ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
David P. Freund
Deputy Public Defender
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
RICKY LEE JACKSON, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 83S00-9812-CR-770
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE VERMILLION CIRCUIT COURT
The Honorable Bruce V. Stengel, Judge
Cause No. 83C01-9803-CF-20
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
May 19, 2000
BOEHM, Justice.
Ricky Lee Jackson was convicted of the murder of his wife. He was
sentenced to fifty-five years imprisonment. In this direct appeal, he
raises five issues for review: (1) whether the trial court improperly
dismissed a juror; (2) whether the trial court abused its discretion in
permitting the prosecution to cross- examine Jackson regarding a prior
battery against the victim; (3) whether the trial court abused its
discretion in refusing to allow Jackson to impeach a prosecution witness
with extrinsic evidence; (4) whether the evidence was sufficient to support
a conviction of murder; and (5) whether the trial court abused its
discretion in sentencing him. We affirm the conviction and remand for
resentencing on this record.
Factual and Procedural Background
On the morning of March 20, 1998, at approximately 8:00 a.m.,
Jackson’s wife Debbie refused to get out of bed. This triggered an
argument that continued as Jackson and his wife made three or four circuits
of the downstairs of their house. Jackson then looked for his gun to
“scare her with.” He became angry when he did not find it in the top
drawer of their dresser. Debbie located it in the second drawer, handed it
to him, and proceeded to the kitchen. Jackson followed. Jackson testified
that he then cocked the gun, with an eye to shooting it at the ceiling.
According to Jackson, he decided not to fire, but as he was lowering the
gun, it discharged, striking Debbie in the head. When Deputy Larry Keller
arrived at the scene, Jackson was holding Debbie’s head in his hands.
Keller ordered Jackson to move away from Debbie, but Jackson responded that
if he did Debbie would bleed to death. Keller observed that the living
room was in a disarray—a table had been pushed up against the couch and the
items on it had fallen to the floor. Keller also observed that the
couple’s top dresser-drawer was broken and that the pewter buckle on
Jackson’s belt was broken in half.
Debbie died later that day as a result of the gunshot wound. Jackson
maintained throughout the investigation and trial that the shooting was
accidental. The jury convicted him of murder.
I. Dismissal of Juror
The morning after opening statements were given, a teacher-juror
asked to be excused, stating that she believed Jackson’s nephew was one of
her students. The trial court announced that it would bring her in for
questioning, but would not allow the parties to question her. No objection
was made at that point. The juror told the court she had just discovered
this relationship and thought it would be difficult for her to be fair and
impartial. After the trial court had excused the juror, defense counsel
moved for a mistrial, arguing that the defense should have been given the
opportunity to question the juror.
The trial court’s inquiry consisted of a few questions establishing
that the juror felt unable to be fair and impartial. We agree with Jackson
that the better course of action for the trial court would have been to
allow the parties to question the juror, at a minimum to confirm whether
the factual predicate of her concern—that she was a teacher of a nephew of
Jackson’s–was true. See Harris v. State, 659 N.E.2d 522, 525 (Ind. 1995)
(juror was questioned by trial court and both parties before being
dismissed); Threats v. State, 582 N.E.2d 396, 398 (Ind. Ct. App. 1991)
(same).
Jackson argues that excusing this juror violated Trial Rule 47(B),
which provides for replacement when a juror is “unable or disqualified to
perform” his or her duties. Jackson does not allege that the trial court’s
decision to dismiss the juror resulted in the impaneling of a biased juror.
Rather, he alleges that the procedure the trial court followed was
reversible error because it did not allow him to question the juror who was
dismissed. However, because no objection was lodged to this procedure
before the juror had been dismissed, that issue is not preserved, and the
only issue for appeal is whether a mistrial was required.
The decision to grant or deny a motion for a mistrial lies within the
discretion of the trial court. Heavrin v. State, 675 N.E.2d 1075, 1083
(Ind. 1996). A mistrial is an extreme remedy granted only when no other
method can rectify the situation. Id. On appeal, in order to succeed from
the denial of a mistrial, the defendant must demonstrate that the conduct
complained of was so prejudicial that it had a probable persuasive effect
on the jury’s decision. See James v. State, 613 N.E.2d 15, 22 (Ind. 1993);
Kelley v. State, 555 N.E.2d 140, 141 (Ind. 1990). At the time Jackson
moved for a mistrial, the trial court’s only alternatives were to send an
already impaneled jury home or to deny the motion. Because there was no
showing of any prejudice to Jackson, the trial court did not abuse its
discretion in denying Jackson’s motion.[1]
II. Cross-Examination Regarding Prior Battery
Prior to trial, Jackson filed a request for notice of any proposed
Rule 404(b) evidence. The State responded by announcing its intention to
introduce evidence that Jackson had been arrested for committing a battery
on Debbie in August 1996. Jackson filed a motion in limine, requesting
that the evidence be excluded. The trial court concluded that, given
Jackson’s contention that the killing was accidental, the evidence was
relevant to prove motive. The trial court nevertheless ruled that the
evidence should be excluded under Evidence Rule 403 because the danger of
unfair prejudice substantially outweighed its probative value. The trial
court then stated that, although the State would not be allowed to use the
evidence in its case-in-chief, the evidence could have some “rebuttal
value” and the issue might need to be revisited.
