Curtis S. Gridley v. State of Indiana , 121 N.E.3d 1071 ( 2019 )

FILED
Apr 10 2019, 5:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer A. Joas Curtis T. Hill, Jr.
Joas & Stotts Attorney General of Indiana
Madison, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Curtis S. Gridley, April 10, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1274
v. Appeal from the Ripley Circuit
Court
State of Indiana, The Honorable Ryan J. King,
Appellee-Plaintiff Judge
Trial Court Cause No.
69C01-1703-F4-5
May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019 Page 1 of 15
[1] Curtis S. Gridley appeals his convictions of Level 4 felony attempt to
manufacture methamphetamine 1 and Level 6 felony theft. 2 He presents three
issues that we restate as:
1. Whether the trial court abused its discretion when it replaced
a juror during the presentation of evidence;
2. Whether the admission of testimony in contravention to the
order in limine constituted fundamental error; and
3. Whether the prosecutor’s statements during closing
arguments constituted fundamental error.
We affirm.
Facts and Procedural History
[2] On December 21, 2016, twenty-year-old Bradley Davis asked his uncle,
Gridley, to purchase alcohol for him. In return, Gridley requested Davis assist
him in purchasing other items. Davis picked up Gridley at Gridley’s mother’s
house, and they drove to Kroger, where Gridley directed Davis to purchase
lighter fluid and a cold pack. Then they went to a CVS pharmacy. Gridley
went in alone and purchased a box of pseudoephedrine. Gridley asked Davis to
1
Ind. Code § 35-48-4-1.1 (2016).
2
Ind. Code § 35-43-4-2(a)(1) (2014).
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go in and purchase more; however, the pharmacist told Davis they were sold
out. When told this news, Gridley became “agitated.” (Tr. Vol. II at 120.)
[3] Davis and Gridley proceeded to a liquor store, where Gridley went inside and
bought a bottle of liquor for Davis. Gridley “said something about wanting to
get high” to Davis. (Id. at 123.) On their way back to Gridley’s mother’s
house, the men stopped at a Gillman’s Home Center. 3 Because Davis was out
of cash and did not want to give Gridley the debit card he used, 4 both men went
inside to make their purchases. After getting directions to the correct location
in the store from a cashier, the men went to the aisle where pipe cutters were
located. Gridley found one he liked but Davis did not see it again after Gridley
picked it up. The men then picked out lighter fluid and drain cleaner. Gridley
pointed to the type he wanted and Davis picked them up. Davis purchased the
lighter fluid and drain cleaner.
[4] Kyle Hitham, the general manager at Gillman’s Home Center, was notified a
staff member had found empty packaging for a pipe cutting tool. Hitham
reviewed his surveillance tapes and cash register system to narrow down when
the tool may have been taken and who was in the store at that time. Hitham
found surveillance showing Davis and Gridley in the store in the area where the
3
Gillman’s Home Center has a “lumber yard, hardware store . . . everything . . . you would need for home
repair[.]” (Tr. Vol. II at 71-72.)
4
Davis and his significant other shared a debit card that was in the significant other’s name.
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pipe cutting tool was located. He confirmed their presence, via video
surveillance, when they purchased the lighter fluid and drain cleaner.
[5] Indiana State Trooper Howard “Chip” Ayers had educated Hitham in the
ingredients needed to make methamphetamine. Hitham recognized the pipe
cutting tool can be used to strip the lithium out of batteries and the lighter fluid
and drain cleaner are used in the chemical process used to make
methamphetamine. Based on that knowledge, once he had identified the men
he suspected of theft, Hitham contacted Trooper Ayers.
[6] Trooper Ayers, trained specifically in methamphetamine-related crimes,
reviewed the surveillance footage provided by Hitham, together with the cash
register sales data, and contacted Davis’ significant other in an attempt to locate
Davis. Once Trooper Ayers contacted Davis, Davis volunteered to “come to
the Indiana State Police Post located on the south portion of Versailles to speak
with” Trooper Ayers. (Id. at 190.) Davis told Trooper Ayers everything that
happened that day, including the purchases at Kroger and CVS. Davis’ account
of the events cemented Trooper Ayers’ suspicions that Gridley was attempting
to manufacture methamphetamine.
[7] On March 3, 2017, the State charged Gridley with Level 4 felony conspiracy to
manufacture methamphetamine, 5 Level 4 felony attempt to manufacture
5
Ind. Code § 35-48-4-1.1 (2016).
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methamphetamine, Level 6 felony possession of precursors, 6 and Class A
misdemeanor theft. 7 On March 12, 2018, the State moved to dismiss the
conspiracy and possession charges. The case proceeded to trial on three
charges: attempt to manufacture methamphetamine as a Level 4 felony, theft as
a Class A misdemeanor, and theft enhanced to a Level 6 felony based on prior
convictions. The first two of these charges were presented to the jury.
