Brown v. State, No. 82S00-9609-CR-603

Docket NºNo. 82S00-9609-CR-603
Citation703 N.E.2d 1010
Case DateDecember 03, 1998
CourtSupreme Court of Indiana

Page 1010

703 N.E.2d 1010
Thomas BROWN, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 82S00-9609-CR-603.
Supreme Court of Indiana.
Dec. 3, 1998.

Page 1013

Timothy R. Dodd, Evansville, for Appellant.

Jeffrey A. Modisett, Attorney General, Suzann Weber Lupton, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

Thomas Brown appeals his conviction for murder contending that: (1) the trial court granted a mistrial under circumstances that rendered his second trial a violation of the Double Jeopardy Clause of the United States Constitution; (2) evidence of a prior conviction for "burglary" in Illinois did not constitute "burglary" in Indiana and so was erroneously admitted pursuant to Indiana Evidence Rule 609(a); and (3) the trial court erred in refusing his instructions on the lesser included offenses of voluntary manslaughter and reckless homicide, and the defense of voluntary intoxication. We affirm the trial court.

Factual Background

Brown, a tall man in his early twenties, admits that in December 1995 he stabbed and killed Sterling Hall, a sixty-one year old man with a disabled lung, in Hall's Evansville apartment. At trial, his contention was that the killing occurred in self defense.

Undisputed facts

On the day of the killing two strangers, both men, approached Brown at a shopping mall asking for marijuana. Brown took eight dollars from the men, parked them at his girlfriend's apartment, and left to find some marijuana. On the way, Brown met a friend and together they purchased cocaine, which they promptly smoked, with ten dollars Brown had obtained from his girlfriend earlier in the day. Brown then met another friend, Derrick Jones. 1 Brown and Jones, in search of additional funds, identified Hall as a potential buyer of a television set and Brown's girlfriend's apartment as a potential source. The two arrived at Hall's apartment where Hall said he was interested but wanted

Page 1014

to have a look at the television first. Brown left the apartment, and returned to his girlfriend's where he appropriated her cousin's television. He told the two men--still waiting for their marijuana--that he was going to get it for them.

When Brown returned with the television Hall agreed to buy it if he could pay part of the purchase price up front and part at an undefined time in the future, perhaps only a matter of one half hour. Brown accepted fifteen dollars as a down payment and promptly applied these funds to cocaine which he smoked with yet a third friend. About half an hour later, Brown returned to Hall's apartment seeking the balance of the purchase price of the television set. When he left the apartment Hall was dead. Brown stabbed Hall twenty-two times--sixteen times in the hands and six times in the neck. A pathologist testified that all of the stab marks on Hall's hands were defensive wounds indicating that Hall was attempting to fend off an assault. The wounds to the throat were fatal.

Brown's account of Hall's death

The following is Brown's account of the events during his second visit to Hall's apartment. Hall invited him into the apartment and Brown sat at the kitchen table. When Brown asked for the remainder of his money, Hall suddenly became hysterical, made angry gestures, and placed his hand close to a knife which lay on the table. The discussion became increasingly animated and Hall asked Brown to leave the apartment. Brown said he would go, but that he still wanted his money. As Brown was departing, he turned back to see Hall charging him with the knife. Brown upended Hall and again attempted to leave, but Hall recovered and once more, with surprising strength, lunged at Brown with the knife. Brown wrestled the knife away from Hall and began hitting him repeatedly. Eventually Hall fell limply to the ground. Brown then panicked. He saw his clothes were covered in blood, so he shed his jacket and pants, donned Hall's trousers, and left the apartment, leaving his own clothes behind. Brown returned again to the girlfriend's apartment to find his two patient customers still waiting, now in the company of Brown's girlfriend and uncle. 2

