John Kochowiec v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Aug 27 2018, 10:10 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Zachary J. Stock Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C. Attorney General of Indiana
Indianapolis, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Kochowiec, August 27, 2018
Appellant-Defendant, Court of Appeals Case No.
32A01-1712-CR-2910
v. Appeal from the Hendricks
Superior Court
State of Indiana, The Honorable Rhett Stuard,
Appellee-Plaintiff. Judge
Trial Court Cause No.
32D02-1703-CM-440
Robb, Judge.
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Case Summary and Issue
[1] Following a jury trial, John Kochowiec was convicted of battery causing bodily
injury, a Class A misdemeanor. At trial, the victim testified Kochowiec was “a
felon” in violation of an order in limine. Kochowiec now appeals, raising the
sole issue of whether the trial court abused its discretion by denying his motion
for a mistrial. Concluding the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
[2] Kochowiec and Robert Couch have a long-running antagonistic relationship—
often requiring police involvement. Couch is married to Angela Couch, the
mother of Kochowiec’s two children. On December 28, 2016, Kochowiec met
Couch, who was joined by Angela, at a Speedway gas station for a custody
exchange. After the children entered Kochowiec’s vehicle, Kochowiec “flipped
off” Couch as he pulled away. Transcript, Volume II at 124. Couch exited his
vehicle and returned the gesture. Couch followed Kochowiec’s vehicle on foot
and began videotaping with his cellphone. After Kochowiec stopped at a red
light, Couch crossed the street and approached Kochowiec’s vehicle “to try to
[videotape] his license plate because he had just got a new car.” Id. at 125.
[3] Kochowiec eventually exited his vehicle and confronted Couch on the street.
After a brief period of yelling, Kochowiec grabbed Couch’s phone and threw it
to the ground. Then, as Couch attempted to retrieve his phone, Kochowiec
punched him in the side of the face. Couch fell to the ground before
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immediately standing back up, yelling to onlookers, “you saw what he did, you
saw what he did[!]” Id. at 104. The two continued yelling back and forth and
Kochowiec returned to his vehicle, briefly drove away, and then returned to the
parking lot of a gas station across the street.
[4] The State charged Kochowiec with battery resulting in bodily injury, a Class A
misdemeanor. After Kochowiec demanded a jury trial, the case was transferred
from Plainfield Town Court to Hendricks Superior Court. Kochowiec filed a
pleading advising the State of his intent to claim self-defense as well as a motion
in limine seeking to exclude any reference to his criminal history. Without
objection, the trial court granted Kochowiec’s motion in limine.
[5] At trial, Couch testified regarding the December 28, 2016, incident, and the
State introduced photographs of Couch’s injuries. During defense counsel’s
cross-examination of Couch regarding prior legal actions between the parties,
the following exchange occurred:
[Counsel]: Okay. How many times have the police been
involved between you two?
[Couch]: Lots.
[Counsel]: Okay, did you threaten him and tell him that
you carry a gun?
[Couch]: No.
[Counsel]: Did you ever tell him you’ll use a gun?
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[Couch]: No.
[Counsel]: Do you have a license to carry a gun?
[Couch]: Yes, ma’am, I do.
[Counsel]: And do you have a gun?
[Couch]: On me now?
[Counsel]: In general, not right now.
[Couch]: Yes, I have a gun.
[Counsel]: Okay. Do you carry it?
[Couch]: Yes, I do, where it’s legal.
[Counsel]: Okay. Did you carry it that night?
[Couch]: I never carry my gun when I’m with the kids,
dropping them off or picking them up.
[Counsel]: Okay. So you represent to this Court and to
the jury that you’ve told him, I’ve got a gun
and I’m not afraid to use it on you?
[Couch]: Uh, yes, that’s exactly what I’m saying. I’ve
never said that.
[Counsel]: Okay. Uh, and in fact when you said about
the Morgan County Sheriff that was because
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you and Angela were trying to – to raise
other criminal accusations against Mr.
Kochowiec; isn’t that accurate?
[Couch]: That I was trying to raise criminal actions
against him?
[Counsel]: You and Angela.
[Couch]: No, ma’am.
[Counsel]: Was Angela trying to?
[Couch]: I can’t answer for Angela.
[Counsel]: Okay. Isn’t it true that she had pursued
something in Morgan County and filed
something against him saying there’s a
protective order and in fact there wasn’t a
protective order in place?
[Couch]: Yes, there was a protective order and yes, she
did give that information to the Sheriff’s
Department and they arrested him, she
didn’t.
[Counsel]: Was it in fact that case dismissed in Morgan
County because there was no protective
order?
[Couch]: Uh, that was dismissed because Morgan
County makes you redo it but Marion
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County doesn’t. And it was in two different
counties.
[Counsel]: I’m asking a different question. It was
dismissed and –
[Couch]: Yes, it was dismissed.
[Counsel]: -- there was no protective order; is that
correct?
[Couch]: There was a protection order.
[Counsel]: Okay.
[Couch]: But he was not re-served --
[Counsel]: Okay.
[Couch]: -- through Morgan County.
[Counsel]: So when you were going up the stairs at the
boys’ basketball game, you said Morgan
County wants you back, you were referencing
some other -
[Couch]: No, I said he – they would like him back.
[Counsel]: What were you referring to?
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[Couch]: He was – he was laughing at me. And he’s
done threatened me over the internet that he
was gonna shoot me if I came to Haughville -
[Counsel]: Okay.
[Couch]: -- where he lives. But he’s a felon; he’s not
suppose to have a gun so how is he going to
shoot me?
Tr., Vol. II at 141-43. Defense counsel objected to Couch’s reference to
Kochowiec’s criminal history. The following sidebar discussion ensued:
[Defense Counsel]: It looks like to me it’s a mistrial.
[The Court]: Are you saying it’s a violation of the Motion
in Limine?
[Defense Counsel]: (Inaudible).
[State]: (Inaudible).
[Defense Counsel]: I didn’t ask him that. (Inaudible).
[The Court]: Well you did ask him about a gun. . . . You
did ask him about a gun; you did ask him
about – you did ask him about protective
orders. You asked him about threatening
him in the past. I mean you’re – you’re –
[Defense Counsel]: I have to get into his history. I didn’t ask him
(inaudible).
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[The Court]: You asked him if he carried a gun.
[Defense Counsel]: Him, not Mr. Kochowiec.
[The Court]: If you asked him if he carried a gun, you
asked him –
[Defense Counsel]: Yes, Mr. Couch.
[The Court]: You?
[Defense Counsel]: Yes. (Inaudible) Mr. Kochowiec carried a
gun (inaudible) supposed to be carrying a
gun.
[The Court]: He didn’t say that.
[Defense Counsel]: He – he just did, yeah.
[The Court]: No, no, he didn’t he carried – he can’t carry a
gun because he’s a felon. He just said he’s a
felon; he didn’t say anything about carrying a
gun. I understand but you’re the one that
opened the door to it, Counsel. You’re the
one that sit [sic] here and talking about the
issues between and criminal history. I mean
you’re the one that’s cracking the door for all
this. We didn’t have to go into any of this
stuff, her basketball games or anything like
that. You’re the one that’s opened the door
to all this.
[Defense Counsel]: (Inaudible).
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[The Court]: Well you can’t talk about the bad blood and
not expect to get into what’s gone on before.
Counsel, and I don’t see how you can walk
both sides of that street.
[Defense Counsel]: But he still can’t speak about prior criminal
convictions from that aspect because that’s a
violation.
[The Court]: I understand it’s about it’s a violation of the
Motion in Limine that was granted but if you
guys are going to walk that line and get right
up to it, it – I mean at this point you’re the
one that’s pushed him to that point of talking
about it. I don’t see how this is something
that we’re going to have a mistrial over. I
mean you’re asking about his prior things and
the minute he steps over the line and says
something under questioning from you all,
uh, that – we’re going to have a mistrial.
(Inaudible) I mean I just don’t see how that’s
going to happen.
[Defense Counsel]: I’m just trying to (inaudible).
[The Court]: We can move to strike and I’ll admonish the
– certainly admonish the jury but I’m not
going to grant a mistrial at this point.
Id. at 143-46. Immediately thereafter, the trial court offered the following
admonishment to the jury:
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[L]adies and gentlemen, that, last bit of testimony, that was
offered, there was some testimony about, possibly Mr.
Kochowiec’s prior criminal history. I’m going to admonish the
jury – that’s going to be stricken from the record. The jury is to
disregard that. That has absolutely no bearing on this case
whatsoever. [T]he jury is to treat that as if that wasn’t mentioned
and never happened and is not to be considered by you in any
way, shape or form in this case. It has no bearing on the case
whatsoever. Is everyone clear on that; does everyone
understand? Thank you.
Id. at 146.
