Barnes v. State

• Decision Date: 11 March 1998
• Docket Number: No. 47S00-9611-CR-710,47S00-9611-CR-710
• Citation: 693 N.E.2d 520
• Parties: Ivory BARNES, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 520

693 N.E.2d 520

Ivory BARNES, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 47S00-9611-CR-710.

Supreme Court of Indiana.

March 11, 1998.

Michelle L. Woodward, Bedford, for Appellant.

Jeffrey A. Modisett, Attorney General, Katherine L. Modesitt, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

Ivory Barnes was convicted of murder and sentenced to sixty-five years imprisonment. His direct appeal presents several issues for our review that we restate as follows:

I. Did the State prove beyond a reasonable doubt that Barnes knowingly killed the victim despite his claim of alcohol intoxication?

II. Did the trial court err in replacing one of the original jurors with an alternate?

III. Did the trial court err in denying Barnes's motion for a change of venue?

We affirm.

Factual and Procedural Background

On August 9, 1995, Barnes and Gary Lundy were drinking together in a bar in Bedford, Indiana. The two eventually drove in Lundy's truck to Barnes's mother's house nearby. They were alone in the house for an undefined time before Barnes drove away in the truck without Lundy. After the truck stalled at an intersection in Bedford, a police officer, who noticed that Barnes had blood on his hands but made nothing of it at the time, helped him push it to the side of the road. Barnes declined the policeman's offer for a ride and walked back to his mother's house. In the driveway Barnes encountered housemate Melvin Britt, who was just returning from work. Britt testified that Barnes said he wanted to move "a guy inside ... downstairs" before his mother got home. The two talked outside for "a little while" when Barnes's mother arrived. The three then entered the house and Britt found Lundy's body wrapped in a sheet on the kitchen floor. Britt immediately called 911 and Bedford police were dispatched to the scene. Barnes and one of the officers instantly recognized each other from Barnes's car troubles about a half hour earlier. The police found Lundy's body in the kitchen lying in a pool of coagulated blood. One officer testified that blood was spattered "all over" the kitchen. Meanwhile, a verbal altercation ensued outside between Barnes and Britt. Barnes was arrested for disorderly conduct after he ignored three warnings from police to "settle down."

The physical evidence pointed to Barnes as the assailant. His fingerprints were found on two items recovered from the kitchen--a bloody meat cleaver and a metal folding chair. Blood found on several items--the chair, a knife also recovered from the kitchen, Barnes's clothes, and his arms and fingers--was subjected to DNA testing. The resulting genetic profile showed that the blood could not have been Barnes's blood, was the same type as Lundy's, and was found in one of every 6250 Caucasians (Lundy was Caucasian). The forensic pathologist who conducted the autopsy testified that Lundy died from suffocation caused by extensive blunt-force fractures of the larynx. The evidence showed that Lundy also suffered multiple stab wounds and bruises to the neck and facial area. A jury convicted Barnes of murder and he appeals.

I. Intoxication Defense

Barnes's defense at trial was voluntary intoxication. ¹ The trial court instructed the jury on that issue and there is no claim that the substance of those instructions was erroneous. Rather, Barnes contends that the State failed to prove beyond a reasonable doubt that he had the required mental element for murder.

Unless otherwise specified, the following is Barnes's account. He began drinking beer in the afternoon on the day of the killing, first alone and then with his brother and several mutual friends. Barnes eventually made his way to the bar where he met Lundy. The two had no prior acquaintance. Lundy bought Barnes at least one drink and suggested they go to a different bar. Barnes agreed but stated that he wanted to stop at his mother's house to get money. Lundy drove the two to the house where Barnes entered through a window because he did not have a key. As Barnes went to get a beer in the kitchen, Lundy assaulted Barnes from behind with a chair. Barnes testified that he could not remember what happened after that point and that he next saw Lundy on the floor. He "panicked" and decided to leave in Lundy's truck to find his brother back at the bar. When asked by his lawyer if he killed Lundy, Barnes replied: "I can't remember doing it, but everything points to me...." When the State asked Barnes a number of questions about his possible use of the items found in the kitchen against Lundy, Barnes answered over and over: "I don't remember." Although there was testimony that Barnes drank beer throughout the day, the precise amount of alcohol he consumed before going to the bar is unclear. The bartender testified that Barnes had three or four beers and two shots of whiskey. The officer who helped Barnes push Lundy's truck to the side of the road testified that he had no reason to believe that Barnes was intoxicated. Britt stated that Barnes smelled of alcohol when they met at the house and Barnes's brother testified that Barnes was slurring his words outside of the bar when he left with Lundy.