[8] While Gridley was in jail awaiting trial, he made a phone call to his mother
wherein he stated, “Bradley Fuckin’ [sic] told on me. Bradley told everything.
And you know the only me and Brad, [sic]” (Tr. Vol. II at 170.) The phone
call was a “free call[,]” (id.), and was cut short because the jail “do[es]n’t give
them a multitude of minutes on a [sic] free calls.” (Id.)
[9] During Trooper Ayers’ testimony at trial, the trial court noted one of the jurors
did not “seem to be with it.” (Id. at 206.) The State agreed the juror should be
replaced with an alternate. The trial court stated: “For the record, it looks to
me like he was falling asleep, then he also creates a lot of noises in his slumber,
other jurors turned and looked at him and then looked at me like, what the
heck.” (Id. at 207.) Gridley objected to dismissing the juror “without giving
him a warning or giving him a chance to explain his behavior.” (Id. at 207-08.)
The trial court called the juror to the bench and asked him about falling asleep.
6
Ind. Code § 35-48-4-14.5 (2014).
7
Ind. Code § 35-43-4-2(a) (2014).
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The juror apologized and agreed he had been asleep. The trial court dismissed
the juror and replaced him with an alternate. Gridley did not object to the
dismissal or request a jury admonishment. Nevertheless, when the jury
reconvened, the trial court addressed the jury:
Ladies, and Gentleman, make sure your paying attention. Uh, I
think I don’t have to explain as to way the other gentleman is no
longer with us cause, numerous jurors were, I saw concern on
your faces. Um, and quickly realized myself that the gentleman
had and was falling in and out of consciousness, so he had to be
excused. But, please, this is an important matter, we need your
undivided attention as best as you could do.
(Id. at 211) (errors in original).
[10] On cross-examination, defense counsel asked Trooper Ayers, “What efforts did
you make to try to talk to Mr. Gridley?” (Id. at 226.) Trooper Ayers
responded, “Well, Mr. Gridley had been arrested on another offense through a
separate county.” (Id.) Counsel requested to approach the bench and indicated
Trooper Ayers’ answer exceeded the scope of the order in limine. 8 The State
argued Gridley elicited this information because of the way he presented the
question on cross-examination. The trial court directed Gridley to “change
8
Earlier in the proceedings, the trial court granted Gridley’s motion in limine. We cannot read the first page
of the motion because either the original record or the e-filed record is too distorted. The parties appear to
agree the motion requested evidence of Gridley’s prior conduct, statements, and criminal history not be
admitted. As the parties appear to agree as to the scope of the motion, we proceed based on the parties’
representations.
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your line of questioning.” (Id. at 228.) Gridley did not object, request an
admonishment, or request a mistrial.
[11] During closing arguments, the State relied, in part, on the premise that
methamphetamine manufacturing was harming the community as a whole.
The State requested the jury rely on its common sense and life experience. The
State delineated the evidence it had presented, i.e. the surveillance footage,
Davis’ testimony about Gridley’s statements that day, Trooper Ayers’
testimony about the ingredients needed to make methamphetamine, the records
from CVS that show Gridley purchased pseudoephedrine, the records from
Gillman’s showing the purchase of lighter fluid and drain cleaner, and the
phone records from the jail. The State noted methamphetamine is “the same
stuff th[at] poisons our community every single day[,]” (id. at 233), how “we’ve
decided as a community, as a society, as a State, under our Law, that the
manufacture of methamphetamine will not stand[,]” (id. at 234), that
methamphetamine cooks in southern Indiana prefer the particular lighter fluid
purchased by Gridley and Davis, and that methamphetamine manufacturing is
“a community problem.” (Id. at 240.) The State then requested the jury “just
hold the Defendant accountable.” (Id.) Gridley did not object to these
statements.
[12] The jury found Gridley guilty of attempt to manufacture methamphetamine
and misdemeanor theft. Gridley then pled guilty to the facts allowing his theft
conviction to be enhanced to Level 6 felony. The trial court sentenced Gridley
to an aggregate sentence of eleven years.
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Discussion and Decision
Juror Replacement
[13] Gridley argues the trial court abused its discretion by removing a sleeping
juror. 9
Article I, § 13, of the Indiana Constitution guarantees a
defendant’s right to an impartial jury; therefore, a biased juror
must be dismissed. Ind. Trial Rule 47(B) provides in part,
“Alternate jurors in the order in which they are called shall
replace jurors who, prior to the time the jury returns its verdict,
become or are found to be unable or disqualified to perform their
duties.” Trial courts have broad discretion in determining
whether to replace a juror with an alternate, and we will only
reverse such determinations where we find them to be arbitrary,
capricious or an abuse of discretion.
