Steven Lindsey v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 25 2017, 7:54 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
David K. Payne Curtis T. Hill, Jr.
Braje, Nelson & Janes, LLP Attorney General of Indiana
Michigan City, Indiana
Angela Sanchez
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven Lindsey, October 25, 2017
Appellant-Defendant, Court of Appeals Case No.
64A04-1703-CR-482
v. Appeal from the
Porter Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. William E. Alexa, Judge
Trial Court Cause No.
64D02-1502-MR-1173
Kirsch, Judge.
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[1] Steven Lindsey (“Lindsey”) was convicted after a jury trial of murder,1 a felony,
and was sentenced to fifty-five years executed. Lindsey raises seven issues for
our review, which we restate as:
I. Whether the trial court abused its discretion when it
denied Lindsey’s request for a continuance in the middle
of trial where the State sought to introduce new evidence
that Lindsey’s boots matched a footprint found outside the
house;
II. Whether the trial court committed fundamental error
when it did not further question a juror about her decision
to remain on the jury when it was evident that the length
of the trial would conflict with her vacation plans;
III. Whether the trial court abused its discretion when it
admitted evidence that blood found on the wall of the
crime scene belonged to Lindsey;
IV. Whether the trial court abused its discretion when it
excluded videos of police interviews that Lindsey claimed
showed the lack of investigation by the police and,
therefore, denied him the right to present a complete
defense;
V. Whether the trial court abused its discretion when it
denied Lindsey’s request to allow him to read his prior
testimony into the record when the testimony was offered
by the State in its case-in-chief;
1
See Ind. Code § 35-42-1-1.
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VI. Whether the trial court erred when it declared a mistrial
when new evidence was discovered by the State during
Lindsey’s first trial; and
VII. Whether the trial court abused its discretion when it
admitted evidence that Lindsey had the victim’s dog
euthanized shortly after her murder.
[2] We affirm.
Facts and Procedural History
[3] In early 2012, Lindsey met his future wife, Melinda, and within a couple of
months, she became unexpectedly pregnant with his child. Melinda had been
an exotic dancer when the two met, but, after becoming pregnant, she quit her
job and did not return to work again. Lindsey did not like Melinda associating
with her friends or former customers from her time as a dancer, and Melinda
had less and less contact with her friends as well as her family after her
relationship with Lindsey began.
[4] Lindsey was working as an electrical lineman when he and Melinda met, but he
was fired from his job in early 2014 for drinking on the job. Lindsey worked
sporadically until November 2014, earning substantially less than he had in
prior years. After November 2014, Lindsey did not work again until after
Melinda was murdered in January 2015. In October 2014, Lindsey’s behavior
became very impulsive and unpredictable. He opened a new credit card and
purchased a cruise, but never made a payment on the credit card. Lindsey also
cashed out over $16,000 from his retirement account and spent all of that
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money within weeks. In November 2014, he was ordered to pay $6,200 in child
support arrears. During this time, Lindsey had stopped paying his rent and
numerous other bills. From May 2014 to January 2015, bank accounts
belonging to Lindsey and Melinda were frequently overdrawn and numerous
payments were returned for insufficient funds.
[5] One of the payments returned for insufficient funds was the December 2014
premium for a life insurance policy with MetLife insuring Melinda’s life. The
policy had been issued in January 2014 and insured Melinda’s life for one
million dollars with an additional accidental death benefit of $100,000. Lindsey
was the sole beneficiary. On January 7, 2015, MetLife sent a letter to Lindsey
and Melinda stating that their premium had not been paid and that if they did
not pay by January 26, 2015, the policy would be cancelled.
[6] The couple frequently fought about their financial problems. Melinda wanted
Lindsey to return to work, and she also discussed returning to work as a dancer
to earn extra money, but Lindsey did not want her to do so. Melinda asked her
parents if she and her daughter could move back in with them in Illinois.
Although Melinda was not actually pregnant at the time of her death, Lindsey
believed that she was pregnant in December 2014. Lindsey and Melinda had a
big fight around January 1, 2015, and Melinda told Lindsey that she was
leaving him. She went to a friend’s house, in a hysterical state, and said that
Lindsey had taken their daughter to his brother’s house and would not let
Melinda have her daughter. Tr. Vol. VII at 1595.
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[7] On January 8, 2015, Lindsey called police to report that he and Melinda had
returned home and discovered the screen to their bedroom window had been
cut and the window was open. No one had gained entry into the house, and
the couple’s three dogs—a large Malamute that had belonged to Lindsey before
marriage and an aggressive and protective pit bull mix and a small Chihuahua
that had both belonged to Melinda before the marriage—were inside the house.
When police arrived at the scene, the bedroom window was closed. Lindsey
told police that he believed someone opened the window to lure the dogs out so
that they could enter the house. Tr. Vol. II at 337.
[8] On January 15, a detective called to follow up on the January 8 incident, and
while Melinda was on the phone with the officer, Lindsey informed Melinda
that he had just discovered suspicious footprints around their house. Tr. Vol.
VIII at 1865-66. Officers came to the house that day to investigate but observed
that the prints did not appear fresh. Later the same day, Melinda called police
again to report that she had noticed that several items were missing from her
car. Lindsey and Melinda suggested that these incidents, and another
unreported incident months earlier, might be related to stalking and suggested
several ex-boyfriends and former customers, from when Melinda was a dancer,
as possible suspects.
[9] The next morning, on January 16, shortly before 6:30 a.m., Melinda was shot
in the head while in bed. The bullet entered above and behind her left ear,
travelled through her skull, and exited above and in front of her right ear.
There was stippling around the entry wound which indicated that she was shot
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at close range. There were no signs of a struggle or sexual assault, and a
blanket was pulled up over Melinda’s body, with her arms resting down at her
side. Melinda later died of her wounds at the hospital. It was later determined
that she had been shot with a single bullet from her own gun, which was left on
the floor of the bedroom with no other bullets in it.