[6] At the conclusion of the one-day trial, the jury found Kochowiec guilty as
charged. The trial court entered judgment of conviction and imposed a
sentence of 365 days of incarceration with 362 days suspended to probation.
Kochowiec now appeals.
Discussion and Decision
I. Standard of Review
[7] The grant or denial of a motion for mistrial rests within the sound discretion of
the trial court and is reviewed for an abuse of discretion. Brittain v. State, 68
N.E.3d 611, 619 (Ind. Ct. App. 2017), trans. denied. We afford the trial court
great deference on appeal because the trial court is in the best position to
evaluate the relevant circumstances of an event and its impact on the jury. Id.
at 620. To prevail on appeal from the denial of a motion for a mistrial, the
appellant must demonstrate that the statement or conduct in question was so
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prejudicial and inflammatory that she was placed in a position of grave peril to
which she should not have been subjected. Id. The declaration of a mistrial is
an extreme action that is warranted only when no other action can be expected
to remedy the situation. Kemper v. State, 35 N.E.3d 306, 309 (Ind. Ct. App.
2015), trans. denied.
II. Prior Bad Acts
[8] Kochowiec contends the trial court erred in denying his motion for mistrial
after Couch violated the order in limine by referring to his criminal history, i.e.,
that he was a “felon,” and that the violation was so prejudicial that it denied
him a fair trial. Specifically, Kochowiec argues Couch’s reference to
Kochowiec as a “felon” had a significant effect on the jury given Kochowiec’s
self-defense argument because “[i]f the jury had never heard that Kochowiec
was a felon, they certainly could have seen Kochowiec as the person who was
provoked into violence.” Corrected Appellant’s Brief at 8.
[9] Motions in limine are useful tools to prevent the admission of evidence of prior
bad acts pursuant to Indiana Rule of Evidence 404(b), which prohibits the
admission of “other crimes, wrongs, or acts . . . to prove the character of a
person in order to show action in conformity therewith.” Owens v. State, 937
N.E.2d 880, 895 (Ind. Ct. App. 2010), trans. denied. The rule is intended to
prevent the “forbidden inference,” whereby the jury uses a defendant’s past
propensities to determine whether he or she is guilty of the current crime.
Wilhelmus v. State, 824 N.E.2d 405, 414 (Ind. Ct. App. 2005). Generally,
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therefore, we view evidence of a defendant’s prior criminal history as highly
prejudicial and it should not be admitted. Hyppolite v. State, 774 N.E.2d 584,
593 (Ind. Ct. App. 2002), trans. denied. Although we agree, of course, that
Couch’s reference to Kochowiec as a “felon” was improper under Indiana Rule
of Evidence 404(b)(1) and a violation of the order in limine, we cannot
conclude that the violation was so prejudicial as to place Kochowiec in “grave
peril.” Brittain, 68 N.E.3d at 619.
[10] First and foremost, “The gravity of the peril is measured by the conduct’s
probable persuasive effect on the jury.” Pittman v. State, 885 N.E.2d 1246, 1255
(Ind. 2008). Here, the trial court made no observations regarding the effect
Couch’s reference to Kochowiec as a “felon” had on the jury and thus we
cannot defer to the trial court’s determination of this issue. Lehman v. State, 777
N.E.2d 69, 73 (Ind. Ct. App. 2002). Given the totality of the evidence,
however, we think it unlikely the violation had any significant effect on the
jury. See Pittman, 885 N.E.2d at 1255 (holding it was unlikely that a State
witness’s reference to the defendant having served time in prison “had any
significant effect on the jury” given the evidence presented).
[11] In addition to Couch’s testimony, the State produced the testimony of Andrew
Arrowood, a local minister who had stopped for gas while returning from
vacation with his family. Arrowood testified that as Kochowiec left the gas
station, Couch pursued his vehicle on foot while recording the events on his cell
phone. Kochowiec became agitated and yelled at Couch to stop. Arrowood
left the gas station to approach the scene and Kochowiec exited his car so that
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both he and Couch were standing in traffic. Kochowiec and Couch were
yelling at each other and Kochowiec appeared “angry.” Tr., Vol. II at 103.
Arrowood attempted to intervene and asked them to return to their vehicles.
Kochowiec then “put his hands on [Couch],” and eventually landed “one
devastating punch.” Id. Arrowood did not see Couch hit Kochowiec at all.
The State also presented Couch’s cellphone recording depicting the events
leading up to the parties’ confrontation. Id. at 125, State’s Exhibit 1.
