ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY E. KIMMELL STEVE CARTER
South Bend, Indiana Attorney General of
Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JOSHUA WARNER, )
)
Appellant (Defendant), )
)
v. ) Cause No. 71S00-0011-CR-622
)
STATE OF INDIANA, )
)
Appellee (Plaintiff). )
____________________________________________________________________________
__
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John Marnocha, Judge
Cause No. 71D04-9905-CF-00314
August 15, 2002
SHEPARD, Chief Justice
Joshua Warner was found guilty of the murder and attempted robbery of
Jennifer Rokop and sentenced to sixty-five years imprisonment. Warner
challenges the State’s addition of two charges following a mistrial. We
reverse his attempted robbery conviction on these grounds, but otherwise
affirm.
Facts and Procedural History
The evidence at trial revealed that Warner assaulted Rokop in her
South Bend home on the morning of May 28, 1999. Rokop’s five-year-old
daughter Shelby was awakened by the attack. Shelby went downstairs and
observed a man near her mother. Shelby dressed herself and walked a
quarter mile to her father’s apartment. Her father called the police, who
found Rokop lying on the floor when they arrived. Rokop died from a knife
wound that severed her windpipe and partially severed her jugular vein.
The State charged Warner with Rokop’s murder. On the second day of
his first trial, the State disclosed additional footprint evidence that had
been inadvertently overlooked. Warner moved for mistrial, which the court
granted. Before the second trial began, the State asserted that it had
discovered new evidence that Warner’s crime also involved an attempted
robbery. The State amended its information soon thereafter, adding charges
of felony murder and attempted robbery.
A jury found Warner guilty on all three counts and the court
sentenced him to consecutive terms of fifty-five years for murder and ten
years for attempted robbery.[1]
Adding Charges After a Mistrial
Warner claims it was improper to permit the State to add charges of
felony murder and attempted robbery after the defense successfully sought a
mistrial. After the mistrial occurred, a previously unknown witness
contacted the State and offered to testify that Warner intended to rob
Rokop during the commission of the crime. The prosecution later argued
that this was newly discovered evidence entitling it to add the two
additional counts. The court allowed the amendment.
Indiana Code Ann. § 35-34-1-5(c) (West 2000) provides that “[u]pon
motion of the prosecuting attorney, the court may, at any time before,
during, or after the trial, permit an amendment to the indictment or
information in respect to any defect, imperfection, or omission in form
which does not prejudice the substantial rights of the defendant.”
Amendments that prejudice a defendant’s substantial rights have been
the subject of considerable judicial examination. In Murphy v. State, 453
N.E.2d 219, 223 (Ind. 1983), charges of burglary and theft were filed
against the defendant. At the first trial, the defense moved for a
mistrial because of a State witness’s improper identification procedures,
and the trial court granted the motion. Id. The State subsequently added
an habitual offender charge, raising the possible sentence from twelve to
forty years. Id. at 223, 226-27. No new evidence was discovered between
the mistrial and the amendment. Id. at 227.
We held that the State could not bring more serious charges against
the defendant when nothing has occurred except the successful exercise of
the right to a fair trial. Id. Elaborating on the holding, Justice
Prentice wrote:
Under such circumstances, fundamental fairness precludes a requirement
that Defendant show vindictive motivation or that the State be
permitted to show its absence. Were we to hold otherwise, an accused
in Defendant's predicament would be required to elect whether he would
submit to a trial had without due process of law or to a trial wherein
there was a potential for a much more severe penalty. Our concept of
justice simply will not sanction an implicit form of bargaining where
the accused must purchase due process of law.
