Gilmore v. State
| Decision Date | 13 June 2013 |
| Docket Number | No. 40A01–1207–CR–321.,40A01–1207–CR–321. |
| Parties | Stephen L. GILMORE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Jennings Circuit Court; The Honorable Jon W. Webster, Judge; Cause No. 40C01–0502–MR–42.
R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Following a jury trial in Jennings Circuit Court, Stephen Gilmore (“Gilmore”) was convicted of Class C felony reckless homicide. The trial court sentenced him to seven years in the Indiana Department of Correction. Gilmore now appeals and raises seven issues,1 which we restate as:
I. Whether his second trial violated the Indiana Double Jeopardy Clause;
II. Whether the State violated Brady v. Maryland when it failed to produce its forensic pathologist for live testimony at trial;
III. Whether the trial court violated Gilmore's due process and statutory rights by not requiring the State to rebut his self-defense claim as a precondition to trial;
IV. Whether Gilmore's due process rights were violated when the State allegedly mischaracterized the evidence during voir dire;
V. Whether Gilmore received ineffective assistance of counsel;
VI. Whether the evidence was inappropriate to support Gilmore's conviction; and
VII. Whether Gilmore's sentence was inappropriate in light of the nature of the offense and his character.
We affirm.
Gilmore moved to Jennings County in the early 1990s and resided in a mobile home on West Private Drive, which was property owned by his stepfather Bill Akers (“Akers”). Akers and Gilmore's mother, Beverly Akers (“Beverly”) divorced in 1996. Beverly received the back half of the West Private Drive property in the divorce, and she installed a mobile home next to Gilmore's mobile home, which was already located on the property. Later, Akers placed a mobile home for himself on his portion of the West Private Drive property. All of the mobile homes were served by the same water supply, with a single meter, and Akers paid the water bill for all three mobile homes.
On February 18, 2005, Gilmore was living in his mother's mobile home in order to care for her pets while she was in the hospital. Akers called Beverly's home that day to inquire about the water line the three residences shared. Gilmore told Akers he did not have the authority to discuss Akers's proposal to separate the water meters. Shortly thereafter, Akers approached Beverly's residence. Gilmore stood in the front door and showed Akers that he had a gun. Tr. p. 1661. Gilmore did not observe Akers holding a gun but said that he knew Akers was “always armed.” Tr. p. 1662. Gilmore claimed that Akers continued to approach the residence and when Gilmore could not shut the front door, he “figured [Akers] was coming on in[.]” Tr. p. 1663. Gilmore fired two shots, and the second shot hit Akers in his back right shoulder. Gilmore then called 911 and admitted he had shot Akers.
When Jennings County Sheriff Deputy Robert Duckworth (“Deputy Duckworth”) arrived on the scene, he observed Akers face down on the ground between the porch area and sidewalk. Tr. p. 1354. Gilmore was standing next to Akers's right-hand side with a cell phone in one hand and Akers's arm in the other hand. Tr. p. 1354. Deputy Jason Bliton (“Deputy Bliton”) arrived immediately after Deputy Duckworth. They ordered Gilmore to put his hands up. Tr. pp. 157–58. Deputy Bliton then took Gilmore into custody while Deputy Duckworth checked on Akers. Akers was transported to a local hospital. A small caliber handgun was recovered from his pocket. Tr. p. 1407. He was then flown to University of Louisville hospital but was pronounced dead at 8:00 p.m. Dr. Barbara Weakley–Jones (“Dr .Weakley–Jones”), a forensic pathologist, conducted an autopsy the following day. She concluded that Akers died of a single gunshot wound to his neck that entered through his right back shoulder. Tr. pp. 1468, 1484.
Police officers obtained a search warrant to search Beverly's mobile home. They recovered a Ruger semi-automatic .22 rifle from inside the residence on a couch. Tr. p. 1526. They also recovered two shell casings from the scene. Gilmore subsequently admitted to shooting Akers but asserted he did it out of fear. Tr. p. 1729.