Whether the defendant was so intoxicated that he could not form the mens rea required for the crime is a question for the trier of fact. Owens v. State, 659 N.E.2d 466, 472 (Ind.1995). The conviction will be affirmed if there was substantial evidence of probative value that would have allowed the factfinder to conclude beyond a reasonable doubt that the defendant formed the required mental element. Id. Evidence of capacity to form criminal mens rea includes ability to "devise a plan, operate equipment, instruct the behavior of others or carry out acts requiring physical skill." Terry v. State, 465 N.E.2d 1085, 1088 (Ind.1984). Other relevant considerations include the defendant's ability to attempt to hide his wrongdoing or take himself from place to place after the crime. Montgomery v. State, 521 N.E.2d 1306, 1308 (Ind.1988). If the defendant was able to form the required mental element of the crime, the degree of intoxication is immaterial. State v. Van Cleave, 674 N.E.2d 1293, 1303 (Ind.1996), reh'g granted in part, 681 N.E.2d 181 (Ind.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998).

Barnes was charged with "knowingly" killing Gary Lundy. IND.CODE § 35-42-1-1(1) (1993). "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." IND.CODE § 35-41-2-2(b) (1993). The State contends sufficient evidence was presented showing that Barnes was aware of his actions. We agree. Barnes was able to formulate a plan after the killing--seeking out his brother and telling his housemate Britt that he wanted to move Lundy "downstairs" before his mother got home. Wrapping the body in a sheet and fleeing in Lundy's truck show "knowledge of the criminality of his actions." Van Cleave, 674 N.E.2d at 1304. And despite consuming alcohol before the crime, Barnes was able to engage in acts requiring physical dexterity, including climbing through a window to get into his mother's house, wrapping Lundy's body in a sheet, driving Lundy's truck, and walking back to the house after the vehicle overheated. Indeed, the gravamen of Barnes's testimony was not that he was incapable of "knowing" conduct, but rather that he had no memory of what occurred. Memory loss alone, however, is not inconsistent with ability to form criminal mens rea. See, e.g., Vickers v. State, 653 N.E.2d 110 (Ind.Ct.App.1995) (in prosecution for resisting law enforcement, defendant claimed to remember very little of the pursuit due to intoxication); cf. McClain v. State, 678 N.E.2d 104, 107 n. 5 (Ind.1997) ("It is one thing to say a person acted involuntarily, and quite another to say that the person has no memory of the event.") (citations omitted). To the extent he asserted a lack of criminal culpability due to intoxication, the jury could have found Barnes's account to be not credible in light of the evidence indicating his awareness of his actions before and after the killing. In sum, substantial evidence was presented that would have allowed the jury to conclude beyond a reasonable doubt that Barnes knowingly killed Gary Lundy. ²

II. Juror Dismissal

Barnes next argues that the trial court erred in replacing one of the original jurors with an alternate. Trial judges have "significant leeway" in making this determination because "they see jurors firsthand and are in a much better position to assess a juror's ability to serve without bias or intimidation and decide the case according to law." Jervis v. State, 679 N.E.2d 875, 881-82 (Ind.1997); see also Ind. Trial Rule 47(B). The decision to replace a juror with an alternate is reviewed for an abuse of discretion. Jervis, 679 N.E.2d at 881. Just before opening statements, the juror in question told the court that he knew Barnes's brother from work. It is unclear whether the two men still worked for the same company at the time of trial. Although the juror indicated that he and the brother had never discussed the case, the court dismissed the juror over Barnes's objection.

Barnes correctly observes that a juror's relationship with a State's witness is not per se disqualifying. See, e.g., Grey v. State, 553 N.E.2d 1196, 1199 (Ind.1990). However, that general rule is the beginning, not the end, of the analysis. The claim here turns on the critical role of firsthand observation in determining whether any juror--irrespective of relationships with expected witnesses--may be unable to reach a decision free from extraneous considerations. The juror in this case asserted several times that he believed he could render a verdict based on the evidence. Expressing concerns about his "demeanor," the trial court nonetheless dismissed him and explained that "this juror appeared hesitant...