Id. In other words, unless there is new evidence or information discovered
to warrant additional charges, the potential for prosecutorial
vindictiveness is too great for courts to allow the State to bring
additional charges against a defendant who successfully moves for a
mistrial.[2]
The State’s argument that the newly discovered witness warranted the
additional charges falls flat. This new witness was never called to
testify or provide information at Warner’s second trial. Instead, the
State argued that three pieces of evidence established the attempted
robbery charge: (1) Warner’s own statement that his alleged acquaintance
“started to rob her,” (R. at 2343); (2) Warner’s drug addiction and lack of
money, (R. at 2344); and (3) Warner’s statement to his girlfriend’s mother
that his motive was robbery, (R. at 1867, 2344-45). The State had all of
this information before the mistrial.
New evidence will permit the State to amend its charging
information in an appropriate circumstance. This is not one of them. It
is central to the theory in Murphy that if new evidence is discovered, it
contribute to the State’s case against the defendant. Whatever new
information the State may have received concerning Warner’s alleged
attempted robbery, it chose not even to use it at trial.
Having known of the attempted robbery evidence it used at the second
trial all along, notions of fundamental fairness dictate that it was
improper for the State to add the new counts after Warner exercised his
right to a fair trial. The court erred in permitting the amendment.[3]
In a related argument, Warner contends that re-trial constituted
double jeopardy because the State filed additional charges and previewed
his defense strategy. The events that led to the mistrial revolved around
the State’s identification of footprints at the crime scene. (See R. at
864-98.) Prior to trial, the defense was led to believe that a bloody
footprint found outside Rokop’s residence belonged to someone other that
Warner. (R. at 864-65; Appellant’s Br. at 16.) On the second day of the
initial trial, Warner’s attorney was notified of a second set of footprints
that were still in the process of being identified but apparently did not
belong to Warner. (R. at 863-64, 869, 876.) Based upon this surprise
evidence, the defense successfully moved for a mistrial. (R. at 864-98.)
A defendant forfeits the right to raise a double jeopardy claim if he
moves for or consents to a mistrial “unless the motion for mistrial was
necessitated by governmental conduct ‘intended to goad the defendant into
moving for a mistrial.’” Willoughby v. State, 660 N.E.2d 570, 576 (Ind.
1996) (citations omitted). The State must intentionally force the
defendant into moving for a mistrial before it is prohibited from a second
prosecution. Id.
The trial court explicitly found that the State did nothing
intentional to provoke Warner into seeking a mistrial. (R. at 895.)
Warner’s appellate counsel concedes as much, but argues that “the State
clearly was responsible for the circumstances which forced defense counsel
into moving for a mistrial.” (Appellant’s Br. at 17.) This is not enough.
Both the defense and the State erroneously believed, due to a mislabeling
at the police laboratory, that only one unidentified set of footprints
existed. (R. at 865, 877.) As soon as the State discovered this
misunderstanding, it notified the defense. (R. at 873.) The second trial
did not violate double jeopardy.
II. Bloody Gauze on the Trash Can
Warner next argues that police violated the Fourth Amendment by
improperly seizing evidence from a trash can next to his house and by
searching his premises with a warrant not supported by probable cause.
In the hours following Rokop’s murder, police learned that Warner and
Rokop had dated a year earlier. Rokop’s acquaintances suggested that
Warner was someone who might have reason to harm her. Police twice went to
Warner’s residence seeking to question him about the murder. On the
initial visit, the police left a message with Warner’s girlfriend. On
their second visit, they knocked on the front and side doors but received
no answer.
Warner kept his trash can near the side door; it was partially
concealed from view by a three-foot, L-shaped fence. (R. at 1633, 1639.)
One policeman noticed a “wad of gauze” that was stained reddish-brown
sitting atop the can. (R. at 1634.) Both officers who were on the scene
stated that based on their experience, they believed the gauze was blood-
stained. (R. at 87, 1649.)
Police called an evidence technician to Warner’s home to test the
stained gauze; it tested positive for blood. (R. at 1636.) Based upon
this information, the police obtained a search warrant and discovered blood
droplets in the house and bloody clothing hidden in the trash. Tests
revealed Rokop’s blood on the clothing. Over Warner’s motion to suppress
and timely objections, the State used all of this evidence at trial.
