ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Eric K. Koselke Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Eileen Euzen
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
GERALD MICKENS, )
)
Appellant (Defendant Below), )
)
v. ) Cause No. 49S00-0005-CR-325
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9909-CF-166512
February 27, 2001
SHEPARD, Chief Justice.
The jury in appellant Gerald Mickens’ trial reported back a unanimous
verdict of guilty on both counts, murder and carrying a handgun without a
license. As counsel polled the jury, however, one juror said she had been
intimidated by another and was unsure about voting to convict. The trial
judge took extensive measures, described below, to deal with this
development. We are satisfied that these measures were adequate and thus
affirm the convictions.
Pressure on a Juror
After deliberations, the jury announced to the trial court that it
found Mickens guilty. Upon polling the jury, however, the court discovered
that Juror #12 still had some uncertainty in her mind about the verdict.
The court instructed the jury to continue deliberations.
The same juror later informed the bailiff that a juror was threatening
her and calling her names. The trial court conducted an inquiry of Juror
#12. Juror #12 told the court: “The other black female in the jury has
been very angry at me because I’m not deciding what their side is deciding
and she’s been calling me names. She’s been saying I’m immature. And
basically, putting me under a lot of duress.” (R. at 334.) Upon
questioning by the court, the juror indicated that she understood that how
one decides to vote on a verdict is an individual decision and said she was
“taking it very seriously.” (R. at 335, 336.)
Then, at Juror #12’s request, the court replayed some testimony from
the trial and instructed the jury to “maintain civility during
deliberations.” (R. at 336, 338-39.) After the testimony was replayed,
another juror sent a note to the court stating that Juror #12 was “not
logical and not following the request of the Court.” (R. at 344.) The
bailiff told the court that Juror #12 had said that “she wished to be taken
off the Jury.” (Id.)
The court conducted another inquiry of Juror #12. Juror #12 indicated
that it was actually other jurors who wanted her off the panel, but that
the jury’s deliberations were now being conducted in a reasoned way and
that she wished to continue serving. The judge instructed her to rejoin
the other jurors and continue deliberations.
After further deliberations, the jury again found Mickens guilty on
both the murder and handgun charges. The court polled the jurors
individually, and each juror confirmed agreement with the verdict.
Mickens asserts that he was deprived of his Sixth Amendment right to a
fair and impartial jury when the trial court denied his request for a
mistrial based on juror misconduct during deliberations. On appeal, a
trial judge’s discretion in determining whether to grant a mistrial is
afforded great deference, because the trial judge “is in the best position
to gauge the surrounding circumstances of an event and its impact on the
jury.” Gregory v. State, 540 N.E.2d 585, 589 (Ind. 1989). We therefore
review the trial court’s decision solely for abuse of discretion.
Rodriguez v. State, 270 Ind. 613, 388 N.E.2d 493 (1979). After all, a
mistrial is an extreme remedy that is only justified when other remedial
measures are insufficient to rectify the situation. Szpyrka v. State, 550
N.E.2d 316, 318 (Ind. 1990)(citing Lee v. State, 531 N.E.2d 1165 (Ind.
1988)).
To prevail on appeal from the denial of a motion for mistrial, the
appellant must establish that the questioned conduct “was so prejudicial
and inflammatory that he was placed in a position of grave peril to which
he should not have been subjected.” Gregory, 540 N.E.2d at 589. The
gravity of the peril is determined by considering the misconduct’s probable
persuasive effect on the jury's decision, not the impropriety of the
conduct. Id.
The trial judge in this case proceeded in a thorough and thoughtful
way, confronting an unusual set of circumstances. He conducted two
separate inquiries of the beleaguered juror to confirm the importance of
the verdict being an individual decision, admonished the jury to maintain
civility during their deliberations, and polled the jurors independently
after the verdicts were announced to verify that the result was truly an
individual decision. The affected juror assured the trial court that she
understood how she voted was an individual decision, (R. at 335, 345-46),
and she agreed with the jury’s verdict, (R. at 349-50). Because the juror
“did not indicate any hesitation or unwillingness to continue deliberating
in this matter, and certainly, she knows that she doesn’t have to go the
route that the other Jurors do,” the court denied Mickens’ motion for
mistrial. (R. at 340, 342.)
This approach focused on the right questions, similar to those at
issue in a case in which two jurors received mysterious and possibly
intimidating phone calls. Rodriguez, 270 Ind. at 616, 388 N.E.2d at 495.
The jurors assured the court that the phone calls would not affect their
decision in the case, and the court specifically admonished the jurors to
not allow the calls to influence them during deliberations. We concluded
that any prejudicial effect these calls might have had on the jury was
cured by the court’s inquiries and admonishments. Id., 270 Ind. at 617,
388 N.E.2d at 496.
We reach the same conclusion in the case before us today. The road
here was a little bumpy, but the trial judge was satisfied that the verdict
represented the impartial and separate judgment of all the jurors. The
court justifiably denied Mickens’ motion for mistrial.
II. The Evidence on Self-Defense
Mickens also claims the State did not disprove his claim of self-
defense. The facts most favorable to the verdict revealed that in late
March 1999, sixteen-year-old Lanchester Whitlow (a.k.a. “Butter”)
threatened to “beat up” eighteen-year-old Gerald Mickens (“Bolo”) if
Mickens refused to pay off his debt to Whitlow. (R. at 180, 183-84, 193.)