Testimony from other sources

That evening, Brown told his uncle that he thought he had killed someone. He fled to Arkansas the next day. Three days later the police discovered Hall's body. Police identified Brown from the items of clothing left in the apartment and traced him to Arkansas where he was arrested. Brown agreed to return to Evansville where he admitted the killing but insisted it was in self defense. Subsequently, the police learned of discrepancies in Brown's statement. For example, he claimed not to have taken Hall's wallet, but the police found the wallet in a pocket of Brown's abandoned trousers. Brown later admitted to taking the wallet. Brown also contended that he did not see or speak to Jones as he left Hall's apartment. However, a witness at trial testified that he saw a man fitting Brown's description leave the apartment and speak with Jones, who had knocked on Hall's door. This occurred shortly after the witness heard a moan from someone apparently in pain inside the apartment. In addition, Brown's girlfriend testified that when she returned from work, she found that her door had been "kicked in" and that the television was missing. Brown had said that the door was "open." The girlfriend also testified that Brown later said that he had been in a fight over drugs and money. Another witness testified to the same effect.

The jury convicted Brown of murder and the trial court sentenced him to sixty-five years in prison. This appeal followed.

I. Double Jeopardy

The first trial began in March 1996 after the jury had been sworn and jeopardy had attached. Livingston v. State, 544 N.E.2d 1364, 1366 (Ind.1989) (a defendant is in jeopardy when the jury is sworn). After Brown's opening argument, a juror, Tyrone Edwards, contacted the trial court expressing concern

Page 1015

that his role as a minister at a local jail would affect his ability to be an impartial juror. The next day, the court held a hearing with Edwards and counsel for both sides present. In response to questions from counsel, Edwards told the court that he was a volunteer minister at the jail counseling inmates. He was concerned that serving on a jury and rendering a guilty verdict could compromise his position as a minister and even potentially his safety. Edwards did not remember disclosing his ministry service on the juror questionnaire, and there is no indication from the record that the State knew of Edwards' ministerial work.

After Edwards returned to the jury room, the court and State agreed that Edwards posed a problem to the impartiality of the jury. Brown's attorney acknowledged that Edwards was "between a rock and a hard place. He either has to be a juror or a minister and he can't be both." The State suggested continuing the trial with eleven jurors. 3 Brown's attorney responded equivocally, but indicated that his consent would probably not be given. Later that same day, the State moved for a mistrial. Brown objected and the court granted the motion based on Edwards' testimony. Brown then moved to dismiss the charges against him on double jeopardy grounds. Brown unsuccessfully renewed his motion to dismiss after a second jury was sworn and prior to commencement of the second trial.

Brown contends that both the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution and Article I, § 14 of the Indiana Constitution barred Brown's retrial. 4 The Fifth Amendment prevents the State from placing a defendant in jeopardy twice for the same offense. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Once jeopardy has attached, the trial court may not grant a mistrial over a defendant's objection unless "manifest necessity" for the mistrial is found. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). In the absence of manifest necessity discharge of the jury serves as an acquittal. Wright v. State, 593 N.E.2d 1192, 1196 (Ind.1992). The standard for manifest necessity dates to Justice Story's classic formulation in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). Under Perez, trial courts are authorized to discharge a jury:

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. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.

Id. at 580, 6 L.Ed. 165. As the Court elaborated in Arizona v. Washington, 434 U.S. at 506, 98 S.Ct. 824, 54 L.Ed.2d 717, these words "do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge." "Necessity" is not to be interpreted literally. There need be only a "high degree" of necessity before concluding that a mistrial is appropriate. Id. An explicit finding of manifest necessity is not required. Rather, the record need only "adequately disclose" the basis for the trial court's decision. Id. at 516-17, 98 S.Ct. 824, 54 L.Ed.2d 717. The decision of the trial court to grant a mistrial will be reversed only for an abuse of discretion, using "manifest necessity" as the benchmark. Ried v. State, 610 N.E.2d 275, 279 (Ind.Ct.App.1993), summ. aff'd. 615 N.E.2d 893 (Ind.1993).

One important factor in determining whether manifest necessity exists is whether the reason for granting mistrial can be laid at the feet of the State. If the error in the proceedings is the fault of the prosecution, then the burden on the State to show

Page 1016

manifest necessity is much higher. This doctrine...

