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Randolph v. State

Court: Indiana Supreme Court
Date filed: 2001-09-28
Citations: 755 N.E.2d 572
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ATTORNEY FOR APPELLANT:                 ATTORNEYS FOR APPELLEE:

CHARLES E. STEWART, JR.                 STEVE CARTER
Appellate Public Defender                    Attorney General of Indiana
Crown Point, Indiana
                                        JAMES A. JOVEN
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE


                          SUPREME COURT OF INDIANA



MARSHALL RANDOLPH,                )
                                        )
      Appellant-Defendant,              )
                                        )    Supreme Court Cause Number
            v.                          )    45S00-0008-CR-465
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee-Plaintiff.                    )


                     APPEAL FROM THE LAKE SUPERIOR COURT
                    The Honorable Richard W. Maroc, Judge
                       Cause No.  45G01-9808-CF-156039



                              ON DIRECT APPEAL


                             September 28, 2001

RUCKER, Justice
      A jury convicted Marshall Randolph of murder in the shooting death  of
Anthony Hicks.  In this direct appeal, Randolph raises two issues, which  we
rephrase as:  (1) did the trial court err in denying Randolph’s  motion  for
a mistrial; and (2) was the evidence sufficient to negate  Randolph’s  claim
of self-defense.  We affirm.

                                    Facts


      The essential facts of  this  tragic  and  senseless  killing  are  as
follows.  In the evening hours of August  1,  1998,  Randolph  approached  a
group of young men that included Hicks and inquired which one of  the  group
had been “messing with” his sister.  R. at 269, 368.  The record shows  that
earlier in the day Marcus Holloway, a member of the  group,  allegedly  made
an untoward remark directed at Randolph’s  sister.   After  an  exchange  of
words between Holloway and Randolph, the matter seemed to have  been  closed
when Randolph said, “You don’t mess with my sister and my sister won’t  mess
with you.”   R.  at  270.   However,  Randolph  continued  his  belligerence
exclaiming, “Next time I come out here.  It is not  going  to  be  talking.”
R. at 270.  At that point Hicks intervened and asked why Randolph  had  come
into his  neighborhood  starting  trouble  and  that  no  one  had  bothered
Randolph’s sister.  The two then exchanged words, and  Randolph  produced  a
handgun pointing it at Hicks.  When Hicks raised his hands saying, “Do  what
you got to do,” Randolph fired three times.  R. at 372.   Hicks  died  as  a
result of a gunshot wound to the chest.  Randolph  was  eventually  arrested
and charged with murder.  After a jury trial he was  convicted  as  charged,
and the trial court sentenced him to  fifty-two  years  imprisonment.   This
direct appeal followed.

                                 Discussion


                                     I.

      Randolph contends the trial court erred in denying his  motion  for  a
mistrial.  The facts are these.  In its case in chief, the State  called  to
the stand investigating officer Danny Sorbello.  The officer testified  that
during the course of his investigation he obtained the name of  Randolph  as
a potential suspect in the shooting of Hicks.  The following  exchange  then
occurred:
      Q.    Did there come a point when you went  looking  for  the  suspect
      that you had, Marshall Randolph?


      A.    After myself and Sergeant Gault got the  name  of  the  possible
      suspect, we then went to our B of I and we looked this  individual  up
      to see if we can get a picture of him so that we  would  know  who  we
      would be looking for and we weren’t able to get a picture - -