[10] Meanwhile, Lindsey had called 911 at approximately 6:20 a.m. and screamed
incoherently for approximately two minutes before hanging up. After receiving
the call, the dispatcher searched the system for records associated with the
phone number and dispatched police to the couple’s address immediately. The
dispatcher then attempted to contact Lindsey via text or call, but did not get an
answer. After initially calling 911, Lindsey had called his brother, and after
speaking with his brother for almost a minute, Lindsey called 911 back,
approximately six minutes after the first call, and reported either “My wife’s
been shot” or “They shot my wife.” Tr. Vol. at 330-32. Police arrived at the
home while Lindsey was still on the phone with 911.
[11] Police entered the house through the unlocked front door and could still smell
burnt gun powder in the air, which suggested that it had only been fifteen to
twenty minutes since the gun had been fired. Tr. Vol. II at 496-97. Melinda
was in her bed and still alive. The dogs were in the garage, although Lindsey
claimed that they were in the house when he went to sleep and were never kept
in the garage. Tr. Vol. III at 550; Tr. Vol. XI at 2664. The police discovered
Lindsay in his daughter’s bedroom. Lindsey told the officers that he could not
open the door, and when the officer entered, Lindsey was on his knees in front
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of his daughter’s crib with his hands restrained behind his back with two large,
white zip ties. The officer found zip ties of the same kind in the bedroom where
Melinda was discovered. During the investigation, it was learned that the
brand of zip ties was exclusively sold in bulk through electrical supply
distributors and were accessible to Lindsey where he worked. Tr. Vol. IX at
2046-52, 2203-08.
[12] Lindsey informed the police that he had fallen asleep on the sofa watching
television around 2:00 a.m. and woke up when someone began choking him
from behind. Tr. Vol. III at 537. Lindsey maintained that he blacked out
almost immediately and could not remember anything until he woke up on the
floor of his daughter’s bedroom to the sound of what he thought was a gunshot.
Id. He claimed that his hands had already been zip-tied when he woke up, but
he did not remember anything about how he had gotten to his daughter’s room.
Tr. Vol. XI at 2663-64. Lindsey advised the police of the same list of possible
suspects for Melinda’s murder as he had provided for the prior incidents. The
police investigated these suspects and eliminated them all because they had
verified alibis. Tr. Vol. III at 690. There were no signs of forced entry to the
home; the front door was unlocked when the police arrived, although Lindsey
stated it was locked when he went to bed, and Melinda was known to always
lock doors. All other doors to the house were closed and secured, and no
footprints were found outside leading to any other point of entry.
[13] Shortly after Melinda died, Lindsey had her body cremated, which was against
her family’s wishes, and did not hold a memorial service or publish an obituary.
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Within several weeks of Melinda’s death, Lindsey took numerous rings,
including an engagement ring, and other jewelry to a jewelry store to attempt to
sell, but the store did not purchase any of the items. Lindsey made several calls
to MetLife to initiate a claim on Melinda’s policy and to check on the status of
the claim. He took Melinda’s two dogs to a veterinarian clinic and had them
euthanized. Lindsey was arrested and charged with Melinda’s murder on
February 12, 2015.
[14] Lindsey’s first trial began on September 21, 2015. At the end of the first day of
trial, after the jury was selected and sworn, but before any evidence was
presented, the State was informed that a woman had reported to police that day
that another man, a former boyfriend of Melinda’s named Michael Manning
(“Manning”), had confessed to her that he had committed the murder. The
State informed defense counsel immediately, and the parties jointly requested a
continuance of trial the following morning to permit further investigation. The
trial court adjourned the trial for two days to permit further investigation. In
investigating the allegations, the police conducted multiple taped interviews
with several witnesses, conducted a voice stress test with Manning, and
executed a search warrant to obtain cell phone location data for Manning.
Prior to the day that the trial was set to resume, Linsey filed a “motion for
continuance and/or additional time,” in which he maintained that it was
“physically impossible” for defense counsel to review and investigate the
volume of recently obtained information before the trial was scheduled to
resume and that to proceed without additional time would deprive him of due
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process, and he requested that “trial either be continued or reset for an adequate
period of time to allow [Lindsey’s] counsel to conduct his due diligence
regarding this recent information.” Appellant’s App. Vol. II at 75-80.
[15] On the day the trial was set to resume, the trial court met with the parties and
informed them that, after doing extensive legal research and considering
Lindsey’s right to due process and the volume of new evidence, it had decided
to declare a mistrial. The trial court stated that it was ordering the mistrial to
protect the rights of the defendant. Before bringing the jury back in, the trial
court inquired as to both parties if they had any additional issues to discuss, and
Lindsey raised only the question of whether the trial court would set bond.
Lindsey did not object or otherwise protest the trial court’s decision to declare a
mistrial. The jury was returned to the courtroom, thanked, and discharged.
[16] A jury trial again commenced on November 2, 2015, but that trial resulted in
another mistrial due to a hung jury. A third jury trial commenced on February
16, 2016. During voir dire, Juror 7 informed the court that she was scheduled
to leave town to attend a wedding on Thursday, March 10, 2016, but that she
could delay her flight if necessary and still attend the wedding. Tr. Vol. II at
265-66. When she was asked if this would upset her, she replied “maybe a
little.” Id. at 266. However, she assured the trial court that she would not
allow this to rush her to a quick verdict. Id.
[17] As the trial continued and March 10 drew near, the trial court reminded the
parties of Juror 7’s travel plans and asked them to consider how they wanted to
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address the issue. The trial court noted that there were two alternate jurors and
requested that the parties consider whether they wanted to excuse Juror 7. Tr.
Vol. X at 2316-17. When it became clear that the trial would not conclude by
March 10, the trial court brought Juror 7 into court and inquired if she wished
to be excused from the jury or stay until the trial was completed. Id. at 2411.
Juror 7 stated that she would rather stay, and Lindsey declined the opportunity
to further question the juror. Id. at 2411-12.
[18] Prior to the presentation of evidence, Lindsey had advised the trial court that if
the State intended to read the transcript of Lindsey’s testimony from his
previous trial into evidence, he wanted to be allowed to be the one who read the
testimony to prevent another reader from adding their own inflections to the
testimony. Tr. Vol. II at 291. The State argued that it should be allowed to
have its choice of reader to present evidence in its case-in-chief and that the jury
could be confused by having Lindsey read the prior testimony. Id. The trial
court agreed with the State and said it did not think it appropriate to allow
Lindsey to read the testimony. Id. Later in the trial before the prior testimony
was read, Lindsey raised several objections to it but did not renew his request to
read his testimony into evidence. Tr. Vol. at 2126-27. The State had a detective
who had not been involved with the investigation read Lindsey’s prior
testimony to avoid any risk of undue influence or inappropriate inflections
added to the testimony. Id. at 2128. Before the detective read the testimony,
the trial court admonished him to read the words in the transcript without
added inflections, and the detective agreed. Id. at 2196.