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78 practice notes
  • Brock v. State , No. 38S02–1101–CR–8.
    • United States
    • Indiana Supreme Court of Indiana
    • October 18, 2011
    ...acts as an acquittal and bars reprosecution for the same offense. Jackson v. State, 925 N.E.2d 369, 373 (Ind.2010); Brown v. State, 703 N.E.2d 1010, 1015 (Ind.1998); Wright v. State, 593 N.E.2d 1192, 1196 (Ind.1992). Justice Story articulated the “manifest necessity” standard more than 185 ......
  • Russelll v. State, 49a02-9803-cr-224
    • United States
    • Indiana Court of Appeals of Indiana
    • June 23, 1999
    ...whether a separate and distinct double jeopardy analysis exists pursuant to the Indiana Constitution. See, e.g., Brown v. State, 703 N.E.2d 1010, 1015 n.4 (Ind. 1998) (the court deemed the proposed state constitutional claim waived for failure to provide authority or independent analysis). ......
  • Lockett v. State, No. 02S03-0004-CR-00232.
    • United States
    • Indiana Supreme Court of Indiana
    • May 21, 2001
    ...state constitution, any state constitutional claim is waived. Williams v. State, 724 N.E.2d 1093, 1097 n. 5 (Ind.2000); Brown v. State, 703 N.E.2d 1010, 1015 n. 4 (Ind.1998); Fair v. State, 627 N.E.2d 427, 430 n. 1 (Ind.1993). The defendant contends that Officer Bonar violated his right und......
  • Miller v. State, No. 49S00-9705-CR-0294.
    • United States
    • November 18, 1999
    ...abuse of discretion when the trial court has made a finding on the existence or lack of a serious evidentiary dispute. Brown v. State, 703 N.E.2d 1010, 1019 (Ind.1998); Charlton v. State, 702 N.E.2d 1045, 1048 (Ind.1998); Champlain v. State, 681 N.E.2d 696, 700 (Ind.1997). Where there is no......
  • Request a trial to view additional results
78 cases
  • Brock v. State , No. 38S02–1101–CR–8.
    • United States
    • Indiana Supreme Court of Indiana
    • October 18, 2011
    ...acts as an acquittal and bars reprosecution for the same offense. Jackson v. State, 925 N.E.2d 369, 373 (Ind.2010); Brown v. State, 703 N.E.2d 1010, 1015 (Ind.1998); Wright v. State, 593 N.E.2d 1192, 1196 (Ind.1992). Justice Story articulated the “manifest necessity” standard more than 185 ......
  • Russelll v. State, 49a02-9803-cr-224
    • United States
    • Indiana Court of Appeals of Indiana
    • June 23, 1999
    ...whether a separate and distinct double jeopardy analysis exists pursuant to the Indiana Constitution. See, e.g., Brown v. State, 703 N.E.2d 1010, 1015 n.4 (Ind. 1998) (the court deemed the proposed state constitutional claim waived for failure to provide authority or independent analysis). ......
  • Lockett v. State, No. 02S03-0004-CR-00232.
    • United States
    • Indiana Supreme Court of Indiana
    • May 21, 2001
    ...state constitution, any state constitutional claim is waived. Williams v. State, 724 N.E.2d 1093, 1097 n. 5 (Ind.2000); Brown v. State, 703 N.E.2d 1010, 1015 n. 4 (Ind.1998); Fair v. State, 627 N.E.2d 427, 430 n. 1 (Ind.1993). The defendant contends that Officer Bonar violated his right und......
  • Miller v. State, No. 49S00-9705-CR-0294.
    • United States
    • November 18, 1999
    ...abuse of discretion when the trial court has made a finding on the existence or lack of a serious evidentiary dispute. Brown v. State, 703 N.E.2d 1010, 1019 (Ind.1998); Charlton v. State, 702 N.E.2d 1045, 1048 (Ind.1998); Champlain v. State, 681 N.E.2d 696, 700 (Ind.1997). Where there is no......
  • Request a trial to view additional results

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