Ballard v. State, No. 2--273A37

Docket NºNo. 2--273A37
Citation309 N.E.2d 817
Case DateApril 18, 1974
CourtCourt of Appeals of Indiana

Page 817

309 N.E.2d 817
Robert E. BALLARD, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 2--273A37.
Court of Appeals of Indiana, Second District.
April 18, 1974.
Rehearing Denied June 4, 1974. Opinion Superseded 318 N.E.2d 798.

Page 819

Tommy L. Strunk, McDonald & Strunk, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Judge.

CASE SUMMARY

Defendant-Appellant Robert E. Ballard (Ballard) appeals from a jury conviction of Robbery and First Degree Burglary, claiming erroneous admission of evidence, prosecutorial misconduct, his sentence was excessive, insufficient evidence to sustain his conviction, and other numerous trial irregularities.

We affirm.

FACTS

The facts and evidence which support Ballard's conviction are:

On November 24, 1969, Opal Johnson (Opal) was caring for her seven-year-old granddaughter Kristy Lynn Brown (Kristy Lynn) at Opal's home while the child's mother was shopping.

At approximately 3:30 P.M., Opal took Kristy Lynn and drove to the Brown house, intending to meet another granddaughter, Kimberly, age nine, who was due home from school. Nearing the Brown house, Opal noticed a strange car in the driveway.

As she pulled her car into the driveway and parked facing this vehicle, Opal saw a man, whom she identified at trial as Ballard, walking across the lawn from the direction of the front door of the house, carrying a stuffed owl which the Brown family kept on display inside their home. Seeing Opal drive up, Ballard ran back into the house.

As Opal walked around to the rear of the other vehicle and noted its license number, Ballard and a companion then emerged from the house and approached Opal, explaining that they were looking for the residence of a family in the vicinity.

Opal, her suspicions now fully aroused, told Ballard and the other man to stay where they were and, with Kristy Lynn, entered the house to telephone the Sheriff.

Instead of remaining outside as directed, the two men followed her into the house. Testimony at trial established that the doorway of the house was equipped with a self-closing door.

Once inside, Ballard grabbed Kristy Lynn, pointed a handgun to her head, and demanded that Opal surrender her car keys. Opal complied.

Then, after forcing Opal and Kristy Lynn at gunpoint to lie on a bed, Ballard tied their hands and feet with strips from

Page 820

a torn quilt. Shortly thereafter, Kimberly arrived home from school and was similarly bound--this time with an electric sweeper cord.

The two intruders then made their escape by moving Opal's car.

Opal freed herself and telephoned the Sheriff, who, along with Indiana State Police Detective Hart, shortly arrived on the scene to investigate.

On February 9, 1970, Ballard was arrested and charged by a three-count affidavit with the crimes of (1) Robbery, (2) First Degree Burglary, and (3) Automobile Banditry. Ballard was arraigned on these charges in the Hamilton Circuit Court on February 10, 1970.

On February 27, 1970, Ballard entered a plea of not guilty to all counts.

After approximately two months' incarceration, Ballard and his attorney entered into a plea bargaining agreement with the State, pursuant to which he withdrew his plea of not guilty and entered a guilty plea to Second Degree Burglary. As its part of the bargain, the State dismissed Counts I and II (Robbery and Automobile Banditry).

The Hamilton Court accepted Ballard's plea and on April 13, 1970, sentenced him to two to five years' imprisonment for Second Degree Burglary.

On November 22, 1971, Ballard filed a Petition for Post-Conviction Relief, claiming that his guilty plea was not freely given due to the coercive conditions existing in the Hamilton County Jail.

On January 20, 1972, the Hamilton Court granted postconviction relief, set aside Ballard's guilty plea, and ordered him held for retrial on the original, undismissed First Degree Burglary charge. Shortly after this, the State refiled the previously dismissed Robbery charge against Ballard.

These two charges, First Degree Burglary and Robbery, were ultimately venued to the Madison Circuit Court and consolidated for jury trial.

On July 26, 1972, the jury found Ballard guilty of Robbery and First degree Burglary. He was sentenced to ten to twenty-five years' imprisonment for Robbery. As to the First Degree Burglary conviction, however, his sentence was limited to the sentence originally imposed for Second Degree Burglary (two to five years). Both terms of imprisonment were ordered to run concurrently, and credit was given for the period during which Ballard had been incarcerated.

