Jackson v. State ( 2009 )

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Gary Dennis Jackson (Jackson), appeals his conviction for battery resulting in serious bodily injury, a Class C felony, Ind.Code § 35-42-2-1(a)(8).

We reverse.

ISSUES

Jackson raises four issues for our review, two of which we find dispositive and restate as: ¹

(1) Whether the trial court abused its discretion by granting the State a mistrial; and

(2) Whether the trial court violated the prohibition against double jeopardy by submitting Jackson to a trial subsequent to the mistrial it granted the State.

FACTS AND PROCEDURAL HISTORY

On September 11, 2006, Jackson, Gerald "Bubby" Roberts (Roberts), Garry Campbell (Campbell), Tim High (High), and Ben Smith (Smith) were drinking vodka at Smith's apartment on Walnut Street in Madison, Indiana. Jackson confronted Roberts about whether he had stolen some liquor, cigarettes, and money from him the night before. Eventually Jackson started punching Roberts. Roberts fell to a mattress lying on the floor and Jackson kept hitting him, as well as kicking him and stomping on him. During the beating, Roberts pleaded with Jackson to stop, but by the end of the beating he was not talking anymore. The men at the apartment checked Roberts and decided he was not hurt bad enough to call for an ambulance because he was coughing from time to time. Jackson and High each left the apartment just before dark.

Early the next morning, Smith woke up when Roberts was having a seizure. Roberts was epileptic and did not take medication for his epilepsy, so he periodically had seizures. Smith noticed fresh blood on the wall and that Roberts was bleeding from the mouth. Smith wiped the blood off of Roberts' face and started drinking vodka. That morning someone that Smith had met at Jackson's residence came over to clean Smith's apartment as they had previously arranged.² Smith, Campbell, and the cleaning guy decided that Roberts looked pretty bad and was now in need of an ambulance. Smith and the cleaning guy drank some vodka and then left to go buy some cleaning products and told Campbell that they would call an ambulance while they were gone. When they returned Campbell learned that they had not called for an ambulance. Campbell then left to call an ambulance for Roberts. Smith and the cleaning guy stayed and drank some more vodka.

The paramedics arrived and Roberts was pronounced dead at 12:04 p.m. During an autopsy, it was determined that Roberts had sustained a traumatic brain injury eight hours and twenty minutes before he died. The cause of death was blunt force trauma to Roberts' head.

On September 19, 2006, the State filed an Information charging Jackson with aggravated battery, a Class B felony, I.C. § 35-42-2-1.5. On October 26, 2006, the State filed an additional Information charging Jackson as being an habitual offender. Jackson was tried by jury on December 8 through December 15, 2006.³ That trial resulted in a hung jury, and a mistrial was declared.

A second jury trial was scheduled and a jury was sworn and impaneled on April 23, 2007. That same day, a local newspaper ran an article about the trial which contained an excerpt from a letter Jackson had written to Jefferson County's chief deputy prosecutor. Jackson was quoted as writing "I know my life to you doesn't mean anything, just another poor black man the [SJtate can clean up the book on." (State's Exhibit 1). First thing the next morning, the State requested a mistrial. The trial court asked the jury if any members knew of the article and five acknowledged they did. The trial court then held voir dire with each of those five jurors individually to determine what they knew about the newspaper article.⁴ The first Juror questioned stated that he saw the article and read the first couple of sentences, but remembered that he had been instructed to stay away from newspaper articles or radio coverage of the trial, and stopped reading. He testified that what he read would not influence his determination of guilt or innocence. The second juror that was questioned stated that he read the article. He stated that he did not know the facts of the case and the article did not influence him to lean toward either side. The third juror questioned stated that his wife started reading the article aloud, but he told her to stop. He only heard something about the fact that a jury was being selected. He testified that he was not influenced by what he heard. The fourth juror stated that her husband started reading the article but she told him to stop. Her husband stopped reading, but told her he knew "that person in [the] article." (Transcript p. xiv). She testified that she heard nothing that would cause her to form an opinion either way, and that her husband knowing Roberts would not influence her either. The fifth and final juror who knew of the article stated that he had read the article. He testified that the part about the letter to the chief deputy prosecutor meant nothing to him because he did not know the facts of the case. He said the article would not influence him in any way. After voir dire and taking argument from the State and Jackson, the trial court stated that it believed Jackson when he represented that he had nothing to do with the newspaper article, and that it believed the State's denial of prejudice towards Jackson. The trial court then added, "That's not my issue in my head," and granted the State's motion for a mistrial. (Tr. p. xxi).

On June 25, 2007, a third jury was impaneled for a trial, and the trial commenced the next day. On July 6, 2007, the trial court returned a verdict finding Jackson guilty of battery resulting in serious bodily injury, as a Class C felony, I.C. § 35-42-21(a)(8); battery, as a Class A misdemeanor, I.C. § 35-42-271(a)(4 ); and battery, as a Class B misdemeanor, I.C. § 35-42-2-1, all as lesser included offenses of the charged crime aggravated battery, a Class B felony. The trial court entered a judgment of conviction on the battery resulting in serious bodily injury verdict and merged the verdicts on the two misdemeanor battery charges into that convietion. On July 16, 2007, after a series of motions by Jackson and the State, the trial court found Jackson to be an habitual offender. On July 26, 2007, the trial court sentenced Jackson to twenty years with the Department of Correction. Jackson initiated a timely appeal, but on September 9, 2008, Jackson requested that his appeal be stayed so that he could pursue post-conviction relief, which we granted. On December 15, 2008, Jackson filed a Petition for post-conviction relief alleging that the trial court's finding that he was a habitual offender was improper. The trial court agreed, and on December 29, 2008, entered an Order vacating the habitual offender finding, which the State of Indiana has not appealed. On February 20, 2009, Jackson requested that we resume jurisdiction over his previously filed appeal, and on March 3, 2009, we issued an Order resuming jurisdiction.

Jackson now appeals his conviction for battery resulting in serious bodily injury. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Did the Publication Justify a Mistrial?

Jackson first argues that the trial court abused its discretion when it declared a mistrial at the second jury trial. Specifically, he contends that for the trial court to have properly declared a mistrial, it must first have found that the jurors were influenced by the newspaper article which prompted the State to move for the mistrial, but it did not.

Before addressing Jackson's contention, we address the State's contention that Jackson has waived this issue for review by failing to object to the grant of the mistrial. Although Jackson's attorney never uttered the words "I object," he did explain to the trial court that all of the jurors questioned about reading the article have "indicated it has not had any impact upon their ability to be fair and impartial jurors in this case, and for that reason we believe a mistrial would not be appropriate." (Tr. pp. xix-xx). We conclude that this is a sufficient objection to preserve this issue for appeal. See Chambers v. State, 848 N.E.2d 298, 302 (Ind.Ct.App.2006), trans. denied (holding statement to trial court that case was set as speedy trial to be a sufficient to preserve issue of whether right to speedy trial was violated although the specific word "object" or "objection" was not used when State moved for continuance).

Moving on to address the propriety of the mistrial, we note that when instances of trial publicity and the trial court's ruling on a motion for mistrial are presented on appeal, the typical circumstance involves a defendant who has moved for a mistrial and the denial of that motion. See, e.g., Harris v. State, 249 Ind. 681, 231 N.E.2d 800 (1967), Lindsey v. State, 260 Ind. 351, 295 N.E.2d 819 (1973), Kimmel v. State, 275 Ind. 575, 418 N.E.2d 1152 (1981), Dupree v. State, 712 N.E.2d 1076 (Ind.Ct.App.1999), Stroud v. State, 787 N.E.2d 430 (Ind.Ct.App.2003). The fact that a juror has read a newspaper article pertaining to a case is not grounds for a mistrial, new trial, or reversal unless it is shown that the jurors were influenced thereby. Harris 249 Ind. at 695, 231 N.E.2d at 807. In Stroud, we explained:

The Lindsey court set forth the following guidelines: (1) When the court becomes aware of the possibility of improper and prejudicial publicity, it should make a determination regarding the likelihood of resulting prejudice. This determination is made by considering both the content of the publicity and the likelihood that it came to the attention of any of the jurors. (2) If, after such an evaluation, the court determines that the risk of prejudice appears substantial, it should interrogate the jury collectively to determine who, if any, has been exposed. If no juror was exposed, the court should instruct the jury about the hazards of such exposure and about the need for avoiding exposure to out-of-court comments about the case. (@@) If any juror was exposed, the court must determine the degree of exposure and the likely effect thereof, which is done by interrogating that juror individually, ie., outside the presence of the other jurors. Each juror so interrogated should be individually admonished. (4) After interrogating and admonishing the exposed jurors, the court should assemble and collectively admonish the rest of the jurors along the lines set out in (1) above. (5) If the imperiled party deems the above procedures insufficient to remove the peril, he should move for a mistrial. The trial court should declare a mistrial if it believes the peril to be substantial and incurable.

Stroud, 787 N.E.2d at 484. That being said, a trial court's ruling on a mistrial is given great deference by the appellate courts because a trial court is in the best position to evaluate the circumstances and their probable impact on the jury. Pavey v. State, 764 N.E.2d 692, 700 (Ind.Ct.App.2002), trans. denied. Still, a mistrial is an extreme remedy in a criminal case and should be granted only when nothing else can rectify the situation. State v. Glasscock, 759 N.E.2d 1170, 1173 (Ind.Ct.App.2001).

Here, the trial court appropriately questioned the jury to ascertain who was aware of the article, and then properly questioned the jurors that were aware of the article individually. The trial court learned that five jurors were aware of the article, and two the jurors had read it in its entirety. None of the jurors stated that the article would influence their decision. Only one juror specifically indicated that he remembered the passage with the quote from Jackson's letter to the prosecutor, and he assured the trial court that the passage would have no effect on his consideration of the case. The trial court did not admonish the jurors individually or collectively, but rather determined that a mistrial was appropriate.

The trial court did not state on the record why an admonition would have been insufficient, or why it believed that the article jeopardized the State's case. Moreover, there is no evidence on the record that the State's case was jeopardized as no juror testified that they were even remotely influenced by the article It is true that a trial judge, who sees the demeanor of witnesses, can serutinize their testimony in a way that we cannot when reviewing a "cold transcript." Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002). As such, if the trial court had explained that it had perceived a nonverbal indication of bias from a juror who had been exposed to the article, we may have concluded that the mistrial had been appropriately granted. But, the trial court's only statement for the record as to why the mistrial ruling was justified was "That's not my issue in my head." (Tr. p. xxi) Therefore, we conclude that an admonition from the trial court would have been sufficient considering the limited nature of the jury's exposure to the passage from the article and lack of evidence that the article influenced any juror. As such, the trial court abused its discretion by granting the mistrial.

II. Double Jeopardy

In a closely related argument, Jackson contends that the trial court violated his right to be free from double jeopardy by inappropriately granting a mistrial and then allowing a subsequent trial on the same charges. Specifically, Jackson argues that there was no manifest necessity to grant the mistrial, and therefore the discharge of the jury without his consent prohibited another trial.

The Fifth Amendment to the Constitution of the United States provides in pertinent part: "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...." This provision is made applicable to the States through the Due Process Clause of the Fourteenth Amendment. Crim v. State, 156 Ind.App. 66, 75, 294 N.E.2d 822, 829 (1973). Article 1, Section 14, of the Constitution of the State of Indiana provides in pertinent part: "No person shall be put in jeopardy twice for the same offense." Under both the Indiana and Federal Constitutions, jeopardy attaches when a criminal trial commences, and this point arrives when a jury has been selected and sworn even though no evidence has been taken. Crim, 294 N.E.2d at 828. The defendant has a valued right to have his trial completed by a particular tribunal. Glasscock, 759 N.E.2d at 1173. Since the jury had been sworn, jeopardy had attached to Jackson's second trial despite the fact that not even the opening statements had yet been delivered to the jury.

Once jeopardy has attached, the trial court may not grant a mistrial over a defendant's objection unless "manifest necessity" for the mistrial is found. Brown v. State, 703 N.E.2d 1010, 1015 (Ind.1998) (citing Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). In the absence of manifest necessity, the discharge of the jury operates as an acquittal. Brown, 703 N.E.2d at 1015 (citing Wright v. State, 593 N.E.2d 1192, 1196 (Ind.1992)).

The words "manifest necessity" do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge. Id. We have previously said that manifest necessity contemplates a sudden and overwhelming emergency be-youd the control of the court. Glasscock, 759 N.E.2d at 1173. Manifest necessity is not absolute necessity; there need only be a "high degree" of necessity before concluding that a mistrial is appropriate. Brown, 703 N.E.2d at 1015. An explicit finding of manifest necessity is not required; rather, the record need only adequately disclose the basis for the trial court's decision. Id. The decision of the trial court to grant a mistrial will be reversed only for an abuse of discretion, with "manifest necessity" as the benchmark. Id.

When directly questioned, no juror testified that the article had even the slightest influence on their ability to be conscientious arbiters. Moreover, we have concluded that an admonishment from the trial court would have sufficiently cured any potential prejudice caused by the jury's limited exposure to the article. For that same reason, there was no manifest necessity to grant the mistrial, and the trial court abused its discretion by doing so. Therefore, we conclude that the discharge of the jury at Jackson's second trial operated as an acquittal and the subsequent trial of Jackson was a violation of his right to be free from double jeopardy.

CONCLUSION

Based on the foregoing, we conclude there was no evidence that the jury was influenced by the newspaper article, and, therefore, there was no manifest necessity to grant such a mistrial. Consequently, the dismissal of the jury at Jackson's see-ond trial operated as an acquittal, and the subsequent trial on those same charges violated his right to be free from double jeopardy.

Reversed.

BAILEY, J., concurs. BRADFORD, J., dissents with separate opinion.

1 . Jackson originally raised six issues on appeal. However, two of those issues were resolved by the trial court when this appeal was stayed and this case was remanded for post conviction relief proceedings. We resumed jurisdiction over this appeal and will review the remaining issues.

2 . Smith could not remember this individual's name at trial.

3 . Jackson's attorney has omitted certain pages in the Appellant's Appendix, including the pages that are cited in the Appellant's Brief as containing portions of the CCS entries regarding Jackson's first jury trial. However, it is undisputed that Jackson's first jury trial resulted in mistrial, and Jackson does not raise any issues regarding the first mistrial.

4 . The Transcript represents that the voir dire regarding the article took place on April 23, 2007. However, this must be inaccurate because the text of the Transcript refers specifically to "a short article ... yesterday." (Transcript p. iii). The article ran on April 23, 2007; therefore the individual voir dire must have taken place on April 24, 2007.