Greenlee v. State
| Decision Date | 18 September 1995 |
| Docket Number | No. 82S00-9408-CR-743,82S00-9408-CR-743 |
| Parties | Timothy GREENLEE, Appellant, (Defendant Below), v. STATE of Indiana, Appellee, (Plaintiff Below). |
| Court | Indiana Supreme Court |
Dennis A. Vowels, Evansville, for appellant.
Pamela Carter, Attorney General, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for appellee.
A jury found appellant Timothy Greenlee guilty of attempted murder, a class A felony, Ind.Code Ann. § 35-41-5-1 (West 1986), § 35-42-1-1 (West Supp.1993), and determined that he was a habitual offender. Ind.Code Ann. § 35-50-2-8 (West Supp.1993). He was sentenced to a term of 30 years for the attempted murder conviction and 30 years was added for being a habitual criminal. We affirm.
Greenlee raises three issues on appeal. First, he asserts his right to a fair trial was violated at two points during the trial. Specifically, he cites the trial court's refusal to order a mistrial after a police officer testified about a prior, unrelated arrest. He also believes his fair trial rights were violated when another witness testified about an uncharged act of misconduct.
Second, Greenlee alleges the trial court improperly instructed the jury about the elements of attempted murder. Greenlee maintains the trial court failed to advise the jury adequately that they must find Greenlee intended to kill the victim.
Finally, Greenlee alleges the evidence in the trial was insufficient to convict him of attempted murder.
After spending a few hours drinking beer with Kinsey Ledford and several other acquaintances outside his home in an Evansville neighborhood on August 20, 1993, Greenlee made some insulting comments about Ledford's girlfriend. Eventually Greenlee's remarks prompted an altercation between the two men.
Ledford struck Greenlee in the face. In response, Greenlee knocked Ledford down and began to smash his head against the concrete surface of the street. Next, he grabbed Ledford by the hair and knocked him head-first into a car across the street. As Ledford lay prone on the street, Greenlee removed a knife from his pocket. He "popped" open the blade and said "I'll kill you, I'll cut a hole in you as big as Europe." (R. at 220.)
One of the other people at the scene, Tom Jones, restrained Greenlee and took the knife from his hand. An ambulance eventually took Ledford to the hospital for treatment.
During Greenlee's criminal trial, the deputy prosecutor asked Evansville Police Officer Brian Underwood if he was "familiar with Timothy Greenlee?" Officer Underwood replied, "Yes, I had arrested him in the past." (R. at 156.)
Greenlee's attorney immediately objected to Officer Underwood's statement and moved for a mistrial. He argued Underwood's testimony prejudiced the jurors. The trial court denied the motion and directed the jury to disregard the testimony about Greenlee's prior arrest.
The trial court similarly directed the jury to disregard certain testimony from Jones, who had testified that after the altercation between Greenlee and Kinsey Ledford, he heard that Greenlee had taken a stick and "busted a windshield" on a car. Greenlee's attorney objected to the hearsay testimony and the trial court ordered the jury to disregard the testimony about the windshield.
Greenlee asserts his right to a fair trial was denied when the trial court denied his motion for a mistrial after Officer Underwood testified he had arrested Greenlee once in the past.
Granting a mistrial is within the sound discretion of the trial judge. Duke v. State (1968), 249 Ind. 466, 233 N.E.2d 159. Absent an abuse of that discretion, this Court will not disturb a trial court's ruling. Love v. State (1977), 267 Ind. 302, 369 N.E.2d 1073. Even if evidence of uncharged misconduct is heard by the jury, a prompt admonishment to the jury to disregard the improper testimony is usually enough to support a denial of a motion for mistrial. Schlomer v. State (1991), Ind., 580 N.E.2d 950.
Generally, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Ind.Evidence Rule 404(b). To determine if testimony of prior uncharged misconduct should warrant a new trial, however, "the circumstances must be analyzed as to whether the evidence was intentionally injected or came in inadvertently and as to what degree the defendant was subjected to improper speculation by the jury." Davis v. State (1989), Ind., 539 N.E.2d 929, 931 (citing Henson v. State (1987), Ind., 514 N.E.2d 1064).