Ballard's trial gives rise to numerous allegations of error by him resulting in these issues being properly raised:

ISSUE ONE

Did the trial court err in admitting irrelevant evidence consisting of the Brown family's stuffed owl and vacuum cleaner?

Additional Facts

At trial, Opal identified State's Exhibit Number One, a stuffed owl, as the one she saw being carried outside the Brown house. State's Exhibit Number Three, a vacuum cleaner, was identified by her as the one whose cord was used to tie up Kimberly. Both exhibits were admitted into evidence over objection.

Contentions of the Parties

In essence, Ballard contends that neither of these exhibits were relevant, and should have been excluded from evidence.

The State disputes this, and in addition claims that the admission of the owl and vacuum cleaner did not prejudice Ballard.

DECISION

CONCLUSION--It is our opinion that State's Exhibits Numbers One and Three (stuffed owl and vacuum cleaner) were relevant to the issues, and properly admitted into evidence.

Page 821

At the very least, this evidence related to Ballard's conduct surrounding the offenses charged, i.e., First Degree Burglary and Robbery. A wealth of Indiana case law supports the admissibility of such evidence. Kiefer v. State, (1960) 241 Ind. 176, 169 N.E.2d 723, cert. denied, 366 U.S. 914, 81 S.Ct. 1089, 6 L.Ed.2d 238; Anderson v. State, (1933) 205 Ind. 607, 186 N.E. 316; Eckert v. State, (1925) 197 Ind. 412, 147 N.E. 150, 151 N.E. 131 (on rehearing).

In addition, the stuffed owl, which was shown to have come from inside the house, was relevant circumstantial evidence to prove Ballard's specific criminal intent and entry. Dixon v. State, (1963) 243 Ind. 654, 189 N.E.2d 715; Marshall v. State, (1949) 227 Ind. 1, 83 N.E.2d 763; Eckert v. State, supra.

As to the vacuum sweeper, Ballard fails to demonstrate how he was prejudiced by its admission. Thus, there could be no finding of reversible error, regardless of the relevancy of the exhibit. Turner v. State, (1972) Ind., 287 N.E.2d 339.

ISSUE TWO

Did the trial court abuse its discretion by refusing to sustain Ballard's Motions for Mistrial based upon (1) the State's display of a handgun, and (2) questions addressed to Opal which prematurely linked Ballard to the crimes before he was identified by her?

Additional Facts

Before Opal identified Ballard as a participant in the crimes, the Prosecutor asked her this question:

'Would you again describe what you saw as you saw the defendant carrying this owl?' (Emphasis supplied.)

Defense counsel objected and moved for a mistrial, claiming that the question suggested Ballard's involvement before he had been identified by the witness. The trial court denied this Motion but sustained Ballard's objection and admonished the jury to disregard the question.

Also, during Opal's testimony, the Prosecutor displayed a handgun in view of the jury before Opal had described the weapon used during the incident inside the house. Ballard's objection to this display was sustained by the trial court, who admonished the jury that the gun was not yet in evidence. Later, Opal described the color and size of the handgun used at the time of the incident. The State then again produced the handgun, apparently in an attempt to have Opal identify it. Before any further identification questions could be asked, Ballard renewed his objection to its display in front of the jury and moved for a mistrial, stating that no foundation had yet been laid for the handgun's identification. The trial court overruled Ballard'd Motion but did warn the State not to wave the gun in front of the jury. The State never again produced or offered the handgun into evidence.

Contentions of the Parties

Ballard contends that denial of these two Motions for Mistrial prejudiced his right to a fair trial.

The State maintains Ballard was not placed in grave peril by either the display of the handgun or the question addressed to Opal. In addition, it claims that the trial court took appropriate curative measures by admonishing the jury and the Prosecutor. As to the display of the handgun, the State argues that it should be free to attempt identification by displaying it to the witness.

DECISION

CONCLUSION--We are of the opinion that the trial court did not abuse its discretion by refusing to sustain Ballard's Motions for Mistrial.