On February 23, 2005, the State charged Gilmore with murder. In Gilmore's first trial, which commenced on August 15, 2005, the jury was unable to reach a unanimous verdict, and the trial court declared a mistrial. The jury was not polled concerning the verdict. Thereafter, Gilmore was able to, and did, post a cash bond. On October 28, 2005, the trial court reset the matter for a jury trial to commence on June 12, 2006. Multiple attorneys asked to withdraw from representation of Gilmore due to breakdowns of the respective attorney-client relationships, and the trial was delayed. On September 1, 2010, the trial court issued an order finding that Gilmore was not indigent and had waived his right to counsel by his obstreperous conduct. The trial court also appointed Gilmore appellate counsel for the limited purpose of perfecting an interlocutory appeal. See Gilmore v. State, 953 N.E.2d 583, 584 (Ind.Ct.App.2011).
On his interlocutory appeal, Gilmore argued that the trial court abused its discretion by finding that Gilmore was no longer indigent and by finding that Gilmore had waived his right to counsel by his conduct. Id. at 584–85. We reversed and remanded after concluding that the trial court erred by finding that Gilmore had waived his right to counsel. Id. at 592. We held that Gilmore was entitled to a hearing in “which he should be warned that if his obstreperous behavior persists, the trial court will find that he has chosen self-representation by his own conduct.” Id.
On remand, Gilmore was appointed counsel to represent him, and his second jury trial commenced on June 18, 2012. On June 25, 2012, Gilmore was convicted of Class C felony reckless homicide. On July 18, 2012, the trial court sentenced Gilmore to seven years in the Indiana Department of Correction.
Gilmore now appeals. Additional facts will be provided as necessary.
Gilmore first argues that his Indiana constitutional right against being put in jeopardy twice for the same offense was violated by a second trial. Under Article I, Section 14 of the Indiana Constitution, “No person shall be put in jeopardy twice for the same offense.” However, “[a] new trial is not barred following a hung jury[,]” and “[i]t is within the trial court's discretion to determine whether the declaring of a mistrial due to a hung jury is appropriate under the circumstances of the case.” Menifee v. State, 512 N.E.2d 142, 143 (Ind.1987).
In the first trial, the jury foreman indicated that the jury could not reach a decision after over nine hours of deliberation.
THE COURT: Okay, do you believe that the jury is at an impasse in this case?
[Jury Foreman]: Yes sir, I do.
THE COURT: If you were to go back into the jury room and continue your deliberations, do you believe that the jury could reach a decision in this case?
[Jury Foreman]: No sir.
THE COURT: Do you believe that you speak for your fellow jurors in making that decision?
[Jury Foreman]: Yes, Your Honor.
THE COURT: Is there anyone on the jury that disagrees with [the Jury Foreman's] assessment? [Juror]?
[Juror]: Sorry, (inaudible) about him speaking for the jury. I didn't realize that he had come to tell you we were at an impasse.
THE COURT: Okay, do you believe that you are?
[Juror]: Most likely.
THE COURT: Do you think that if you were to return into the jury room and continue with your deliberations, that the jury could reach a decision in this case? And is there anything that this Court or the attorneys could do in help you arriving at a decision?
[Juror]: No.
Tr. pp. 1006–07. Thus, evidence in the record supports that the jurors were at an impasse. The trial court then found that it was a hung jury and declared a mistrial. Tr. p. 1008. Neither party asked for the jury to be polled.
Despite this evidence, Gilmore argues that the first jury “was not ‘genuinely deadlocked’ “ and that at a subsequent hearing some seventeen months later, on February 12, 2007, he “should have been allowed to re-poll the jury[,]” because he had obtained evidence that the jurors' had reached a not guilty verdict in regard to the murder charge. Appellant's Br. at 17–18. The trial court refused to admit this evidence after concluding that it would be in violation of Indiana Evidence Rule 606(b).
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind.Ct.App.2010), trans. denied (citing Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004)). An abuse of discretion occurs if the trial court's decision is “clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law.” Boatner v. State, 934 N.E.2d 184, 186 (Ind.Ct.App.2010). Under Indiana Evidence Rule 606(b):
[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror.
Moreover, we note that “a verdict may not be...
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