Avery v. State, 577S330

Decision Date13 October 1978
Docket NumberNo. 577S330,577S330
Citation269 Ind. 432,381 N.E.2d 1226
PartiesLloyd AVERY, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William T. Enslen, Hammond, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Appellant Avery was charged in two separate indictments with first-degree murder in the shooting deaths of his wife Catherine Avery, and his brother-in-law, James Raub, in 1971. Appellant pleaded guilty to second-degree murder in both cases and was sentenced to imprisonment for fifteen to twenty-five years. This judgment was reversed and the cause remanded in Avery v. State (1976), Ind., 355 N.E.2d 395. On remand, appellant was tried to a jury in the Lake Criminal Court on December 13, 1976. The jury found Avery guilty of second-degree murder in the killing of James Raub and of voluntary manslaughter as to Catherine Avery. Appellant was sentenced by the trial court to imprisonment for two to twenty-one years for voluntary manslaughter and for fifteen to twenty-five years for second-degree murder.

Appellant presents three issues for review concerning: (1) the denial of his motion for mistrial; (2) withdrawal of his motion for change of venue from the judge, and; (3) the sufficiency of the evidence on the issue of appellant's sanity.

I.

During the voir dire of the jury panel, the prosecutor addressed one of the prospective jurors, in the presence of the entire venire, as follows:

"Q. Mr. Berg, you heard the Court say that the defendant has pled not guilty by reason of insanity?

A. Yes, sir.

Q. Do you understand that there is an inference that may be drawn from that plea, that inference being that the defendant is sane (sic) 'I did it, but I was insane but I did it'?

A. Yes, sir."

At this point appellant made a motion for a mistrial to which the trial court responded:

"Denied. Mr. Berg, the question was addressed to you. Therefore, the admonishment from the Court will be addressed to you, but the rest of the jurors and those in the audience should hear this also.

There is no inference that may be drawn from a plea of insanity whatsoever. No inference that the fact and that the defendant admits that he did a thing does not admit anything.

Therefore, no admonition (sic) is to be inferred from that and no fact is to be assumed. Have to be proven. By that plea, nothing has been proven. No evidence has been presented as to whether a death even occurred, let alone who did it.

The plea of insanity raises an additional defense of all other defenses available to the defendant that of not legally responsible. Do you understand that?

A. Yes."

Appellant contends that the purpose of the prosecutor's question was to improperly advise the jurors that an inference could be drawn from a plea of not guilty by reason of insanity. This, it is argued, necessitated the grant of a mistrial.

The decision to grant or deny a mistrial lies in the sound discretion of the trial court, and is reviewable solely on the question of abuse thereof. Bradberry v. State (1977), Ind., 364 N.E.2d 1183, 1187. Further, it is ordinarily assumed that a jury will heed the trial court's admonition that objectionable testimony was improper and should be disregarded, and a prompt admonition is thus normally sufficient to protect the rights of a defendant. Downs v. State (1977), Ind., 369 N.E.2d 1079, 1080. Of course, it is only necessary for a trial court to admonish the jury where an impropriety has actually occurred. In the present case, it may be that the prosecutor's question was intended to impart an erroneous impression on the minds of the jurors. However, we think it is equally plausible that the prosecutor was merely asking Mr. Berg if that was His understanding of the implication of such a plea. In any event, the harm, if any, caused by the question was cured by the court's prompt admonition. In light of the question's ambiguity and the thoroughness of the court's admonition, we hold that there was no abuse of discretion in denying appellant's motion for mistrial.

II.

Appellant next contends that he was improperly influenced by the trial judge to withdraw his motion for change of venue from the judge. He argues that the trial judge advised him that he would waive his right to a jury trial if he moved for a change of judge. A review of the record shows this contention to be utterly without merit.

The record shows that appellant had filed a Motion for Early Trial pursuant to Ind.R.Crim.P. 4(B). At a hearing held in November 6, 1976, the trial court was confronted by a written request from appellant that his attorney file a motion for change of judge. A discussion followed wherein the trial judge attempted to determine whether Avery understood the effect that such emotion would have upon his demand for a speedy trial.

"Court: Counsel indicated to the Court that he had been previously instructed to file a motion for change of venue from the Judge. I had indicated to him that that tolls the time for speedy trial, which you personally made on the 27th of October of 1976.

Avery: I beg you pardon. I didn't understand that.

Court: It tolls the time.

Avery: Increases the time for speedy trial?

Court: No, eliminates your speedy trial. In effect it eliminates your speedy trial until a judge qualifies. Now you have a constitutional right to a speedy trial. You do not have a constitutional right to change of venue from the Judge.

The constitutional right for speedy trial must be given up by you voluntarily and knowingly and intelligently and you have to know the consequences of doing this personally before you by some action of your attorney, waive your right to trial by jury, do you understand that?

Avery: Yes, I do."

The hearing was then adjourned so that appellant could confer with his attorney. When the hearing was reconvened, appellant addressed the court as follows:

"At this time, I would think I would rather have the speedy trial and not the change of...

To continue reading

Request your trial
7 cases
  • Dooley v. State
    • United States
    • Indiana Supreme Court
    • November 13, 1981
    ...did not abuse its discretion in denying defendant's motion for mistrial. Shepard v. State, (1980) Ind., 404 N.E.2d 1; Avery v. State, (1978) 269 Ind. 432, 381 N.E.2d 1226; Bradberry v. State, (1977) 266 Ind. 530, 364 N.E.2d During redirect examination, the prosecution questioned D. D., abou......
  • Dean v. State
    • United States
    • Indiana Supreme Court
    • March 15, 1982
    ...to disregard improper remarks and prompt admonition is normally sufficient to protect the defendant's rights. Avery v. State, (1978) 269 Ind. 432, 381 N.E.2d 1226; Bailey v. State, (1980) Ind., 412 N.E.2d 56. The remark was not one wherein the prosecutor represented his conclusion to be bas......
  • Shepard v. State
    • United States
    • Indiana Supreme Court
    • May 7, 1980
    ...that he could act impartially. The trial court did not abuse its discretion in denying appellant's motion for a mistrial. Avery v. State, (1978) Ind., 381 N.E.2d 1226; Bradberry v. State, (1977) 266 Ind. 530, 364 N.E.2d 1183; Dewey v. State, (1976) 264 Ind. 403, 345 N.E.2d The judgment of t......
  • Wallace v. State, 382S93
    • United States
    • Indiana Supreme Court
    • September 20, 1983
    ...to be sufficient to protect the defendant's rights and remove any error created by the objectionable testimony. Avery v. State, (1978) 269 Ind. 432, 381 N.E.2d 1226. Furthermore, it does not appear that the testimony was the result of the State's misconduct, as it would be if the State purp......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT