Agnew v. State

• Decision Date: 07 March 1997
• Docket Number: No. 79A02-9511-CR-699,79A02-9511-CR-699
• Citation: 677 N.E.2d 582
• Parties: Martan Sherard AGNEW, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 582

677 N.E.2d 582

Martan Sherard AGNEW, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 79A02-9511-CR-699.

Court of Appeals of Indiana.

March 7, 1997.

Transfer Denied May 14, 1997.

Steven P. Meyer, Merritt Troemel Meyer & Hamilton, Lafayette, for Appellant-Defendant.

Pamela Carter, Attorney General, Rafal Ofierski, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SULLIVAN, Judge.

Martan Sherard Agnew (Agnew) appeals his conviction of rape, a class B felony. ¹ Agnew presents two issues for our review:

1. Whether the behavior of the state's key witness during and after a taped replay of Agnew's testimony interfered with his right to a fair trial.

2. Whether the prosecutor impermissibly shifted the burden of proof to Agnew by stating during closing argument, "if you believe he's guilty, he's guilty."

We affirm.

Agnew and M.R. were students at Purdue University. The two became acquainted when Agnew began dating one of M.R.'s roommates. On the evening of February 19, 1994, M.R. became ill after consuming alcohol and was put to bed by her roommates. M.R. subsequently passed out. She awoke approximately one hour later and discovered that an individual she initially believed to be her ex-boyfriend was on top of her engaged in an act of intercourse. When she became more fully awake, she determined that the individual was Agnew. She immediately screamed and told him to leave her room. Agnew left the room and, after a confrontation with M.R.'s friends, was arrested and subsequently charged with rape.

The witnesses were separated during trial pursuant to an order entered by the court which provided that no witness could be present in the courtroom while any other witness was testifying. Agnew testified that he reasonably believed that M.R. consented to have intercourse with him. M.R. claimed that she did not consent and could not have provided meaningful consent in her state of intoxication. During its deliberation, the jury asked to review the testimony of both M.R. and Agnew regarding Agnew's allegations of consent. The trial court granted the request and brought the jury back to the courtroom to hear the taped testimony. M.R. was sitting among the spectators during the replay of this testimony. She sobbed audibly and cried in her mother's lap during the replay of Agnew's version of events. Later, either while the jury was leaving the courtroom or immediately after the last juror had exited, M.R. reportedly cried out, " '[h]e's a liar.' " Record at 769. Agnew's counsel then moved for a mistrial, claiming that M.R.'s conduct rendered the trial unfair. The court overruled Agnew's motion. The trial court subsequently denied Agnew's Motion to Correct Errors which raised the same argument.

I. Fair Trial

Agnew argues that M.R.'s behavior during the replay of his testimony deprived him of his right to a fair trial. Following the replay of Agnew's testimony, Agnew's counsel moved for a mistrial. We note at the outset that the question whether to grant a mistrial is largely within the discretion of the trial court, and this decision is extended significant deference because the trial court is deemed to be in the best position to assess the impact of a particular event upon the jury. Kelley v. State (1990) Ind., 555 N.E.2d 140. To prevail upon appeal from the denial of a motion for mistrial, the defendant must show that the conduct in question was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected. Id. The defendant must also demonstrate that no lesser curative measure would have remedied the perilous situation in which he was placed. Id.

Agnew claims that the nature of M.R.'s behavior during the replay of the testimony, and the context in which it occurred, gives rise to the presumption that prejudice has in fact occurred. It is true, as Agnew notes, that a rebuttable presumption of prejudice arises from juror misconduct involving out-of-court communications with unauthorized persons. Currin v. State (1986) Ind., 497 N.E.2d 1045. However, we do not believe that this presumption of prejudice is applicable because the behavior in question simply did not occur "out-of-court." The above-mentioned rule, and the cases cited by Agnew in which the rule is discussed, indicate that this presumption should only apply to situations in which the alleged contact between a juror and an unauthorized individual takes place in a truly extra-judicial context. See, e.g. Wolfe v. State (1990) Ind., 562 N.E.2d 414 (probation officer inadvertently walked through jury room during deliberations); Fox v. State (1990) Ind., 560 N.E.2d 648 (members of victim's family alleged to have spoken with jurors during trial intermissions); Kelley, supra 555 N.E.2d 140 (state's sole witness had lunch with jurors during deliberations); Woods v. State (1954) 233 Ind. 320, 119 N.E.2d 558 (state's witnesses visited with jurors during intermissions and recesses). The conduct in question here cannot be said to be "extrajudicial" or to have occurred "out-of-court". Rather, it occurred during the replay of trial testimony in open court and in the presence of the trial judge and counsel for the state and the defendant.

Moreover, we noted above in discussing the standard of review for the denial of a motion for mistrial that a trial judge has significant discretion to grant or deny such a motion because the judge is deemed to be in the best position to assess the impact of potentially prejudicial events upon the jury. To impose a presumption of prejudice in a case such as this would strip the trial judge of this well-placed discretion. The automatic presumption of prejudice simply has no application when the allegedly prejudicial communication is directly observed by the trial judge.

Agnew claims that the trial court's denial of his motion for mistrial was an abuse of discretion because the court failed to rule out the possibility of prejudice by interrogating the individual jurors. Agnew asserts that M.R.'s conduct imposed upon the trial court the duty to determine the prejudicial impact of the behavior by interrogating the jurors. It is true that when an event which may improperly influence the jury occurs, "the trial court should make a determination as to the likelihood of resulting prejudice, both upon the basis of the content of the [event] and the likelihood of its having come to the attention of any juror." Lindsey v. State (1973) 260 Ind. 351, 295 N.E.2d 819, 824.

However, the trial court is obligated to take the remedial action of interrogating the jury only if the court determines, in its discretion, that "the risk of prejudice appears substantial, as opposed to imaginary or remote only". Id. Thus, if the court determines that exposure to assertedly prejudicial information does not raise a substantial risk of prejudice, it has no responsibility to interrogate the jurors or to take further remedial action. The trial court clearly determined that M.R.'s behavior during the replay of Agnew's testimony presented no risk of prejudice when it stated:

I heard her sob very quietly at one point in time. I didn't find that she was disruptive or was putting on a scene here. Certainly you could have asked for a recess, we could have...