May v. State, 716 N.E.2d 419, 421 (Ind. 1999) (internal citations omitted). As
the trial court is in the best position to assess the juror and the juror’s ability to
perform his or her duties, “our review of the trial court’s decisions in these
matters is highly deferential.” Id.9
Because the removal occurred late in the presentation of evidence, Gridley attempts to analogize the
removal to one that occurs during jury deliberations. If juror removal occurs during deliberations, removal is
still “ultimately a matter requiring deference to the trial court’s judgment, but it raises a number of
considerations not present before deliberations begin.” Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004).
However, the removal of Gridley’s juror did not occur during deliberations; it occurred part way through the
State’s last witness. We decline Gridley’s invitation to extend those extra considerations to removal of a
juror prior to deliberations. See, e.g., Campbell v. State, 500 N.E.2d 174, 181 (Ind. 1986) (deciding issue
without reference to extra considerations when removal happened during presentation of evidence).
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[14] Here, the trial court noticed a juror was sleeping and making noises while
sleeping that were disturbing other jurors. The trial court advised both
Gridley’s counsel and the State of the situation. The State agreed the juror had
been sleeping. Gridley’s counsel objected to the juror’s removal if the trial court
was not going to give the juror a chance to explain. The trial court asked the
juror to approach and asked him about sleeping. The juror admitted he had
been sleeping and apologized. The trial court dismissed the juror and replaced
him with an alternate. Gridley did not object to the dismissal and did not
request the jury be admonished. When the trial reconvened, the trial court
explained to the jury that the juror was no longer with them and advised them
all to “make sure your [sic] paying attention.” (Tr. Vol. II at 211.) He
acknowledged that he had seen the concern on their faces as the dismissed juror
“was falling in and out of consciousness[.]” (Id.)
[15] While the “mere falling asleep for a short time, by a juror, . . . does not of itself
constitute a sufficient cause for a new trial[,]” McClary v. State, 75 Ind. 260, 262,
(1881), the trial court did not abuse its discretion by replacing the sleeping juror
with an alternate. The trial court questioned the juror, confirmed the juror had
been sleeping, and explained to the remaining jurors the reason for the
dismissal. In this case, the alternate juror was present and, presumably, awake
up to the point of this juror’s dismissal and the jury had not begun deliberations.
The trial court’s explanation of the juror’s dismissal negated any possible effect
the dismissal may have had on the jury deliberations later in the process. See
Casey v. State, 689 N.E.2d 465, 467 (Ind. Ct. App. 1997) (trial court’s dismissal
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of the lone African-American juror after that juror “stated that his ‘system was
all messed up’” was not an abuse of discretion because the trial court had
“admonished the jury not to speculate as to the cause of the juror’s excusal”).
Order in Limine
[16] Gridley argues that Trooper Ayers testified in violation of the order in limine
regarding references to prior bad acts. “Sanctions for violation of the trial
court’s pretrial order are for the trial court to assess.” Ritchie v. State, 809
N.E.2d 258, 269 (Ind. 2004), reh’g denied, cert. denied 546 U.S. 828 (2005).
Therefore, the issue on appeal is “whether the misconduct requires a retrial, not
whether it violates a trial court order.” Id. As such, the trial court’s decision to
grant a mistrial or to take a lesser step “is afforded great deference on appeal
because the trial court is in the best position to gauge the surrounding
circumstances of the event and its impact on the jury.” Schlomer v. State, 580
N.E.2d 950, 955 (Ind. 1991).
[17] Here, on cross-examination of Trooper Ayers, the following occurred:
[Defense Counsel]: When did you first get the opportunity to
have a conversation with Mr. Gridley about this case?
[Trooper Ayers]: I never had that opportunity. I attempted to,
but I never had that opportunity.
[Defense Counsel]: What efforts did you make to try to talk to
Mr. Gridley?
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[Trooper Ayers]: Well, Mr. Gridley had been arrested on
another offense through a separate county.
(Tr. Vol. II at 226.)
[18] At that point, defense counsel requested to approach the bench and argued he
had not asked Trooper Ayers where Gridley was found. The State noted the
question was asked by the defense, that it was “not something that the state
brought out on Direct[,]” (id. at 227), and Trooper Ayers was only saying
“literally what happened and was the response to all the defense questions.”
(Id.) The trial court advised defense counsel to “change your line of
questioning.” (Id. at 228.) Defense counsel did not further object, request an
admonishment, or request a mistrial.
[19] Gridley acknowledges he did not request an admonishment about the testimony
and did not request a mistrial. Thus, this issue is waived. See Orta v. State, 940
N.E.2d 370, 377 (Ind. Ct. App. 2011) (issue waived if not presented before trial
court), trans. denied. Gridley argues, however, the violation was fundamental
error. Fundamental error is extremely narrow and available only when the
record reveals a clearly blatant violation of basic and elementary principles,
where the harm or potential for harm cannot be denied, and when the violation
is so prejudicial to the rights of the defendant as to make a fair trial impossible.
Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). Gridley does not meet that
standard.
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[20] Gridley argues this violation constitutes fundamental error because “Trooper
Ayers [was] an experience[d] officer and witness, kn[ew] he was not to make
any comment on Gridley’s arrest, [and] answered defense counsel’s question
with information he knew was prejudicial to Gridley.” (Br. of Appellant at 16.)
Gridley argues, whether intentional or not, the violation “merits a new trial.”
(Id.)
[21] Although admission of evidence of prior bad acts is generally error, see Ind.
Evidence Rule 404(b), when the reference is “fragmentary at best[,]” Schlomer,
580 N.E.2d at 955, the admission is harmless. Id. at 956. Not only did the
testimony consist of a single sentence that Gridley had been arrested in another
county, the statement did not disclose the reason for the arrest, whether charges
had been filed pursuant to that arrest, or whether the arrest resulted in a
conviction. Additionally, the statement was elicited by defense counsel, not the
State. Moreover, the State presented substantial independent evidence of
Gridley’s guilt. Given the strength of that evidence, any probable persuasive
effect of Trooper Ayers’ single-sentence response that Gridley had been arrested
in another county would have been minimal. See Moore v. State, 551 N.E.2d
459, 461 (Ind. Ct. App. 1990) (when admission was inadvertent, fragmentary,
and not deliberately elicited by the State, and the evidence against the
defendant is strong, the trial court does not err in denying a mistrial).
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Closing Statements
[22] Gridley argues the prosecutor committed misconduct during the State’s closing
statement. He contends the State’s comments “were an invitation for the jury
to convict [Gridley] in order to combat the methamphetamine epidemic in
Southeastern Indiana rather than because Gridley was guilty of a crime.” (Br.
of Appellant at 18.)
[23] In reviewing a claim of prosecutorial misconduct, we determine whether
misconduct occurred and, if so, whether the misconduct placed the defendant in
a position of grave peril to which he or she would not have otherwise been
subjected. Jerden v. State, 37 N.E.3d 494, 498 (Ind. Ct. App. 2015). The gravity
of peril is measured by the probable persuasive effect of the misconduct on the
jury’s decision rather than the degree of impropriety of the conduct. Id. To
preserve a claim of prosecutorial misconduct, the defendant must request the
jury be admonished at the time the alleged misconduct occurs, and if further
relief is needed, move for a mistrial. Id. Failure to do so results in waiver. Id.[24] Gridley did not object to the alleged misconduct, did not ask for the jury to be
admonished, and did not request a mistrial. Thus, this argument is waived.
Where a prosecutorial misconduct claim has been waived for failure to
preserve, the defendant must establish not only the grounds for misconduct but
also that the misconduct resulted in fundamental error, an extremely narrow
exception. Id.Court of Appeals of Indiana | Opinion 18A-CR-1274 | April 10, 2019 Page 13 of 15
[25] The State’s appeal to a community standard notwithstanding, the State did not
argue the jury should ignore the evidence; rather, the State outlined the
evidence it had presented to demonstrate Gridley was guilty of the charges.
That evidence showed Gridley purchased pseudoephedrine; had gone with
Davis to Gillman’s; had purchased, through Davis, two items needed to
manufacture methamphetamine; had told Davis that he wanted to “get high[,]”
(Tr. Vol. II at 123); and made incriminating statements while talking to his
mother on the phone while incarcerated.
[26] In addition, the jury instructions informed the jury the State had the burden of
proof, Gridley was innocent until proven guilty, and statements made by
counsel were not evidence. (See App. Vol. II at 153 (Final Instruction No. 7 on
the presumption of innocence); id. at 154 (Final Instruction No. 8 on the burden
of proof); id. at 155 (Final Instruction No. 9 on what evidence to consider); id.
at 157 (Final Instruction No. 11 on using “[n]either sympathy nor prejudice for
or against either the victim or the defendant [to] influence [findings]”); id. at
162 (Final Instruction No. 16 that [s]tatements made by attorneys are not
evidence).)
[27] In light of the substantial evidence of Gridley’s guilt and the instructions
provided by the court, Gridley has not demonstrated fundamental error that
would warrant a new trial. See Emerson v. State, 952 N.E.2d 832, 838 (Ind. Ct.
App. 2011) (any misconduct in prosecutor’s statement cured by court’s general
instruction), trans. denied.
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Conclusion
[28] As the trial court did not abuse its discretion in replacing a sleeping juror during
the presentation of evidence and Gridley has not demonstrated fundamental
error, we affirm.
[29] Affirmed.
Baker, J., and Tavitas, J., concur.
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