aimed  it  at
Watkins’s head.  Watkins heard  one  shot,  looked  up,  and  saw  Defendant
pointing a gun at Clark.  Wounded from a  gunshot,  Clark  fell  on  top  of
Watkins.  Clark then jumped up and raced to a back room  in  an  attempt  to
escape.


      Defendant followed Clark and started pushing on the  back  room  door.
The door opened slightly, someone pointed Clark’s  handgun  into  the  room,
and fired several shots  directly  at  Clark.   One  eyewitness,  Lacefield,
identified  Defendant  as  the  perpetrator   who   shot   Clark.    Shortly
thereafter, Clark died from gunshot wounds to the head and abdomen.


      On July 1, 1998, a jury found Defendant guilty  of  Felony  Murder.[1]
On August 5,  1998,  the  trial  court  sentenced  Defendant  to  55  years.
Defendant now appeals his murder conviction.

      We will recite additional facts as necessary.


                                 Discussion



      Defendant contends that the trial court  erred  twice  in  failing  to
grant his motions for a mistrial after two State witnesses, brothers  Donald
Bowens and Ronald Bowens, testified as to threats made to them by  Defendant
prior to the murder.  He specifically argues that this evidence  constituted
character evidence prohibited under Indiana Evidence Rule 404(b).


                                      I


      On direct-examination, the prosecutor questioned State witness  Donald
Bowens who offered the following testimony:
      [Prosecutor:]    Other than words spoken, sir, were there  any  sounds
                       that you heard after this pistol falling out at  your
                       house that drew your attention?


                                     ***


      [Donald Bowens:] Yes.


      [Prosecutor:]          And what was that sound, if you know, sir?


      [Defense Counsel:]     That’s leading, Your Honor.  Hearsay.


      [The Court:]           Overruled.  You can answer that.

      [Donald Bowens:] Okay, [Defendant]  had  slapped  my  brother  [Ronald
                       Bowens]  and  threatened  him,  told  him  he   would
                       killed[sic] him.

(R. at 125-26) (emphasis added).


      Immediately after this colloquy, defense counsel moved for a  mistrial
on grounds that  Defendant’s  out-of-court  statement  threatening  to  kill
Ronald  Bowens  constituted  inadmissible  hearsay.[2]   The   trial   judge
immediately  admonished  the  jury.[3]   On  appeal,  Defendant  advances  a
different argument: that the evidence was inadmissible under  Ind.  Evidence
Rule 404(b)[4] because Defendant’s threats constituted prior  uncharged  bad
acts.  It is well-settled law in Indiana that a defendant may not argue  one
ground for objection  at  trial  and  then  raise  new  grounds  on  appeal.
Willsey v. State, 698 N.E.2d 784 (Ind. 1998) (citing to  Marshal  v.  State,
621 N.E.2d 308, 316 (Ind. 1993)).   Because  Defendant  did  not  object  at
trial to the admissibility  of  the  evidence  on  the  basis  of  character
evidence, he has waived this claim of error for appellate review.


                                     II

      With respect  to  the  testimony  of  the  other  State  witness,  the
prosecutor elicited the following information from Ronald Bowens  on  direct
examination:


      [Prosecutor]:    Did you and [Defendant] talk about anything else that
                       night?


      [Ronald Bowens]: He was talking about killing me next.

      [Prosecutor]:          Now when was this?

      [Defense Counsel]:     I’m going to object.  May we approach?

(R. at 190) (emphasis added).

      Outside the presence of the jury, the judge and lawyers discussed  the
matter.  Defense counsel argued that the statement constituted  inadmissible
evidence of prior wrongful acts and moved for a mistrial.  The  trial  court
acknowledged the objection and instructed the prosecutor to focus  the  line
of questioning on the murder.  However, finding  that  the  matter  did  not
warrant a mistrial, the court denied defense counsel’s motion.   Immediately
after the ruling, defense counsel affirmatively  requested  that  the  court
admonish the jury.  The court granted the request and  instructed  the  jury
to “disregard the answer that this witness gave.   You’re  not  to  consider
that in any way.”  (R. at 192.)   The  prosecutor  resumed  questioning  and
limited the inquiry in accordance with the court’s instruction.