The decision to grant or deny a motion for mistrial lies in the sound discretion of the trial court, and is reviewable

Page 822

solely upon the question of abuse thereof. If a jury is admonished by the trial judge to disregard what has occurred at trial, or if other reasonable currative measures are taken, no reversible error will be found. See, Lolla v. State, (1973) Ind., 294 N.E.2d 798; Gregory v. State, (1972) Ind., 286 N.E.2d 666; Sankey v. State, (1973) Ind.App., 301 N.E.2d 235.

On both occasions (the question addressed to Opal and the successive gun displays) the trial court took appropriate corrective measures by admonishing the jury and warning the State. The record discloses no evidence of deliberate misconduct on the part of the State, or of Ballard being placed in a position of grave peril.

Furthermore, there was evidence that a gun was used by Ballard to threaten Opal...

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7 practice notes
  • Ballard v. State, No. 1174S224
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1974
    ...of Appeals, Second District, the decision and opinion of said Court having been filed on the 18th day of April, 1974 and reported at 309 N.E.2d 817. Rehearing was denied on June 4, [262 Ind. 484] Transfer is hereby granted, and said decision of the Court of Appeals, Second District, is now ......
  • Hendley v. State, No. 2--773A156
    • United States
    • Indiana Court of Appeals of Indiana
    • June 6, 1974
    ...at trial, or if other reasonable curative measures are taken, no reversible error will be found.' Ballard v. State, (1974) Ind.App., 309 N.E.2d 817. 'The admonition to disregard is presumed to correct any alleged error.' Martin v. State, (1974) Ind., 306 N.E.2d See also, Sankey v. State, (1......
  • Daniels v. State, No. 2--873A174
    • United States
    • Indiana Court of Appeals of Indiana
    • June 27, 1974
    ...in no way depends upon observations made of the accused during the improper lineup.' More recently in Ballard v. State (1974), Ind.App., 309 N.E.2d 817, 822 we noted: 'There is an abundance of Indiana cases holding that reversible error will not exist if a witness's in-court identification ......
  • Hopkins v. State, No. 1--574A88
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1975
    ...we must presume that any error was corrected. Prather v. State (1973), Ind.App., 301 N.E.2d 667; Ballard v. State (1974), Ind.App., 309 N.E.2d 817. Page Next, Hopkins argues that it was error for the trial court to give State's instruction on circumstantial evidence. Hopkins contends that t......
  • Request a trial to view additional results
7 cases
  • Ballard v. State, No. 1174S224
    • United States
    • Indiana Supreme Court of Indiana
    • November 12, 1974
    ...of Appeals, Second District, the decision and opinion of said Court having been filed on the 18th day of April, 1974 and reported at 309 N.E.2d 817. Rehearing was denied on June 4, [262 Ind. 484] Transfer is hereby granted, and said decision of the Court of Appeals, Second District, is now ......
  • Hendley v. State, No. 2--773A156
    • United States
    • Indiana Court of Appeals of Indiana
    • June 6, 1974
    ...at trial, or if other reasonable curative measures are taken, no reversible error will be found.' Ballard v. State, (1974) Ind.App., 309 N.E.2d 817. 'The admonition to disregard is presumed to correct any alleged error.' Martin v. State, (1974) Ind., 306 N.E.2d See also, Sankey v. State, (1......
  • Daniels v. State, No. 2--873A174
    • United States
    • Indiana Court of Appeals of Indiana
    • June 27, 1974
    ...in no way depends upon observations made of the accused during the improper lineup.' More recently in Ballard v. State (1974), Ind.App., 309 N.E.2d 817, 822 we noted: 'There is an abundance of Indiana cases holding that reversible error will not exist if a witness's in-court identification ......
  • Hopkins v. State, No. 1--574A88
    • United States
    • Indiana Court of Appeals of Indiana
    • February 24, 1975
    ...we must presume that any error was corrected. Prather v. State (1973), Ind.App., 301 N.E.2d 667; Ballard v. State (1974), Ind.App., 309 N.E.2d 817. Page Next, Hopkins argues that it was error for the trial court to give State's instruction on circumstantial evidence. Hopkins contends that t......
  • Request a trial to view additional results

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