Cabell v. State

• Decision Date: 01 March 1978
• Docket Number: No. 177S20,177S20
• Parties: Jerry Alan CABELL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1176

372 N.E.2d 1176

267 Ind. 664

Jerry Alan CABELL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 177S20.

Supreme Court of Indiana.

March 1, 1978.

Dennis L. Brinkmeyer, Rice & Vanstone, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., David T. O'Malia, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Jerry Cabell, was tried by a jury on a murder charge in July of 1976. After the jury retired to deliberate, the court was informed that the alternate juror had participated in the deliberations. The court brought this matter to the attention of defendant and his attorneys. The defendant moved for the withdrawal of the submission of the cause from the jury. Although this motion is not necessarily the same as a motion for mistrial, it was treated as such by the court and by both parties. A date for a retrial was immediately set. In their briefs both parties treat this motion as a motion for mistrial.

The court granted the motion because the alternate juror participated in the deliberations. ¹ The defendant was again tried by jury and convicted of second degree murder. He now appeals raising the following issues:

1. Whether the trial court erred in denying defendant's motion to dismiss the second trial on grounds of double jeopardy; and

2. Whether there was sufficient evidence to support the verdict.

I.

The defendant correctly contends that the double jeopardy clause of the Fifth Amendment of the United States Constitution protects a defendant in a criminal proceeding against multiple prosecutions for the same offense. He alleges that the first trial in his case should have operated as a bar to a second prosecution for the same offense.

However, retrials are not always barred by the double jeopardy clause. The United States Supreme Court has held that there is a distinction between mistrials declared by the court sua sponte and mistrials granted at the defendant's request. A motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution. United States v. Jorn, (1971) 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543. The Supreme Court has continued to uphold this view in United States v. Dinitz, (1976) 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267, where a retrial was upheld after one of the defendant's attorneys had been excluded from the first trial. The defendant made an unopposed motion for the mistrial, and the Supreme Court held that the second trial did not violate the double jeopardy clause. The Court said:

"The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed . . . ."

424 U.S. at 609, 96 S.Ct. at 1081, 47 L.Ed.2d at 275. Indiana has followed the Supreme Court cases. Mooberry v. State, (1973) 157 Ind.App. 354, 300 N.E.2d 125.

In the instant case the defendant himself requested the mistrial, so the double jeopardy clause does not bar his retrial.

II.

Defendant also contends that there was insufficient evidence to prove the necessary elements of intent and malice. The testimony from the record reveals that police officers had been called to the apartment of Fannie Ross in Evansville. Both the defendant and the deceased, Harold Dorsey, were there. Dorsey threatened the defendant in the presence of the police and was told to leave the apartment. Dorsey had with him a long walking stick and karate sticks called "nunchaka."

After Dorsey left the apartment, the police believed the argument was over and also left. A few minutes later the defendant came out of the apartment and saw that Dorsey was still on the street in front of the apartment. The defendant ran back up to Fannie Ross's apartment and grabbed a gun. He then ran back down to the street and shot Dorsey. There was conflicting testimony as to whether Dorsey tried to strike the defendant first with the karate sticks.

It is well established by this Court that in reviewing a verdict for sufficiency of the evidence, we will not resolve questions of credibility or weigh the evidence. Rather we are constrained to consider the evidence which is most favorable to the state, together with all reasonable inferences to be drawn therefrom. When there is substantial evidence of probative value on each element...