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[19] During the investigation of the crime scene, a number of spots of blood were
located on the wall near the headboard of the bed where Melinda was shot, and
DNA tests later revealed that the blood belonged to Lindsey. Testimony was
presented that the shape, location, and other characteristics of the blood spatter
was inconsistent with having come from Melinda’s fatal wound. Lindsey
objected and contended that the stains were irrelevant and unduly prejudicial.
He alleged that the blood could not have been placed on the wall at the time of
the murder because he had no visible injuries on his body at the time that police
photographed him after the murder. Tr. Vol. V at 1130-32. The trial court
overruled the objection.
[20] The State also sought to admit evidence that Lindsey had euthanized Melinda’s
dogs shortly after her murder. Lindsey objected to the evidence on the basis
that it was irrelevant and unduly prejudicial, arguing that it was merely
designed to elicit sympathy from any dog lovers on the jury. Tr. Vol. VIII at
1844-45. The State responded that the evidence was relevant for two reasons:
first, the vet records contained notes about the aggressive nature of the pit bull
mix that undermined Lindsey’s claim that an intruder had entered the house
without being attacked by the dog or causing it to bark and wake either Melinda
or Lindsey; and second, Lindsey’s decision to have both of Melinda’s dogs
euthanized so soon after her death along with other evidence showed a pattern
of behavior that was inconsistent with that of a grieving widower and suggested
that he was trying to rid his life of all traces of Melinda. Id. at 1844, 1846. The
trial court overruled Lindsey’s objection.
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[21] During his case, Lindsey sought to admit and play for the jury numerous videos
of interviews that police conducted after they were alerted to the claim that
Manning had confessed to killing Melinda. In their investigation of that claim,
the police interviewed Manning, his father, his ex-wife, and the woman who
had approached the police. Lindsey acknowledged that the interviews were
“on face hearsay,” but claimed that he was not offering them for the truth of the
matter asserted. Tr. Vol. XI at 2587. Instead, he asserted that allowing the jury
to watch the videos would show that the police had not seriously investigated
Manning’s alleged confession. Id. In support of this argument, Lindsey cited
only the example of one officer, in one video, who allegedly stated, “‘[c]ome
on, just tell us anything, we want to get out of here,’” to show the probative
value of the content of the lengthy videos. Id. at 2587. At that time, Manning,
his father, and his ex-wife had already testified during the trial. The trial court
excluded the videos after noting that Lindsey had the opportunity to present
evidence regarding the police investigation and the interviews through other
witnesses. Id. at 2588.
[22] On the morning of the murder, the police had noticed a boot print with a
distinctive tread pattern by the front porch of the house and had photographed
it. During the trial, a detective testified that he believed that they compared the
print to the tread patterns of all the boots in Lindsey’s home, and none had
matched the print. The detective had also gone to various stores to see if he
could locate a boot with a similar tread pattern, but was not able to locate any.
However, after his initial testimony and while the trial was still occurring, the
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detective decided to double check that he had compared the treads on all of
Lindsey’s boots to the print. He discovered that the print did match the tread
pattern of a pair of boots from the home; the matching boots had not been
collected into evidence at the house with the other boots, but had been given to
Lindsey to wear on the morning of the crime because he had exited the house
barefoot. Tr. Vol. X at 2277. The boots were later collected from Lindsey with
his other clothing when he was interviewed at the police station.
[23] When the State was informed of this discovery, the prosecutor informed
defense counsel, who sought to have the detective’s testimony excluded. The
trial court allowed Lindsey to question the detective about his discovery outside
the presence of the jury, and after this questioning, Lindsey renewed his request
to exclude the evidence, claiming that he did not have adequate time to
investigate it. The trial court denied the request to exclude. Before the witness
testified, Lindsey requested a continuance to allow for examination of the
evidence and to preserve the issue for appeal, and the trial court denied the
request.
[24] At the conclusion of the jury trial, Lindsey was found guilty of murder. He was
later sentenced to fifty-five years in the Indiana Department of Correction.
Lindsey now appeals his conviction.
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Discussion and Decision
I. Denial of Continuance
[25] Lindsey argues that the trial court abused its discretion when it denied his
motion for a continuance. The trial court has broad discretion in dealing with a
discovery violation by the State in the alleged late disclosure of evidence to the
defense. Kennedy v. State, 934 N.E.2d 779, 784 (Ind. Ct. App. 2010) (citing
Berry v. State, 715 N.E.2d 864, 866 (Ind. 1999)). We will reverse the trial court’s
ruling in such matters only for an abuse of discretion involving clear error and
resulting prejudice. Berry, 715 N.E.2d at 866. The proper remedy for a
discovery violation is generally a continuance. Id. “Exclusion of the evidence
is an extreme remedy and is to be used only if the State’s actions were deliberate
and the conduct prevented a fair trial.” Id. Failure to alternatively request a
continuance upon moving to exclude evidence, where a continuance may be an
appropriate remedy, constitutes a waiver of any alleged error based on
noncompliance with the court’s discovery order. Warren v. State, 725 N.E.2d
828, 832 (Ind. 2000).
[26] Lindsey contends that the trial court abused its discretion when it denied his
request for a continuance where the State disclosed new evidence in the middle
of the trial. He asserts that the trial court allowed him an inadequate amount of
time in which to investigate and prepare for the new evidence. Lindsey argues
that, even though the officer who testified to the new evidence was not a new
witness, his testimony regarding the boot print was not anticipated, and
Lindsey required more time to properly investigate it. Lindsey further claims
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that the trial court’s statement that the new evidence “[didn’t] go to
admissibility but [to] the weight that a jury is going to give to it” was erroneous
and did not afford him a sufficient remedy for the State’s newly-revealed
evidence. Tr. Vol. X at 2274.
