Gregory v. State

Decision Date29 June 1989
Docket NumberNo. 33S00-8701-CR-00097,33S00-8701-CR-00097
Citation540 N.E.2d 585
PartiesTony GREGORY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Tony Gregory was convicted after a jury trial of Murder. In sentencing Gregory, the court found the aggravating and mitigating circumstances offset one another and imposed a forty (40) year sentence. Gregory now directly appeals his case to this Court and raises the following issues:

1. whether the trial court abused its discretion by refusing to collectively and individually voir dire the jury after allegations certain jury members had violated the court's admonitions;

2. whether the court erred by admitting evidence of Gregory's subsequent escape from prison;

3. error in admitting Gregory's confession;

4. whether the verdict was contrary to law for failure to establish guilt beyond a reasonable doubt;

5. error in not permitting individual or small group voir dire;

6. error in permitting a police officer witness to sit at counsel table;

7. whether certain exhibits were erroneously admitted into evidence; and

8. error in permitting an officer to testify regarding statements Gregory made to his father.

The facts most favorable to the verdict show that on October 15, 1985, at approximately 2:18 a.m., an Indianapolis operator received a call from a woman asking for help. While the operator attempted to contact police, she heard the woman pleading with someone not to hurt her. The operator believed the woman called the person "Tony" or "Eddie." The operator then heard a loud thud and a sound as though someone had the wind knocked out of him. Just then she reached the sheriff's dispatcher. The dispatcher asked the woman for her address, and she responded "418 S. 26th Street." She also said "please hurry because he has stabbed me." The phone then went dead.

Unfortunately, the address the woman gave was incorrect, and some minutes were lost until the correct address was located. When Officers Riggs and Armstrong approached the house, they saw the storm door was closed but the inside front door was open. The men knocked on the door and announced themselves, but no one responded. After entering the house, Armstrong noticed a closed bedroom door near where he was standing, and a butter knife protruding from the door jamb. Armstrong knocked on the door and again announced himself and Riggs. A male voice answered something to the effect that "everything is okay, it's just a family disturbance." After saying they would leave when they knew everything was fine, or else they would have to kick the door in, they heard, "if you kick in the door, you'll hear from my lawyers."

During this conversation, Riggs realized he could open the door with a bobby pin found in a nearby bathroom. He did so, and upon entering the room, the officers found Gregory sitting on the floor, cradling his nearly nude mother in his arms. The officers assumed she was dead because she was a dark blue color. The room was in disarray, and there was blood on the floor, walls, and bed sheets.

When the officers ordered him to let go of his mother, Gregory grabbed her by the throat and shook her, telling her to tell them everything was alright. When Armstrong tried to grab Gregory, he jumped up and tried to get to the door. The officers subdued and handcuffed him. As they were leading Gregory out of the house, he looked over his shoulder and stated, "I did it for you, Linda." Linda was Gregory's girlfriend.

The officers placed Gregory in a police car and locked the door. They went back to the house to check on Gregory's mother, Nova Gregory. She had a gaping four to five inch wound in her back, near her left kidney. Medics were never able to revive her.

While the officers were inside, Gregory managed to get his hands, still in cuffs, in front of him. He then began kicking, screaming, and beating his head against a window. Eventually, Gregory broke the glass in the left rear window with his head, and somehow managed to hurl himself through the window. He fell on the pavement next to the police car, screaming. The officers cuffed Gregory's legs and locked him in the car. He was taken to the hospital and treated for injuries.

Once in the hospital Gregory again became violent and was strapped to a bed. He yelled and screamed things which at times made no sense and at other times did. Several times he asked about his mother and his girlfriend, Linda. He stated once he had not meant to hurt anyone.