In Davis, defendant Danny W. Davis was being tried for burglary. The burglary victims gave police the license plate number to a car that matched the description of the vehicle they saw leaving their home after the burglary. Id. at 930. Testifying for the State, a police officer said that after police traced the license plate number to Davis, he found an outstanding warrant for Davis's arrest. Davis's trial attorney immediately objected to the officer's statement. The trial court admonished the jury to disregard the remark. While noting such admissions tend to prejudice a jury because it may infer the defendant had a criminal record, the Davis Court found no error in admitting the remark. Id. at 931.
This Court decided the officer's remark, while "unfortunate," was stated in such an offhand manner in the middle of a lengthy interrogation without any specific reference to a crime. Id. Similarly, Officer Underwood's statement about the earlier arrest came at the beginning of his testimony and also never included a specific reference to the crime.
Greenlee offers support for his claim that Officer Underwood's remark unfairly prejudiced him by citing White v. State (1971), 257 Ind. 64, 272 N.E.2d 312. In White, however, the Court found a police officer's testimony about prior uncharged conduct warranted a new trial largely because the officer's testimony constituted an evidential harpoon. Id. at 76, 272 N.E.2d at 319.
The Court noted that the officer's only contribution to the trial was his knowledge that the armed robbery defendant had been a suspect in another robbery: "He knew nothing concerning the defendant's involvement, if any, with the crime for which he was standing trial ... We think it apparent that the sole purpose of calling the witness was to wield the evidential harpoon, deliberately calculated by counsel to prejudice the jury against the defendant and his defense." Id. Despite a limiting instruction from the trial court, this Court found the jury was improperly influenced by the officer's statement. Id.
Greenlee's case can be distinguished. Unlike the officer who carried the evidentiary harpoon in White, Officer Underwood knew substantially more about the defendant's connection to the crimes at issue. Officer Underwood was one of the first police officers to arrive after the disturbance was reported and interviewed the defendant. His testimony had relevance in the trial well beyond his mere knowledge of Greenlee's earlier arrest.
The opinion in Burdine v. State (1985), Ind., 477 N.E.2d 544, also helps determine if a remark about uncharged conduct prejudiced the defendant. "The question we must ask is whether, absent the improper comment, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty." Id. at 546 (citing United States v. Hasting, 461 U.S. 499, 510, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983)).
In light of the trial testimony against Greenlee from an eyewitness, it is likely the jury would have returned a verdict of guilty even without the improper testimony. Given the strong testimony against Greenlee and the absence of any evidence in the record of a deliberate attempt to inject Officer Underwood's testimony into trial 1, the trial court acted within its discretion to deny Greenlee's motion for a mistrial. Schlomer, 580 N.E.2d 950.
As for Jones's comment that Greenlee "busted a windshield," we note that Greenlee's objection at trial was based on hearsay, and the trial court sustained his objection and admonished the jury. The court gave what Greenlee requested and there is no error for review on appeal.
Greenlee also asserts the trial court erred by not adequately instructing the jury that it must find beyond a reasonable doubt that Greenlee intended to kill Ledford.
Following the evidence on Count I, Attempted Murder, the trial court gave the following instructions:
Court's Final Instruction No. 1
The crime of Attempted Murder is defined by statute as follows:
A person attempts to commit a crime when, acting with the culpability required for the commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony of the same class as the crime attempted....
To convict the Defendant the state must have proved each of the following elements:
The Defendant
1. on or about August 20, 1993, knowingly
2. engaged in conduct, to-wit: repeatedly striking at and against the head and body of Kinsey Ledford with his hands and feet and then pulling a knife and attempting to stab the said Kinsey Ledford as he lay unconscious on the ground, with the intent to kill Kinsey Ledford.
3. that the conduct was a substantial step toward the commission of the crime of murder.
If the State failed to prove each of these elements beyond a reasonable doubt, you should...
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