[27] During the trial, a detective, testifying about the boot print with the distinctive
tread pattern found outside the house the morning of the murder, stated that he
believed they compared the print to the tread patterns of all the boots in the
home and had not found any that matched. The detective also went to various
stores to try to locate a boot with a similar tread pattern, but was not able to do
so. However, after his initial testimony, and while the trial was still ongoing,
the detective decided to double check the treads on the boots from Lindsey’s
house and discovered that the print did match the tread pattern of a pair of
boots from the home. The matching boots had not been collected into evidence
at the house with the other boots, but had been given to Lindsey to wear on the
morning of the crime and were later collected from Lindsey with his other
clothing when he was interviewed at the police station. The State informed
defense counsel of this discovery when the State was made aware of the match.
The trial court allowed Lindsey to question the detective about his discovery
outside the presence of the jury, and after this questioning, Lindsey renewed his
objection to the evidence, arguing that he did not have adequate time to
investigate it. Before the witness testified, Lindsey requested a continuance to
allow for examination of the evidence and to preserve the issue for appeal.
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[28] Prior to the challenged testimony by the detective, a picture of the boot print
had been admitted into evidence and the detective had testified about the print’s
distinctive tread pattern, where it had been found, and his efforts to try to match
the print to boots from the house. Testimony was also presented that the police
had given Lindsey a pair of boots to wear to the police station. Therefore, the
only new evidence was that the tread pattern of the boots Lindsey wore to the
police station matched the boot print. The challenged testimony consisted of
the detective stating that he looked at the tread patterns of the boot taken from
Lindsey at the police station and looked at the photograph of the boot print and
noticed that the tread patterns were the same. Tr. Vol. X at 2277-79. The
detective noted that unique markings of the boot print found outside the house
matched the tread patterns of the boots taken from Lindsey. Id. Although
Lindsey alleges that he did not have time to investigate the comparison, at trial,
he did not inform the trial court of what specific analyses or consultations he
believed were necessary and that he needed additional time to perform.
Instead, he only mentioned having “questions” about the size of the print and
the shoe. Id. at 2273. Lindsey “must make a specific showing that the
additional time requested would have aided him in order to show an abuse of
discretion on the part of the trial court.” Clark v. State, 539 N.E.2d 9, 11 (Ind.
1989). Because nothing in the record suggests that a continuance would have
further aided Lindsey, we find that the trial court did not abuse its discretion
when it denied Lindsey’s request for a continuance.
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[29] We further find that the present case is distinguishable from Johnson v. State, 384
N.E.2d 1035 (Ind. Ct. App. 1979), on which Lindsey relies. In Johnson, a
firearms expert was first identified the day before trial and called to testify to
technical issues that concerned the central claim in the case, whether the gun
had fired intentionally or accidentally. The trial court denied Johnson’s request
for a continuance, instead only allowing for a midtrial deposition. This court
found that the midtrial deposition did not provide the defendant adequate time
to prepare for the witness. Id. at 35-36.
[30] Here, the detective’s testimony did not present any similar issues to Johnson.
The challenged testimony in the present case did not involve a highly technical
subject, and Lindsey never suggested he wanted to consult an expert to rebut
the testimony. Most importantly, whether the boot print belonged to Lindsey
or a third party was not central to the question of Lindsey’s guilt. The evidence
merely eliminated the possibility that it belonged to a third-party intruder, but
this is unavailing as Lindsey did not contend the intruders entered through the
front door; he believed they entered through a faulty garage door. The trial
court did not abuse its discretion in denying Lindsey’s request for a
continuance.
II. Juror Inquiry
[31] Lindsey contends that the trial court erred in not questioning Juror 7 more
extensively when the juror decided to remain on the jury. Lindsey asserts that
the trial court had a duty to determine the level of potential prejudice held by
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Juror 7, which was a separate inquiry from whether the juror wished to stay on
the jury for the conclusion of the trial. Lindsey argues that Juror 7’s response
that she would remain on the jury did not reveal if she held any prejudice based
on having to postpone her travel plans and that the trial court should have
made a further inquiry in light of her earlier statement that she may be upset if
her trip was interrupted. Lindsay also takes issue with the phrase “the bitter
end” used by the trial court and claims that Juror 7’s response to the phrase
could indicate the “distastefulness and unpleasantness of her sacrifice with
regard to the travel plans.” Appellant’s Br. at 24.
[32] During voir dire, Juror 7 informed the court that she had plans to attend an out
of town wedding on March 10, 2016, but that she could delay her flight if
necessary and still attend the wedding. Tr. Vol. II at 265-66. When asked if this
would upset her, she replied “maybe a little,” but assured the trial court that she
would not allow it to cause her to reach a quick verdict. Id. As the trial
continued and March 10 drew near, the trial court reminded the parties of Juror
7’s travel plans, noted that there were two alternate jurors, and requested that
the parties consider whether they wanted to excuse Juror 7. Tr. Vol. X at 2316-
17. When it became clear that the trial would not be completed by March 10,
the trial court brought Juror 7 into court and inquired if she wished to be
excused from the jury or stay until “the bitter end.” Id. at 2411. Juror 7 stated
that she would rather stay, and Lindsey declined the opportunity to further
question the juror. Id. at 2411-12.
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[33] A claim of error must be raised during trial in order to be available as an issue
on appeal, and the failure to raise such a claim generally waives that issue for
appeal. Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009). “We nevertheless
sometimes entertain such claims under the rubric of ‘fundamental error.’”
Caruthers v. State, 926 N.E.2d 1016, 1020 (Ind. 2010). Fundamental error is an
error that makes a fair trial impossible or constitutes clearly blatant violations of
basic and elementary principles of due process presenting an undeniable and
substantial potential for harm. Id.
[34] Lindsey argues that the trial court failed to inquire as to any potential bias or
prejudice held by Juror 7, which denied him his right to a fair trial. The right to
a fair trial before an impartial jury is a cornerstone of our criminal justice
system. Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012) (citations omitted). It
requires that a criminal defendant be given “a fair trial by a panel of impartial,
‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). A constitutionally
impartial juror is one who is able and willing to lay aside his or her prior
knowledge and opinions, follow the law as instructed by the trial judge, and
render a verdict based solely on the evidence presented in court. Whiting, 969
N.E.2d at 28 (citing Irwin, 366 U.S. at 722-23). “While courts have a duty to
ensure an impartial jury, we have never held that they have the obligation to
ensure the absence of any bias.” Caruthers, 926 N.E.2d at 1021 (emphasis in
original). If a trial court determines that there is no risk of substantial prejudice,
it has no duty to investigate further into potential juror bias. Id.