Dr. Doyle treated Tony Gregory; he noticed Gregory smelled of alcohol and had multiple lacerations to his face, scalp, elbows, and right hip. He had swelling and bruising around his eyes, and a large bruise on his upper chest. Dr. Doyle injected xylocaine, a local anesthetic, into the lacerations. X-rays showed Gregory had a broken nose. Also, blood tests revealed he had a blood alcohol content of .147 at 4:30 a.m. A drug screen revealed the presence of phenobarbital, a barbiturate, in Gregory's blood. The test did not detect the amount of drug, only its presence.

At approximately 6:40 a.m. the officers took Gregory to the New Castle Police Department. Officer Stevens gave him his Miranda warnings and Gregory signed a waiver form. Officers described him as alert and cooperative. Stevens questioned Gregory for about an hour before he gave his taped statement. Gregory told Stevens he had two beers earlier that night and had not taken any drugs except what was given him at the hospital.

At trial, Dr. Jeri Horn, a psychologist appointed by the court, testified regarding her evaluation of Gregory's competency to stand trial and whether he was legally insane at the time he killed his mother. She found him competent and not insane, although she did feel he was mentally ill. She diagnosed him as having undersocialized aggressive conduct disorder, or anti-social personality disorder. Dr. Larry Davis, a psychiatrist, also examined Gregory. He testified he was competent to stand trial, but found him to be suffering from the mental disease or defect of depression or dysthymic disorder on October 15, 1985. This was compounded by his use of alcohol and phenobarbital on the night in question. However, he did not find Gregory to be insane at that time.

I

Gregory claims the trial court erred in refusing to collectively and individually voir dire the jury after learning certain jury members had spoken to each other about him during the trial. Prior to each recess, the trial judge admonished jury members not to discuss the case with anyone until they heard all the evidence, and then only with other jury members. During trial, defense counsel moved for a mistrial and requested a hearing. At the hearing Carol Rigney, a spectator, testified out of the jury's presence that she overheard two jurors talking about how bad Gregory looked. One woman said she could not look at him because she thought she would faint and cause a mistrial. She said she had to keep reminding herself he was nineteen and not sixteen years old. Rigney left after hearing this conversation. Still later during trial, defense counsel learned that over a weekend recess, a juror stated at a baseball game that she was a juror on a case in which the boy killed his mother.

The trial court denied defense counsel's motion for mistrial with regard to Carol Rigney's testimony. Counsel then requested the court to interrogate the jurors collectively. The court denied the request and stated the violations were strictly technical because they did not involve issues of guilt or innocence. Counsel then motioned to have the jury sequestered; this was also denied. After learning of the conversation at the baseball game, counsel requested a collective polling of the jury to determine whether they had been exposed prejudicially to anything which would have caused them to decide the case prematurely. The court conducted limited, general, and collective questioning. The court found no reason to sequester the jury. Gregory claims the judge abused his discretion in denying these motions and requests, and he was therefore denied a fair trial.

A trial court has discretion in determining whether to grant a mistrial, and this decision is afforded great deference on appeal because the trial court is in the best position to gauge the surrounding circumstances of an event and its impact on the jury. Reno v. State (1987), Ind., 514 N.E.2d 614, 617. To succeed on appeal from the denial of a motion for mistrial, the appellant must demonstrate the statement or conduct in question was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected. Id., citing Hill v. State (1986), Ind., 497 N.E.2d 1061, 1067. The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision, not the degree of impropriety of the conduct. The appellant carries the burden to show no action other than a mistrial could have remedied the perilous situation into which he was placed. Reno, 514 N.E.2d at 617, citing Bedwell v. State (1985), 481 N.E.2d 1090, 1093.

Gregory argues the trial court should have followed the procedures erected by this Court in Lindsey v. State (1973), 260 Ind. 351, 295 N.E.2d 819. Lindsey was charged with burglary. During the trial, a local newspaper published articles which stated the victim was raped during the burglary. It also stated Lindsey had been involved in a similar situation where the victim was raped on a previous occasion. There was lengthy discussion about the facts of Lindsey's present trial and past encounters with the law that were not factually accurate. The standard set...

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