On direct examination, Jackson testified to his love for Debbie
throughout their twenty-one years of marriage, and to his love for her on
the day he shot her. On cross-examination, the State asked him if had also
loved his wife on March 3, 1996.[2] Defense counsel objected, and at
a hearing outside the presence of the jury, the State argued that evidence
of the battery was admissible to rebut Jackson’s contention that he had
always loved his wife. The trial court agreed that “the statement by the
defendant that he loved his wife every day of their marriage calls in the
question of that relationship so I will overrule the objection.” Jackson
challenges admission of that evidence.
Under Evidence Rule 404(b), “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
action in conformity therewith. . . . [but] may, however, be admissible [to
prove] motive, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident . . . .” In order to admit 404(b) evidence, the
court must (1) determine that the evidence is relevant to a matter at issue
other than the defendant’s propensity to commit the charged act, and (2)
balance the probative value of the evidence against its prejudicial effect
pursuant to Rule 403. Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind.
1999); Hicks v. State, 690 N.E.2d 215, 222-23 (Ind. 1997). This balancing
is reviewed for an abuse of discretion. See Byers, 709 N.E.2d at 1026-
27; Hicks, 690 N.E.2d at 223. In addition, otherwise inadmissible evidence
may become admissible where the defendant “opens the door” to questioning
on that evidence. See Gilliam v. State, 270 Ind. 71, 76, 383 N.E.2d 297,
301 (1978).
Jackson cites Gilliam, in which this Court held that “the evidence
relied upon to ‘open the door’ must leave the trier of fact with a false or
misleading impression of the facts related.” 270 Ind. at 76-77, 383 N.E.2d
at 301. According to Jackson, because there was other evidence that
demonstrated that Jackson’s marriage to Debbie was not always peaceful, and
because he merely “professed his love” for Debbie, the jury was not left
with a false impression that they did not have marital conflicts, and
evidence of the battery was inadmissible.
The trial court acted well within its discretion in making the
pretrial determination that although the battery was relevant to establish
motive, the prejudice from admitting the battery outweighed its probative
value. It was also well within the discretion of the trial court to
determine that the unfair prejudice to Jackson did not substantially
outweigh the relevance of the battery and allow this evidence as cross-
examination on the point of Jackson’s professed love for his wife.
Although it was clear that the Jacksons’ marriage was imperfect, cross-
examination on the battery was nevertheless relevant to rebut the
suggestion, or the “false impression,” that Jackson would not knowingly or
intentionally harm someone he loved.[3]
III. Impeachment on Collateral Issue
Deputy Larry Keller, the first person to arrive at the Jackson home
after the shooting, found Jackson holding Debbie’s head in an attempt to
stop the bleeding. At trial, Keller was cross-examined regarding a
conversation Keller had with Jackson’s sister in which he allegedly
surmised that the shooting was accidental:
Q. Subsequently calling your attention to July 11th, 1998, did you
tell his sister, Karen Lubovich, that you thought that this was
an accident?
A. I told . . . let me try that again . . . I told her I was not
sure.
Q. On July 11th, 1998, you told her you weren’t sure.
A. I don’t recall the date. I remember talking to her.
Q. But my question is did you tell her you thought it was an
accident?
A. I don’t recall.
Jackson argues that the trial court erred in refusing to allow
defense counsel to call Lubovich for the purpose of impeaching Keller’s
testimony with a prior inconsistent statement. The State responds that
Lubovich’s testimony would have constituted impeachment on a collateral
matter, and that this is impermissible under Indiana Evidence Rule 613(b).
That Rule provides: “Extrinsic evidence of a prior inconsistent statement
by a witness is not admissible unless the witness is afforded an
opportunity to explain or deny the same and the opposite party is afforded
an opportunity to interrogate the witness thereon, or the interests of
justice otherwise require.” Impeachment on collateral matters was
impermissible under Indiana decisional law before the adoption of the Rules
of Evidence. See, e.g., Smith v. State, 455 N.E.2d 346, 354 (Ind. 1983).