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[35] In Caruthers, 926 N.E.2d 1016, which Lindsay cites to in support of his
argument, our Supreme Court held that the determination of whether the trial
court should have proceeded with questioning jurors turned on whether the trial
judge could have reasonably concluded that there was little likelihood of actual
prejudice. Id. at 1021. Here, the trial court asked Juror 7 how she wanted to
proceed when it became apparent that the trial would not conclude before
March 10 and would impede her travel plans and even offered Juror 7 the
opportunity to be released from the jury completely. Taking into account that
Juror 7’s only stated minor concern during voir dire was about the disruption of
her trip, it was reasonable for the trial court to conclude there was no actual
bias on the part of Juror 7. When given the opportunity to be released from the
jury, Juror 7 stated she would rather stay due to the amount of time already
invested in the trial. We conclude that it was reasonable for the trial court to
believe there was no substantial risk of bias in light of Juror 7’s decision to stay
on the jury. Further, just because the trial court used the phrase “the bitter end”
when inquiring as to whether Juror 7 wished to remain on the jury until the
completion of the trial does not imply bias. These were not words used by
Juror 7, and the phrase is a common expression; it is not likely that Juror 7
interpreted this phrase as the trial court expressing a sincere opinion on the
experience of remaining on the jury. Lindsey has not shown that fundamental
error occurred.
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III. Blood Evidence
[36] Lindsey contends that the trial court abused its discretion when it admitted
evidence of blood spots found on the wall near where Melinda was shot that
belonged to him. “Questions regarding the admission of evidence are entrusted
to the sound discretion of the trial court.” Harrison v. State, 32 N.E.3d 240, 250
(Ind. Ct. App. 2015), trans. denied. Accordingly, we review the trial court’s
decision on appeal only for an abuse of that discretion. Id. The trial court
abuses its discretion only if its decision regarding the admission of evidence is
clearly against the logic and effect of the facts and circumstances before it, or if
the court has misinterpreted the law. Id. We do not reweigh the evidence, and
we consider conflicting evidence in a light most favorable to the trial court’s
ruling, but we also consider any undisputed evidence that is favorable to the
defendant. Id.
[37] During the trial, the State sought to admit evidence that a number of spots of
blood were found on the wall near the headboard of the bed where Melinda was
shot, and DNA tests revealed that the blood belonged to Lindsey. Testimony
was presented that the shape, location, and other characteristics of the blood
spatter was inconsistent with having come from Melinda’s fatal wound.
[38] Lindsey argues that it was an abuse of discretion for the trial court to admit the
blood evidence attributed to him that was discovered on the wall near where
Melinda was shot. Lindsey asserts that, because he had no injuries at the time
he was interviewed by the police that were capable of producing such blood
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spatter, the blood must have been from an unrelated incident and was,
therefore, not relevant as to whether he murdered Melinda. Lindsey also
contends that allowing such evidence to be admitted was highly prejudicial
because it invited the jury to speculate as to how the blood ended up on the
wall.
[39] However, the presence of the blood spatter on the wall above the headboard of
the bed in which Melinda was shot was relevant to the investigation. In fact,
prior to trial, Lindsey moved to compel testing of the blood stains, and during
his first trial, he questioned officers extensively about why the blood had not yet
been tested; therefore, it seems that Lindsey believed that establishing the
source of the blood was important. This blood evidence was relevant in
establishing that the blood was not placed there by some unknown perpetrator
and to eliminate other possible suspects and refute Lindsey’s claim that an
unidentified intruder killed Melinda. It was also relevant to establish that the
blood did not come from Melinda’s fatal wound and assist in describing the
crime scene to the jury. The evidence was relevant to demonstrate that the
police thoroughly examined the crime scene and determined the source of the
blood since Lindsey challenged the thoroughness of the investigation in this
case. Additionally, Lindsey contends that it was impossible for his blood to
have been placed on the wall at or near the time of the crime because he had no
obvious open wounds when he was photographed by police the morning after
the crime. However, even if there was no fresh and obvious open wound, there
are other ways that a person’s blood could have gotten on the wall, such as
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bleeding from the nose or mouth with no visible injuries or bleeding from
relatively small wounds such as nicks from a razor that could go unnoticed.
Further, contrary to Lindsey’s contention on appeal, it was not necessary for
the State to prove how the blood got on the wall. The trial court noted that any
dispute about when or how the blood was placed on the wall was for the jury to
resolve, and Lindsey’s concerns were best addressed through cross-examination
of the witness, which Lindsey had an opportunity to do. Tr. Vol. V at 1130-31.
We conclude that the trial court was within its discretion to admit the evidence
pertaining to the blood spatter.
IV. Failure to Admit Interview Videos
[40] Lindsey claims that the trial court abused its discretion when it did not allow
him to admit the video-recorded interviews of individuals that suggested a third-
party committed the murder. We review a trial court’s decision to admit or
exclude evidence for an abuse of discretion. Barnhart v. State, 15 N.E.3d 138,
143 (Ind. Ct. App. 2014) (citing Hardiman v. State, 726 N.E.2d 1201, 1203 (Ind.
2000)). An abuse of discretion occurs where the trial court’s decision is clearly
against the logic and effect of the facts and circumstances presented. Id.
However, errors in the admission or exclusion of evidence are to be disregarded
as harmless error unless they affect the substantial rights of a party. Id. (citing
Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995)). We, therefore, “will find
an error in the exclusion of evidence harmless if its probable impact on the jury,
in light of all of the evidence in the case, is sufficiently minor so as not to affect
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the defendant’s substantial rights.” Id. (citing Williams v. State, 714 N.E.2d 644,
652 (Ind. 1999), cert. denied, 528 U.S. 1170 (2000)).