On the night of March 30, 1999, Mickens escorted his fifteen-year-old
girlfriend, Sherea Upshaw, northbound on College Avenue to her home.
Meanwhile, Whitlow and his sixteen-year-old friend, Marcus Lewis, walked
southbound and encountered the couple.
As the parties approached one another, no words were exchanged.
Whitlow punched Mickens in the face once and Lewis struck him. Mickens
then stepped back and drew a gun. Lewis had seen Mickens’ hand in his
pocket earlier, but did not think anything of it until Mickens drew the
gun. Lewis ran from Mickens when he saw the gun; Whitlow remained
motionless. After hearing a shot, Lewis turned around in time to see
Mickens fire a second shot in the vicinity of where Whitlow lay. Whitlow
died from gunshot wounds to the head and abdomen.
The State charged Mickens with knowingly killing another human being
by shooting a deadly weapon. Mickens does not contest the adequacy of the
proof on these elements, arguing instead that the State unsuccessfully
rebutted his claim of self-defense.
In a homicide prosecution, a self-defense claim can prevail only if
the defendant had a “reasonable fear of death or great bodily harm.”
Brooks v. State, 683 N.E.2d 574, 577 (Ind. 1997). A defendant may use
deadly force to repel an attack only if such force is reasonable and
believed to be necessary. Crisler v. State, 509 N.E.2d 822 (Ind. 1987).
Indeed, “[t]he trier of fact is not precluded from finding that a defendant
used unreasonable force simply because the victim was the initial
aggressor.” Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997)(citations
omitted).
When a defendant asserts self-defense, the burden shifts to the State
to disprove one of the elements of self-defense beyond a reasonable doubt.
Id. “The State may carry its burden by rebutting the defense directly, by
affirmatively showing the defendant did not act in self-defense, or by
simply relying upon the sufficiency of its evidence in chief.” Lilly v.
State, 506 N.E.2d 23, 24 (Ind. 1987).
Here, the evidence favorable to the verdict suggests that Whitlow and
Lewis each punched Mickens once after approaching him and his girlfriend.
Neither of Mickens’ assailants possessed guns at the time of the
confrontation. Nevertheless, after being hit twice, Mickens backed away
from the aggressors, drew a gun, and shot Whitlow two times. According
to Lewis’ testimony, Mickens shot Whitlow again after his first shot
knocked the victim to the ground. (R. at 187.)
This was ample evidence from which a reasonable juror could conclude
beyond a reasonable doubt that Mickens used excessive force and could not
have entertained a good faith belief that he was in danger of death or
great bodily harm. Accordingly, we will not disturb the jury’s decision.
III. A Double Jeopardy Claim
Mickens also argues that his convictions for murder and carrying a
handgun without a license violate the Double Jeopardy Clause of the Indiana
Constitution. We have held:
[T]wo or more offenses are the “same offense” in violation of Article
I, Section 14 of the Indiana Constitution, if, with respect to either
the statutory elements of the challenged crimes or the actual evidence
used to convict, the essential elements of one challenged offense also
establish the essential elements of another challenged offense.
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).
Mickens concedes that the two convictions do not violate
the statutory elements test. (Appellant’s Br. at 11.) He contends instead
that the same evidence was used to convict him of both charges, thereby
contravening the actual evidence test. Under this test, “the actual
evidence presented at trial is examined to determine whether each
challenged offense was established by separate and distinct facts.”
Richardson, 717 N.E.2d at 53. The defendant must demonstrate that there is
a “reasonable, not speculative or remote,” possibility that the fact-finder
used the same evidentiary facts to establish the essential elements of both
offenses. Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999), cert. denied,
120 S.Ct. 2697 (2000). Mickens has failed to meet this burden.
To prove the murder, the State demonstrated that Mickens caused
Whitlow’s death by shooting him two times with a handgun. It also showed
that Mickens carried the gun as he approached Whitlow and Lewis. (R. at
185, 196, 201). Once the State proved that Mickens carried a handgun, the
burden shifted to Mickens to provide proof that he possessed a valid
license. Washington v. State, 517 N.E.2d 77 (Ind. 1987). See also Ind.
Code Ann. § 35-47-2-1 (West 1998). Mickens did not.
This claim resembles the one addressed in Ho v. State, 725
N.E.2d 988 (Ind. Ct. App. 2000). There, the Court of Appeals confronted a
double jeopardy claim arising from a defendant’s convictions for robbery
and carrying a handgun without a license. Id. at 992. Like Mickens, Ho
did not present evidence that he had a license for the handgun that he used
to commit robbery. The court concluded that “distinct evidentiary facts
were used to prove that Ho committed robbery while armed with a handgun,
while a lack of evidentiary facts was used to prove that Ho did not have a
license to carry that handgun.” Ho, 725 N.E.2d at 993. Consequently, the
court held that Ho unsuccessfully demonstrated “a reasonable possibility
that the same evidentiary facts may have been used to establish the
essential elements of each challenged offense.” Id.
This seems about right. Carrying the gun along the street
was one crime and using it was another. The Richardson actual evidence
test is not met, and we reject Mickens’ double jeopardy claim.
Conclusion
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.