The Fourth Amendment protects “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV. Searches and seizures
“conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment – subject
only to a few specifically established and well delineated exceptions.”
Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (citations omitted).
One such exception is the plain view exception, which provides that if
police are lawfully in a position from which to view the object, if its
incriminating character is immediately apparent, and if the officers have a
lawful right of access to the object, they may seize it without a warrant.
Horton v. California, 496 U.S. 128, 135-37 (1990).
This case fits within the plain view exception. The police were
lawfully in a position to view the evidence. After twice finding Warner
away from home, they knocked on the side door, and from there saw the gauze
in plain view. The police were legitimately on the premise to question
Warner as part of their initial investigation. The plain view doctrine is
applicable when police are “not searching for evidence against the accused,
but nonetheless inadvertently come across an incriminating object.” Id. at
135 (citations omitted). Moreover, the incriminating character of the
evidence was immediately apparent to the police. Upon viewing the gauze,
both believed that the gauze was soaked with blood. (R. at 87, 1649.)
Having viewed the evidence in a public place from a lawful vantage point
and having immediately recognized its incriminating character, the police
properly seized the bloody gauze.
Warner’s claim that the search warrant used to discover his bloody
clothing hidden in the garbage was not supported by probable cause is also
without merit.
To be valid, a warrant and its underlying affidavit must comply with
the Fourth Amendment prohibition on unreasonable searches and seizures, as
well as Indiana constitutional and statutory law. Gray v. State, 758
N.E.2d 519, 521 (Ind. 2001). The task of the issuing magistrate is “simply
to make a practical, common-sense decision whether, given all the
circumstances set forth before him . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983).
As the reviewing court, our duty under the Fourth Amendment is to
determine whether the magistrate issuing the warrant had a “substantial
basis” for concluding that probable cause existed. Id. at 238-39. While
we give significant deference to the magistrate's determination, our search
for substantial basis must focus on whether “reasonable inferences drawn
from the totality of the evidence support the determination.” Houser v.
State, 678 N.E.2d 95, 99 (Ind. 1997).
When they sought the search warrant, police had the following
information: (1) a bloody crime scene in which the victim’s jugular vein
was partially severed, (R. at 12); (2) statements from Rokop’s friends that
Rokop and Warner had dated a year earlier, (R. at 12-13, 1628-29, 1647);
and (3) stained gauze from Warner’s residence that tested positive for the
presence of blood, (R. at 13, 1636).[4] Given this information, the judge
had a substantial basis for concluding that a fair probability existed that
contraband or evidence of the crime would be found at Warner’s residence.
The court properly denied Warner’s motion to suppress the evidence
collected under the search warrant.
III. Allegations of Juror Misconduct
Warner next argues that he is entitled to a new trial because of juror
misconduct. In answering a questionnaire, one juror responded that none of
her close family members had been victimized by a serious crime. The juror
also remained silent when the court asked prospective jurors a similar
question.[5] It later came to light that the juror’s half-sister had been
murdered a year or two earlier.
Generally, proof that a juror was biased against the defendant or lied
during voir dire entitles a defendant to a new trial. Lopez v. State, 527
N.E.2d 1119, 1130 (Ind. 1988), grant of post-conviction relief rev’d in
part by 676 N.E.2d 1063 (Ind. Ct. App. 1997).
A defendant seeking a new trial because of juror misconduct must show gross
misconduct that probably harmed the defendant. Reed v. State, 479 N.E.2d
1248, 1251 (Ind. 1985). We review the trial judge's determination on these
points for abuse of discretion. Lopez, 527 N.E.2d at 1130.
After the juror’s omission was discovered, the trial court questioned
her on the matter:
Court: Did [your sister’s murder] in any way affect your ability
to render a fair and impartial verdict, based upon the
evidence that you heard in court and the law upon which you
were instructed?
Juror: No, it did not.