[41] Lindsey argues that the trial court’s failure to admit the video-recorded
interviews that were related to the confession of a third party was an abuse of
discretion. He asserts that the videos should have been admitted into evidence
because they were relevant to his defense that the police did not conduct a
thorough investigation and failed to follow up on other suspects. Lindsey
argues that the videos were admissible because they were not hearsay since he
sought to admit them for a purpose other than the truth of the statements
contained in the videos, which was to demonstrate that the police did not
conduct a proper investigation. He further contends that the trial court’s failure
to admit the videos denied him his constitutional right to present a complete
defense under the United States Constitution.
[42] Lindsey sought to admit and play for the jury numerous videos of interviews
that police conducted after the police had been made aware of the claim that
Manning had confessed to killing Melinda. In investigating that claim, the
police interviewed Manning, his father, his ex-wife, and the woman who
approached the police. Lindsey acknowledged to the trial court that the
interviews were “on face hearsay,” but claimed that he was not offering them
for the truth of the matter asserted and argued that the videos would show that
the police had not seriously investigated Manning’s alleged confession. Tr. Vol.
XI at 2587. In support of this argument, Lindsey cited only the example of one
officer, in one video, who allegedly stated, “‘[c]ome on, just tell us anything, we
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want to get out of here,’” to show the probative value of the content of the
lengthy videos. Id. at 2587.
[43] When the admissibility of an out-of-court statement is challenged as hearsay,
we first determine whether the testimony describes an out-of-court statement
that asserts a fact susceptible of being true or false. Vertner v. State, 793 N.E.2d
1148, 1151 (Ind. Ct. App. 2003). If the statement does contain an assertion of
fact, we consider the evidentiary purpose of the proffered statement. Id. If the
statement is offered for a purpose other than to prove the truth of the matter
asserted, we consider whether the fact to be proved is relevant to some issue in
the case and whether the danger of unfair prejudice that may result from its
admission outweighs its probative value. Id. Evidence is relevant if it has any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence. Ind. Evidence Rule 401.
[44] We agree that Lindsey’s stated purpose of challenging the thoroughness of the
police investigation into the claim that someone else confessed to the murder is
relevant. However, Lindsey has not shown how the excluded videos would
have established that the police did not conduct a thorough investigation into
another possible suspect. At trial, Lindsey only pointed to a single instance on
one of the several videos he sought to admit in support of his claim that the
police did not seriously investigate the claim that a third party committed the
murder. Here, on appeal, he does not offer anything further regarding the
content of the videos to support his claim. The videos contained almost nine
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hours of interviews, with numerous police officers interviewing four different
individuals concerning the allegations that Manning confessed to the murder of
Melinda. Further, at the point at which Lindsey attempted to have the videos
admitted into evidence, Manning, his father, and his ex-wife had already
testified during the trial, and Lindsey had the opportunity to challenge the
police investigation when cross-examining each of the police officers who
testified. Although Lindsey offered a relevant non-hearsay purpose for the
admission of the evidence, he did not prove that the contents of the videos had
a strong tendency to support his stated purpose. We therefore conclude that
Lindsey failed to establish that the video evidence was relevant and had high
probative value. The trial court did not abuse its discretion excluding the
videos from being admitted at trial.
[45] Lindsey argues that the trial court’s exclusion of the videos violated his right to
present a defense under the United States Constitution. The Constitution
guarantees criminal defendants “a meaningful opportunity to present a
complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting
California v. Trombetta, 467 U.S. 479, 485 (1984)). An essential component of
procedural fairness is an opportunity to be heard. Id. However, the right to
present a defense is not absolute. Schermerhorn v. State, 61 N.E.3d 375, 379
(Ind. Ct. App. 2016), trans. denied. “The accused does not have an unfettered
right to offer testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400,
410 (1988). Evidence must be relevant to be admissible. Evid. R. 402.
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[46] Based on Lindsey’s contentions and the evidence, he has not shown that the
contents of the videos had a strong tendency to support his argument that the
police did not conduct a complete investigation into a possible third-party
suspect in the murder. The proposed video evidence consisted of many hours
of interviews of multiple people, many of whom testified at trial. Lindsey also
was able to cross-examine all of the officers who testified at trial regarding their
investigation. We find that the proposed evidence was irrelevant pursuant to
Indiana Evidence Rule 401 and, therefore, inadmissible under Evidence Rule
402. Lindsey’s right to present a defense does not include a right to present
evidence that does not comply with the evidentiary rules, and thus, the trial
court did not violate his constitutional rights by not admitting the videos.
V. Reading of the Transcript
[47] Lindsey argues that the trial court abused its discretion in refusing to allow him
to read the transcript of his prior trial testimony into evidence at his third trial.
He contends that his case turned on his credibility and the jury had to weigh the
State’s circumstantial case against his testimony that a third party had
committed the crime. Lindsey asserts that the jury could not adequately
perform this task with a detective reading a cold record into evidence and that
the trial court denied his ability to provide the jury with proper demeanor
evidence. He maintains that the trial court’s decision allowed the State to
present misleading and incomplete evidence at trial.
[48] At trial, the State requested permission, during its case-in-chief, to read into
evidence the transcript of Lindsey’s testimony from the prior trial. Lindsay
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asked that he be allowed to be the one to read the testimony to prevent another
reader from adding their own inflections to the testimony. The State argued
that it should be allowed to have its choice of reader to present evidence in its
case-in-chief and that the jury could be confused by having Lindsey read the
prior testimony. The trial court agreed with the State and said it did not think it
appropriate to allow Lindsey to read the testimony. Before the prior testimony
was read, Lindsey raised several objections to it but did not renew his request to
read his testimony into evidence. The State had a detective who had no
previous involvement in the investigation read Lindsey’s prior testimony, and
the trial court admonished the detective to read the words in the transcript
without added inflections.
[49] We note that Lindsey does not provide a standard of review for this issue.
However, “[a] trial court has wide discretion in managing the conduct of a trial
in such a manner that facilitates the ascertainment of truth, insures fairness, and
obtains economy of time and effort commensurate with the rights of both
society and the defendant.” Roberts v. State, 894 N.E.2d 1018, 1027 (Ind. Ct.
App. 2008) (citing Utley v. State, 589 N.E.2d 232, 239 (Ind. 1992), cert. denied,
506 U.S. 1058 (1993)), trans. denied. The trial court’s exercise of discretion will
not be disturbed unless the defendant demonstrates that he or she was
prejudiced by an abuse of that discretion. Id.