R. at 221-22.  At that point defense counsel  objected,  asked  to  approach
the bench, and outside the presence of the jury moved for a  mistrial.   The
trial court denied the motion but agreed to give  “any  kind  of  admonition
you like or none if you’d like that.”   R.  at  228.  Counsel  declined  the
offer of an admonishment saying it would likely rather hurt than  help.   R.
at 228-29.  In this appeal, Randolph  contends  the  trial  court  committed
reversible error in denying the mistrial motion.
      “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).  “A timely and  accurate  admonition
is presumed to cure any error in the admission  of  evidence.”   Heavrin  v.
State, 675 N.E.2d 1075, 1084  (Ind.  1996)  (quotation  omitted).   However,
refusal of an offer to admonish the jury constitutes a waiver of  any  error
in the denial of the motion.  Boyd v. State, 430  N.E.2d  1146,  1149  (Ind.
1982); Hicks v. State, 272 Ind. 350, 397 N.E.2d 973, 975  (1979);  see  also
Walker v. State, 497 N.E.2d 543, 544 (Ind. 1986) (finding  trial  court  did
not abuse its discretion in denying  motion  for  mistrial  where  defendant
declined trial court’s request to  admonish  the  jury).   Because  Randolph
refused the trial court’s offer to admonish the jury, the  issue  is  waived
for review.
      Waiver notwithstanding, Randolph cannot prevail on the merits  of  his
claim.  The decision to grant or deny a motion for a  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.   Wright  v.  State,  593  N.E.2d
1192, 1196 (Ind. 1992).  To prevail, the appellant must  establish  that  he
was placed in a position of grave peril to which he  should  not  have  been
subjected.  Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001).
      Use of the term “mug shot” is generally prohibited because it  may  be
indicative of prior criminal history.  Coleman v.  State,  490  N.E.2d  325,
328 (Ind. 1986); Vanzandt v. State, 731  N.E.2d  450,  454  (Ind.  Ct.  App.
2000), trans. denied.  In this case the record is  clear  that  the  officer
did not use the term “mug shot,” and in his brief  to  this  Court  Randolph
makes no such claim.  Rather, he contends that the effect of  the  officer’s
testimony was “to suggest to  the  jury  that  the  defendant  has  a  prior
criminal record.”  Br. of  Appellant  at  6.   We  disagree.   Instead,  the
record supports just the opposite.  The officer testified that  although  he
looked, he was unable to find Randolph’s picture at the “B  of  I.”   R.  at
222.  Assuming, as counsel argued at trial, that  the  jury  was  aware  the
acronym stood for “Bureau of Investigation,” it is more likely than not  the
jury concluded Randolph had no criminal  record.   Randolph  has  not  shown
that he was placed in a position of grave peril  necessitating  a  mistrial.
We thus find no error on this issue.
                                     II.
      Randolph next contends the State failed to negate his claim  of  self-
defense.  Pointing to his own testimony  in  support,  Randolph  alleges  he
only produced his handgun after he saw Hicks draw what  he  believed  was  a
gun.
      A valid claim of self-defense is legal justification for an  otherwise
criminal act.  Wallace v. State, 725 N.E.2d 837, 840 (Ind.  2000).   When  a
defendant raises the claim of self-defense, he is required to show:  (1)  he
was in a place where he had a right to be; (2) he acted without  fault;  and
(3) he had a reasonable fear of death or great bodily harm.  Id.  The  issue
on appellate review is typically  whether  the  State  presented  sufficient
evidence to support a finding that at least  one  of  the  elements  of  the
defendant’s self-defense claim was negated.  Id.   The  standard  of  review
for a challenge to the sufficiency of the evidence to rebut a claim of self-
defense is the same as the standard for  any  sufficiency  of  the  evidence
claim.  Id.  We neither reweigh the evidence nor judge  the  credibility  of
witnesses.  Id.  If there is  sufficient  evidence  of  probative  value  to
support the conclusion of the trier of fact, then the verdict  will  not  be
disturbed.  Id.
      One of the State’s key  witnesses,  Marcus  Holloway,  testified  that
Hicks raised his hands when Randolph pointed his weapon.   R.  at  372.   In
turn, the only evidence supporting a claim of  self-defense  was  Randolph’s
own testimony.  Further, firing multiple shots undercuts a  claim  of  self-
defense.  Mayes v. State, 744  N.E.2d  390,  395  n.2  (Ind.  2001).   Three
eyewitnesses testified that Randolph fired multiple shots at  Hicks.  R.  at
174-75, 273, 373.  The jury was free to disbelieve  Randolph’s  self-serving
testimony, which it apparently did.

                                 Conclusion


      We affirm the judgment of the trial court.

SHEPARD, C.J., and SULLIVAN, J., concur.

DICKSON, J., and BOEHM, J., concur as to Part II and concur in result as  to
Part I believing that refusal to accept an admonition waives the issue  only
if the admonition would cure the problem.