Impeachment by extrinsic evidence of a prior inconsistent statement on a
collateral matter is also barred under Rule 613(b) of the Federal Rules of
Evidence, which is identical to the Indiana Rule. See 4 Jack B. Weinstein
& Margaret A. Berger, Weinstein’s Federal Evidence § 613.05[1] (2d ed.
2000); United States v. Beauchamp, 986 F.2d 1, 3-4 (1st Cir. 1993) (“[W]hen
a witness testifies to a collateral matter, the examiner ‘must take [the]
answer,’ i.e., the examiner may not disprove it by extrinsic evidence.”)
(citations omitted). Although we have not had occasion to address
impeachment on collateral matters since the adoption of the Indiana Rules
of Evidence, we see no reason to depart from the well established common
law rule that this is barred. See 13 Robert Lowell Miller, Jr., Indiana
Practice § 613.209 (2d ed. 1995) (“Rule 613 does not authorize use of
extrinsic evidence of prior inconsistent statements to impeach a witness on
collateral matters.”).
Assuming Keller’s prior statement to Lubovich was inconsistent with
his trial testimony, we agree with the State that whether or not Keller had
ever expressed the belief that the killing was accidental was a collateral
matter. It is also irrelevant. The inconsistency is as to whether Keller
made the statement to Lubovich. Keller did not and could not properly
testify on direct as to either (1) his belief that the shooting was
accidental or (2) the underlying fact that it was an accident. Jackson
would have Keller’s prior conversation admitted to establish one or both of
these propositions. Whether he made the statement is in itself wholly
collateral. Keller’s belief—as opposed to any fact that Keller observed
that might bear on the issue—is irrelevant. And his testimony that the
shooting was accidental is equally inadmissible because it is an expression
of opinion as to intent, which is barred by Indiana Evidence Rule 704(b).
Because Keller could not properly testify as to these propositions,
impeachment on either would have been inappropriate. See Beauchamp, 986
F.2d at 3-4 (“[E]xtrinsic evidence to disprove a fact testified to by a
witness is admissible when it satisfies the Rule 403 balancing test and is
not barred by any other rule of evidence.”). The trial court did not
abuse its discretion in refusing to allow Lubovich’s testimony on this non-
issue.
IV. Sufficiency of the Evidence
Jackson admits that he killed his wife, but asserts that the evidence
was insufficient to prove that it was a knowing or intentional killing.
The standard for reviewing sufficiency of the evidence claims is well
settled. We do not reweigh the evidence or judge the credibility of the
witnesses. Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999). We will
affirm the trial court if the probative evidence and reasonable inferences
drawn from the evidence could have allowed a reasonable trier of fact to
find the defendant guilty beyond a reasonable doubt. Bunch v. State, 697
N.E.2d 1255, 1257 (Ind. 1998).
Murder is the “knowing[] or intentional[] kill[ing] [of] another
human being.” Ind. Code § 35-42-1-1 (1998). Jackson was charged with
knowingly killing Debbie. Under Indiana Code § 35-41-2-2(b), “[a] person
engages in conduct ‘knowingly’ if, when he engages in the conduct, he is
aware of a high probability that he is doing so.” To kill knowingly is to
engage in conduct with an awareness that the conduct has a high probability
of resulting in death. Lyttle v. State, 709 N.E.2d 1, 3 (Ind. 1999). A
knowing killing may be inferred from the use of a deadly weapon in a manner
likely to cause death. Barker v. State, 695 N.E.2d 925, 931-32 (Ind.
1998).
The morning of the shooting began with an argument between Jackson
and Debbie. Jackson testified that he “might have” threatened his wife,
that he was looking for the gun “to scare her,” and that the gun was
loaded. He also testified that he “might have” thrown her against the
kitchen door during the course of the argument. According to his
testimony, he took the gun, cocked it and aimed it toward the ceiling. He
then lowered the gun and it discharged while pointed at his wife’s head.
The jury was free to disbelieve Jackson’s testimony that the discharge was
an accident. The jury also could have concluded that Jackson acted with an
awareness of the probable consequences of his actions.[4] Thus, on either
basis, a reasonable jury could have concluded that the evidence was
sufficient to find Jackson guilty of murder beyond a reasonable doubt.
V. Sentencing
Jackson argues that the trial court abused its discretion in failing
to find significant mitigating circumstances supported by the record and in
imposing the presumptive sentence, despite identification of two mitigating
circumstances and no aggravating ones.