[50] Lindsey does not argue on appeal that his prior testimony was inadmissible,
and he does not raise any contention about the manner in which the testimony
was actually read to the jury; his only argument is that he believes he should
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have been the one to read the transcript. The trial court has discretion to
determine how to conduct the trial and how Lindsey’s prior testimony should
be read into evidence, and its decision to allow a witness with no involvement
in the investigation to read the transcript with no embellishments or added
inflection was within its discretion. Additionally, Lindsey was not deprived of
his right to have the jury assess the credibility of the witnesses as he asserts. He
testified at trial, and the jury was able to observe his demeanor and assess his
credibility at that time. Further, Lindsey has not shown how he was prejudiced
by the trial court not allowing him to read the transcript into evidence. The
State sought to admit this evidence during its case-in-chief and chose a detective
who had not been involved in the investigation of the murder to read the
testimony. Before the detective read the testimony, the trial court admonished
him to read the words in the transcript without added inflections, and the
detective agreed. We find that the trial court did not abuse its discretion in not
allowing Lindsey to read the transcript of his prior testimony into evidence
during the State’s case-in-chief.
VI. Declaration of Mistrial
[51] Lindsey asserts that the trial court erred because it declared a mistrial when new
evidence was discovered during his first trial and then later retried him. He
contends that the trial court’s sua sponte declaration of mistrial and his later
conviction violated the prohibition against double jeopardy under the Fifth
Amendment to the United States Constitution. Lindsey argues that he did not
consent to the mistrial, and instead, he requested that the trial be either
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“continued or reset” as opposed to the jury being discharged. Appellant’s Br. at
39. He further maintains that the mistrial was not justified by manifest
necessity because the grant of a mistrial benefited the State, no alternative to
mistrial had been considered, and the extreme remedy of mistrial was not
justified because the jury could have been brought back to hear the case after an
investigation into the new evidence was conducted.
[52] The Double Jeopardy Clause of the Fifth Amendment, applicable to the states
through the Fourteenth Amendment, provides that “[n]o person shall . . . be
subject for the same offence to be twice put in jeopardy of life or limb.” U.S.
Const. amend. V; Benton v. Maryland, 395 U.S. 784, 794 (1969). Once a jury is
impaneled, jeopardy attaches, and a defendant is protected from being twice
placed in jeopardy. Brock v. State, 955 N.E.2d 195, 199 (Ind. 2011), cert. denied,
566 U.S. 909 (2012). The constitutional protection against double jeopardy has
several features. Here, because the first trial ended in a mistrial, we focus on
the defendant’s “valued right to have his trial completed by a particular
tribunal,” Wade v. Hunter, 336 U.S. 684, 689 (1949), which means that the
defendant has a right to have his trial completed by the first jury impaneled to
try him, Oregon v. Kennedy, 456 U.S. 667, 673 (1982). Although this right is
valued, it “must in some instances be subordinated to the public’s interest in fair
trials designed to end in just judgments.” Wade, 336 U.S. at 689. Thus, unlike
a trial that has ended with a judgment on the merits, declaration of a mistrial
does not automatically bar retrial. Arizona v. Washington, 434 U.S. 497, 505
(1978).
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[53] If the trial judge declares a mistrial over the defendant’s objection, the
defendant may be retried only if the government demonstrates that the mistrial
was justified by a “manifest necessity” or that “the ends of public justice would
otherwise be defeated.” Brock, 955 N.E.2d at 200 (quoting United States v. Perez,
22 U.S. 579, 580 (1824)). However, if the defendant consents to the mistrial,
then retrial is permitted as a matter of course, unless the defendant can prove
that the government intentionally goaded him or her into consenting to the
mistrial “to subvert the protections afforded by the Double Jeopardy Clause.”
Id. (quoting Kennedy, 456 U.S. at 676). Therefore, to determine if the State was
permitted to retry Lindsey after his first trial ended in a mistrial, we must
engage in a multi-step analysis. First, we consider whether Lindsey consented
to the trial judge’s declaration of a mistrial. If so, then we consider whether the
government goaded him into consenting. If he did not consent to the mistrial,
then we consider whether it was justified by a “manifest necessity.”
[54] Lindsey contends that he did not consent to the declaration of a mistrial. In
determining whether a defendant has consented to a mistrial, the Indiana
Supreme Court has adopted the approach of the Seventh Circuit and numerous
other federal circuit courts, which have held that a defendant can “tacitly
consent to the mistrial because he failed to raise a contemporaneous objection.”
Id. at 202-03 (citing United States v. Buljubasic, 808 F.2d 1260, 1265-66 (7th Cir.
1987) (numerous additional citations omitted), cert. denied, 484 U.S. 815
(1987)). The requirement of a contemporaneous objection “allows the
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defendant to control the decision whether to go to the first jury or to forego that
option and have a different jury decide his or her fate.” Id. at 203.
[55] In the present case, when the State informed defense counsel of the new
evidence, the parties jointly requested a continuance of trial to permit further
investigation, and the trial court adjourned the trial for two days to permit
further investigation. After this initial agreed continuance, Lindsey filed a
“motion for continuance and/or additional time.” Appellant’s App. Vol. II at 75-
80, in which he listed the large amount of new evidence that has been produced
by police and noted that it was “physically impossible” to review and
investigate all of the recently obtained information before the trial was set to
resume and that to proceed without delay would deprive him of due process.
Id. at 77-80. He requested that “trial either be continued or reset for an
adequate period of time to allow Defendant’s counsel to conduct his due
diligence regarding this recent information.” Id. at 80.