Court: Is there a reason that you . . . did not disclose that
information to the Court or to the attorneys during the
voir dire that occurred on May 22?
Juror: No. After – I guess I just blanked that out. I mean,
there is nothing I can do about it, I can’t change what
happened to her or let my feelings towards anybody else go
towards anything else. I don’t do that.
. . .
Court: Is there a reason that you answered the question
negatively in the jury questionnaire?
Juror: I think I might have just – This was sent to where I used
to live and my old roommate had it for a while and
evidently what I did I just got it and just hurried up and
filled it out . . . .
(R. at 353-54.)
After considering the defense’s argument and reviewing the juror’s
responses, the court concluded that the juror did not deliberately withhold
this information, that she was not biased against Warner, and that Warner
received a fair trial. (R. at 482.)
We are not persuaded that the trial court abused its discretion.
Although it was wrong for the juror to omit this information from her
questionnaire, we cannot conclude that the omission rose to the level of
gross misconduct. She testified under oath that this prior incident did
not affect her impartiality. Moreover, given the amount of evidence
presented by the State, Warner was not harmed. Rokop’s daughter described
a lone assailant substantially similar to Warner’s appearance; Warner’s
knife was embedded in Rokop’s neck; he admitted being at the scene of the
crime; and police found Warner’s clothes covered with Rokop’s blood hidden
in his trash. We see very little likelihood that the juror’s omitted
response in any way affected the verdict.
IV. Continuance at Sentencing
Warner sought a postponement of the sentencing hearing so that he
could obtain a psychiatric evaluation to assess his risk of future
dangerousness. The court denied this request, stating that the
psychological profile would not “be helpful for my determination.” (R. at
2451.) Warner contends this was error.
The determination of whether to grant a continuance lies within the
sound discretion of the trial court when the motion is not based upon
statutory grounds. Brewer v. State, 275 Ind. 338, 368, 417 N.E.2d 889, 906
(1981), cert. denied, 458 U.S. 1122 (1982). There is a strong presumption
that the trial court properly exercised its discretion. Elmore v. State,
657 N.E.2d 1216, 1218 (Ind. 1995).
In this case, Warner contends that a continuance was required to
permit an investigation into his potential for future dangerousness and his
prior mental condition. Nevertheless, he tells us nothing to indicate what
he thinks the evaluation would have uncovered or how it would have affected
his sentence. As a result of our decision to reverse his attempted robbery
conviction, Warner will receive the presumptive term of fifty-five years
for murder. Counsel has not suggested any particular way that a
psychological evaluation would have led to a lesser sentence. We find no
abuse of discretion here. See Brewer, 275 Ind. at 368, 417 N.E.2d at 906
(denial of motion grounded upon sheer speculation that some benefit might
flow is not arbitrary or abusive).
Conclusion
We remand to the trial court with instructions to vacate Warner’s
conviction for attempted robbery. In all other respects, we affirm the
judgment.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] The court dismissed the felony murder conviction on double jeopardy
grounds.
[2] In Blackledge v. Perry, 417 U.S. 21, 28 (1974), overruled on other
grounds, Bordenkircher v. Hayes, 434 U.S. 357 (1978), the U.S. Supreme
Court expressed similar views, holding that a defendant “is entitled to
pursue his statutory right to a trial de novo, without apprehension that
the State will retaliate by substituting a more serious charge for the
original one, thus subjecting him to a significantly increased potential
period of incarceration.”
[3] We therefore need not address Warner’s claim that insufficient evidence
supported his attempted robbery conviction. (Appellant’s Br. at 13.)
[4] Although the probable cause affidavit supporting the search warrant is
not in the record, testimony at trial reveals that at the very least this
information was known to the police before seeking the search warrant. It
is reasonable to conclude that this information supported the affidavit.
[5] The precise question asked was: “Have any of you . . . [had] close
friends or family members that have been victims of a crime that you think
would have some impact on you?” (R. at 427-28.)