      On appeal, Defendant asserts that the court’s admonishment of the jury
instructing  them  to  disregard  the  testimony  of   Ronald   Bowens   was
“insufficient  to  overcome  the  prejudice  of  the   improper   evidence.”
Appellant’s Br. at 8.  And Defendant broadly challenges the entire  judicial
practice of admonishing  a  jury,  arguing  that  it  amounts  to  a  “legal
fiction” which  “simply  do[es]  not  work,”  and  “actually  increases  the
prejudicial results.”  Id. at 8, 9 (emphasis in original).  To lend  support
to his argument, Defendant relies upon various social  science  studies  and
law articles that seriously question the  efficacy  of  jury  admonishments.
Id. at 9.  These materials are interesting and suggest at a minimum  that  a
court construct and deliver jury admonishments with care  and  precision.[5]
But here we have no grounds on which to reverse.   Defense  counsel  himself
requested the admonishment.  This  suggests  to  us  that  he  thought  this
measure would be helpful rather than having  a  prejudicial  effect  on  the
jury.  Furthermore,  defense  counsel  made  no  further  objection  to  the
witness’s statement after the court’s admonishment, and  he  did  not  raise
the argument that admonishments  fail  to  remedy  the  jury’s  exposure  to
inadmissible  evidence.   Appellate  counsel  cannot  now  argue  that  this
traditional judicial practice “simply does not work.”


                                     III


      In any event, the testimony of the Bowen  brothers  does  not  warrant
reversal of Defendant’s conviction.  The denial of a  mistrial  lies  within
the sound discretion of the trial court, and reversal is  required  only  if
the defendant demonstrates that he was so prejudiced that he was  placed  in
a position of grave peril.  Thompkins v. State, 699 N.E.2d  394,  398  (Ind.
1996) (citing Campbell v. State, 622 N.E.2d 495, 501 (Ind.  1996);  Bradford
v. State, 453 N.E.2d 250,  252  (Ind.  1983)).   The  gravity  of  peril  is
measured by the probable persuasive effect on the  jury’s  decision.   Steel
v. State, 672 N.E.2d 1348, 1350 (Ind. 1996). The trial judge is in the  best
position to gauge the surrounding circumstances and the potential impact  on
the jury when deciding whether a mistrial is  appropriate.   See  Thompkins,
699 N.E.2d at 398; Roche v. State, 596 N.E.2d 896, 902 (Ind. 1992).


      Defendant has not shown that he was so prejudiced that he  was  placed
in a position of grave peril as a result of the admission  of  his  threats.
In fact, we conclude that  any  claimed  error  in  the  admission  of  this
character evidence was harmless in that it did not  affect  the  substantial
rights of Defendant.  See Ind. Trial Rule 61; Fleener v. State,  656  N.E.2d
1140,  1142  (Ind.  1995).   The  State  presented  the  testimony  of   two
witnesses, which revealed Defendant’s  desire  to  have  the  victim’s  gun.
Another witness testified to Defendant’s  plan  to  get  the  gun  from  the
victim.  Finally, one witness to  the  crime  identified  Defendant  as  the
perpetrator who shot and killed the victim.  In  light  of  the  substantial
evidence establishing Defendant’s guilt,  admission  of  character  evidence
would not have had a probable persuasive  effect  on  the  jury’s  decision.
Under these circumstances, we agree with the trial court’s decision  that  a
mistrial was not appropriate.




                                 Conclusion


      We affirm the trial court’s judgment.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

-----------------------
[1] Ind. Code § 35-42-1-1 (1993).
[2] Out-of-court statements  offered  to  prove  the  truth  of  the  matter
asserted constitute hearsay.   See   Ind.  Evidence  Rule  801.   Generally,
hearsay statements are not admissible unless the statements  fall  within  a
prescribed exception.  See Ind. Evidence Rule 802.

[3] The trial judge stated, “The jury is to disregard what the  witness  has
said.  It’s inappropriate.”  (R. at 127.)

[4] Indiana Evidence Rule 404(b) provides in pertinent  part:  “Evidence  of
other crimes, wrongs, or acts is not admissible to prove the character of  a
person in order to show action in conformity therewith.   It  may,  however,
be  admissible  for  other  purposes,  such  as  proof  of  motive,  intent,
preparation, plan, knowledge, identity, or absence of mistake or accident  .
. . .”
[5] See 12 Robert Lowell Miller, Jr., Indiana Practice  §  105.101,  at  103
(2d ed. 1995), for a discussion on this point.