[56] In requesting either a continuance or that the trial be reset, Lindsey sought relief
other than just a continuance, as it seems his request for a reset of the trial was a
request to declare a mistrial and reset the case for a new trial. This conclusion
is further bolstered by Lindsey’s conduct when trial resumed after the
continuance. The trial court informed the parties that it had considered
Lindsey’s right to due process and the large amount of information that Lindsey
needed to investigate and decided that a further continuance of the trial would
impinge on Lindsey’s rights. The trial court also stated that it had conducted
research on the consequences of jeopardy attaching in the case and determined
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that it would declare a mistrial in order to protect Lindsey’s rights. The parties
and court then discussed rescheduling trial and chose a new start date for the
trial. At no time during this discussion, did Lindsey raise any objection to the
trial court’s decision or voice any disagreement with the trial court’s
determination of the need for a mistrial. At that time, Lindsey’s only concern
was whether the court would set bond in the interim. Only after this discussion
and the setting of a new trial date was the jury returned to court and excused
from service. Lindsey had a sufficient opportunity to object if he wanted to do
so, and he chose not to do so. We, therefore, conclude that Lindsey tacitly
consented to the mistrial by failing to lodge an objection. Cf. Brock, 955 N.E.2d
at 203-04 (holding that a defendant’s failure to object will not be deemed to be
consent if the trial court’s declaration of a mistrial does not allow the defendant
the opportunity to object prior to discharging the jury).
[57] Because Lindsey consented to the mistrial, he could be later retried without
finding manifest necessity. However, we find that, even if he had not
consented, a retrial would not have violated double jeopardy principles because
manifest necessity existed. “‘We think, that in all cases of this nature, the law
has invested Courts of justice with the authority to discharge a jury from giving
any verdict, whenever, in their opinion, taking all the circumstances into
consideration, there is a manifest necessity for the act, or the ends of public
justice would otherwise be defeated.’” Brock, 955 N.E.2d at 206 (quoting Perez,
22 U.S. at 580). A trial court has broad discretion in determining whether the
totality of the circumstances shows that there is a manifest necessity for
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declaring a mistrial, and the standard must be applied with attention to the
particular problem confronting the trial court. Id. We review the trial court’s
decision for an abuse of discretion, and it will be affirmed if a high degree of
necessity is found. Id. at 207.
[58] Here, the mistrial was not caused by prosecutorial error, and nothing suggested
that the State wanted a do-over in order to present a stronger case. The trial
court noted that the State had promptly provided the newly discovered
evidence, once found, and although the evidence would potentially change the
way the case was presented by both sides, the evidence was potentially
exculpatory. Accordingly, it was Lindsey, not the State, who stood to benefit
from its discovery, and there is no reason to conclude that the State wanted a
new trial so that it could present a stronger case than it already had. Moreover,
when the mistrial was declared, the State had not begun to present any evidence
at all. Additionally, because the mistrial was declared so early, there was only a
minimal burden on Lindsey to duplicate his efforts as the jury had only just
been chosen, but no evidence had yet been presented. Further, the trial court
made its decision to declare a mistrial after conducting legal research and taking
sufficient time to consider the situation and the effect it had on Lindsey’s rights.
[59] The necessity of the trial court’s decision is examined “in light of the steps taken
by the trial court to avoid a mistrial, including whether counsel had an
opportunity to be heard, whether the trial court considered alternatives, and
whether the trial court’s decision came after adequate reflection.” Id. We
conclude that, based on the totality of the circumstances, the trial court was
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well within its discretion to find there was a manifest necessity for a mistrial.
Lindsey’s later retrial was not barred by double jeopardy.
VII. Admission of Veterinary Records
[60] Lindsey contends that the trial court abused its discretion in admitting
veterinary records that showed his consent to euthanize Melinda’s dogs. The
decision to admit or exclude evidence is within the discretion of the trial court,
and this decision is afforded great deference on appeal. Bell v. State, 29 N.E.3d
137, 141 (Ind. Ct. App. 2015), trans. denied. Accordingly, we review the trial
court’s decision for an abuse of this discretion, which occurs where the trial
court’s decision is clearly against the logic and effect of the facts and
circumstances before it, or if the court misinterprets the law. Id.
[61] Lindsey argues that it was an abuse of discretion for the trial court to admit into
evidence veterinary records that showed his consent to euthanize Melinda’s
dogs. He claims that the records were not relevant, and the State’s reasons for
relevance were not supported by the evidence. Lindsey further asserts that the
records were unduly prejudicial because the evidence was only admitted to
appeal to the sympathies of members of the jury who happened to be dog lovers
and to provoke “an instinct to punish.” Appellant’s Br. at 43.
[62] At the time of her death, Melinda owned two dogs, one of which was an
aggressive guard dog, who would attack anyone who appeared to be fighting
with or attacking Melinda, even in a playful manner. The dog barked
aggressively at anyone who approached the house. However, despite this, there
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was no evidence that the dog barked or attacked the intruder that Lindsey
claimed entered the house and killed Melinda. Less than a month after
Melinda died, Lindsey took both of her dogs to a veterinarian and had them
euthanized.
[63] At trial, the State sought to admit the veterinary records showing that the dogs
were euthanized, arguing the records were relevant for two reasons: (1) they
supported that one of Melinda’s dogs was an aggressive guard dog; and (2) the
fact that the dogs were euthanized so soon after Melinda died indicated that
Lindsey was attempting to rid himself of the things that Melinda loved.
Lindsey took Melinda’s dogs to their regular veterinarian to be euthanized, and
the records contained a notation that one of the dogs needed to be muzzled
during treatments and that the staff should be aware of potential biting. Tr. Vol.
VIII at 1848; State’s Ex. 270. This evidence showed that Melinda’s dog was
aggressive and bolstered the State’s assertion that it was unlikely that an
intruder entered the house and killed Melinda because her dog would have
barked or attacked if any intruder had been present. Additionally, the records
showed that Lindsey took Melinda’s dogs to be euthanized within several
weeks of her murder, which could demonstrate this was part of a pattern of
behavior that was inconsistent with a grieving widower, including Lindsey’s
decision to cremate Melinda and hold no funeral services against her family’s
wishes, and suggested an indifference to his wife and his loss of her. We,
therefore, conclude that the evidence was relevant.
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[64] As to prejudice, “all evidence that is relevant to a criminal prosecution is
inherently prejudicial, and thus the Evidence Rule 403 inquiry boils down to a
balance of the probative value of the proffered evidence against the likely unfair
prejudicial impact of that evidence.” Duvall v. State, 978 N.E.2d 417, 428 (Ind.
Ct. App. 2012), trans. denied. We do not find that this evidence was unduly
prejudicial, and the trial court did not abuse its discretion in admitting it.
[65] Affirmed.
[66] Najam, J., and Brown, J., concur.
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