It is well established that sentencing decisions lie within the
discretion of the trial court. Echols v. State, 722 N.E.2d 805, 808 (Ind.
2000). When a trial court imposes the presumptive sentence, on appeal this
Court presumes that the trial court considered the proper factors in making
its sentencing determination. Jones v. State, 698 N.E.2d 289, 291 (Ind.
1998). When a court identifies aggravating or mitigating circumstances,
however, it is obligated to include a statement of its reasons for
selecting the sentence imposed. See Ind. Code § 35-38-1-3 (1998); Jones,
698 N.E.2d at 291; Widener v. State, 659 N.E.2d 529, 533 (Ind. 1995)
(citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)); Townsend v.
State, 498 N.E.2d 1198, 1201 (Ind. 1986). This statement of reasons must
contain three elements: (1) identification of all significant mitigating
and aggravating circumstances; (2) the specific facts and reasons that lead
the court to find the existence of each such circumstance; and (3)
reflection of an evaluation and balancing of the mitigating and aggravating
circumstances in fixing the sentence. Widener, 659 N.E.2d at 533 (citing
Hammons, 493 N.E.2d at 1254); Townsend, 498 N.E.2d at 1201.
Jackson points to the following mitigating circumstances: lack of a
criminal history; employment; aid to the victim following the shooting;
remorse; cooperation with authorities; undue hardship for his family from
imprisonment; and the pleas for leniency from Jackson’s immediate and
extended family (including the victim’s father). The trial court mentioned
only the first two in its sentencing statement:
Reading the pre-sentence report you don’t have any previous criminal
record and you have been employed. I certainly don’t find any
aggravating circumstances that is contemplated by the statute. But
murder is a serious offense.[5] Pursuant to the statute, I’ll
sentence you to the Indiana Department of Corrections for (55) fifty-
five years.
The imposition of a presumptive sentence does not obligate the trial
court to provide a detailed sentencing statement. See Jones, 698 N.E.2d at
290. Here, however, the trial court identified two mitigating
circumstances and thus was required to state its reasons for imposing the
sentence it did. This requirement is intended to ensure that the trial
court considered proper matters in determining the sentence and facilitates
meaningful appellate review of the reasonableness of the sentence. See
Hammons, 493 N.E.2d at 1254. The only review this Court could undertake on
a record like the one provided here would be purely speculative. Because
there is no basis for this Court to determine whether the trial court
properly weighed the aggravating circumstances against the mitigating
circumstances, we remand to the trial court for resentencing on this
record.[6]
Conclusion
We affirm the conviction for murder and remand for resentencing on
this record.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
-----------------------
[1] Jackson also alleges that the trial court should have admonished or
interrogated the remaining jurors to determine whether the dismissal of the
juror affected the other jurors’ ability to serve. Jackson did not request
that the trial court do so and has waived this argument on appeal. Cf.
Hackett v. State, 716 N.E.2d 1273, 1276 (Ind. 1999) (argument regarding
trial court’s failure to question or admonish remaining jurors as to impact
of one juror seeing defendant in orange jumpsuit was waived where no
request for questioning or admonishment was made).
[2] March 3 was the wrong date. The date of the alleged battery was
August 3.
[3] Jackson also argues that because the State had already played the tape
of Jackson’s statement to Deputy Keller in which he professed his love for
Debbie before Jackson testified, the State was attempting to “open the
door” to the battery. However, the State cross-examined Jackson regarding
the battery only after Jackson testified at trial to his love for Debbie.
[4] Jackson cites Horne v. State, 445 N.E.2d 976 (Ind. 1983), for the
proposition that, in order to be guilty of a knowing or intentional murder,
the State was required to prove beyond a reasonable doubt that his act was
“purposeful,” i.e., “the product of a conscious design, intent or plan that
it be done, and . . . done with an awareness of the probable consequences.”
Id. at 979. To the extent this language implies that murder requires a
higher mens rea standard than “knowing” as elaborated in the more recent
cases, it is not current law.
[5] The fact that “murder is a serious offense” is not a valid aggravating
circumstance; it is inherently accounted for by the legislature in setting
the maximum and minimum sentences.
[6] Jackson makes two other arguments we decline to address because of the
remand. Jackson argues that the trial court failed to find significant
mitigating circumstances that were supported by the record. On remand, the
trial court should consider the mitigating circumstances proffered by
Jackson in the record and listed here, as well as any aggravating
circumstances. The contention that the sentence is manifestly unreasonable
is moot.