Considering the totality of the evidence, therefore, we cannot conclude the
violation was so prejudicial as to place Kochowiec in “grave peril.” Brittain, 68
N.E.3d at 619; see James v. State, 613 N.E.2d 15, 22 (Ind. 1993) (“On appeal,
where the jury’s verdict is supported by independent evidence of guilt such that
we are satisfied that there was no substantial likelihood that the evidence in
question played a part in the defendant’s conviction, any error in admission of
prior criminal history may be harmless.”)
[12] Second, we adhere to “strong presumptions that juries follow courts’
instructions and that an admonition cures any error,” Lucio v. State, 907 N.E.2d
1008, 1011 (Ind. 2009), so reversible error will seldom be found if the trial court
has admonished the jury to disregard a statement made during the proceedings,
Warren v. State, 757 N.E.2d 995, 999 (Ind. 2001). Here, the trial court offered a
prompt admonishment, instructing the jury that it was to disregard Couch’s
statement and that it had “absolutely no bearing on this case whatsoever” and
that it was “to treat that as if that wasn’t mentioned and never happened and is
not to be considered . . . in any way, shape or form in this case.” Tr., Vol. II at
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146. On appeal, Kochowiec argues the problem with the trial court’s
admonishment “is that it confirms for the jury that Kochowiec had a ‘prior
criminal history,’” which Kochowiec describes as “the proverbial skunk in the
jury box.” Corrected Appellant’s Br. at 9 (citing United States v. Lowis, 174 F.3d
881, 885 (7th Cir. 1999) (“If you throw a skunk into the jury box, you can’t
instruct the jury not to smell it.”)). To the contrary, however, the trial court
stated, “there was some testimony about possibly Mr. Kochowiec’s prior
criminal history.” Tr., Vol. II at 146 (emphasis added). We do not view the
trial court’s admonishment as confirming the fact that Kochowiec had a prior
criminal history, and even if could be perceived as such, Kochowiec failed to
object to the court’s admonishment on that basis or to cite precedent that such
an admonishment would be inadequate. Accordingly, we conclude the trial
court’s admonishment was sufficient to cure any error.
[13] Third, as the trial court observed, Couch’s reference to Kochowiec’s criminal
history came during a line of questioning by defense counsel regarding the
hostility between the two men, prior threats, Couch’s possession of a gun, and
prior legal involvement between the two. As such, we view Couch’s statement
as an inadvertent disclosure rather than a spontaneous, willful violation of the
order in limine. See Greenlee v. State, 655 N.E.2d 488, 490 (Ind. 1995) (noting
whether the testimony was intentionally injected or inadvertent plays a role is
determining whether a violation of an order in limine merits a new trial). Even
more telling, however, is the fact that Couch’s reference came in response to an
opened-ended question, namely, “What were you referring to?” Tr., Vol. II at
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143. As Chief Judge Brook aptly noted in his separate concurring opinion in
Lehman,
A cardinal rule of effective trial advocacy is never to ask a
question to which one does not know the answer. Indiana
Evidence Rule 611 permits the use of leading questions on cross-
examination, and a well-prepared advocate will skillfully employ
this technique to control adverse witnesses and thereby shape
their testimony to her client’s advantage.
777 N.E.2d at 74 (Brook, C.J., concurring). By asking Couch, “What were you
referring to?,” defense counsel lost control of the witness and may well have
invited any error. Tr., Vol. II at 143. In any event, effective advocates will be
wise to heed Chief Judge Brook’s advice by “meticulously plotting a course for
a witness’s testimony on cross-examination and by using carefully chosen
leading questions” thereby avoiding “the possibility of a witness violating an
order in limine” and the possibility of mistrial. Lehman, 777 N.E.2d at 74.
[14] Fourth and finally, Couch’s reference was fleeting, vague, and the State made
no further mention of it during the trial. See Lucio, 907 N.E.2d at 1011 (holding
that denial of mistrial was not abuse of discretion where statement was fleeting,
inadvertent, and only a minor part of the evidence against the defendant and
the trial court admonished jury to disregard the statement). Accordingly, we
conclude the trial court did not abuse its discretion by denying Kochowiec’s
motion for a mistrial.
Conclusion
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[15] For the reasons discussed above and in light of the trial court’s wide discretion,
the totality of the evidence, and the trial court’s admonishment to the jury, we
conclude the trial court did not abuse its discretion by denying Kochowiec’s
motion for a mistrial.
[16] Affirmed.
Najam, J., and Altice, J., concur.
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