Hampton v. State

• Decision Date: 20 September 2007
• Docket Number: No. 84A05-0701-CR-00048.,84A05-0701-CR-00048.
• Citation: 873 N.E.2d 1074
• Parties: Kevin L. HAMPTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

873 N.E.2d 1074

Kevin L. HAMPTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 84A05-0701-CR-00048.

Court of Appeals of Indiana.

September 20, 2007.

John A. Kesler II, Terre Haute, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Chief Judge.

Appellant-defendant Kevin L. Hampton appeals his convictions for Murder,¹ a felony, Rape,² a class B felony, and Criminal Deviate Conduct,³ a class B felony. Specifically, Hampton claims that the trial court erred in denying his motion for a mistrial, that the evidence was insufficient to support his convictions for rape and criminal deviate conduct, and that the trial court erred in imposing the maximum sentence on all counts and ordering his sentence for murder to run consecutively to the sentences imposed for rape and criminal deviate conduct, which were ordered to run concurrently with each other. Hampton further claims that the trial court erred in ordering those sentences to run consecutively to one that he was already serving in an unrelated cause. Concluding that the evidence was sufficient to support the convictions and finding no other error, we affirm the judgment of the trial court.

FACTS

On May 18, 2000, D.L. invited some friends to her home in Terre Haute to play cards, listen to music, and drink beer. At some point during the evening, D.L. and a friend—Courtney Smith—walked next door and obtained some marijuana from a neighbor. Hampton was at the residence at the time. Thereafter, D.L. and Smith visited some other friends at various locations in Terre Haute.

D.L. returned home the following morning, and one of her friends, Justin Morrison, telephoned D.L. around 2:30 a.m. to find out whether she had returned safely. At some point during the conversation D.L. told Morrison that she heard a knock on her door and that she would talk to him later.

At approximately 11:30 a.m., Smith and Ashley Potter went over to D.L.'s residence. When Smith walked into D.L.'s bedroom, she noticed that D.L. was "sprawled out on the bed [and] naked from the waist down." Tr. p. 122. They decided not to awaken D.L., so they left the house. However, Smith and Potter returned to D.L.'s house later that afternoon. Smith decided to take a shower and she observed some broken glass in the bathroom sink. After showering, Smith walked into D.L.'s bedroom and tried to awaken her. Smith noticed that a blow dryer "was in [D.L.'s] vaginal area." Id. at 159, 173-74. D.L.'s head was lying off the bed, and Smith decided to pull a comforter over D.L. However, she noticed that D.L.'s feet and legs were discolored. She touched one of D.L.'s arms and observed that it was cold. Smith then determined that D.L. was dead. Smith walked around to the other side of the bed and noticed that D.L.'s jeans had been tied around her neck. Smith also observed that a telephone headset was lying halfway beneath D.L.'s body. The phone cord was not connected, and one end of the cord had been ripped out of the wall. Smith also noticed that D.L. was still wearing the shirt she had worn the previous evening. Smith then walked over to a neighbor's house and called the police.

When Dr. Roland Kohr performed an autopsy on D.L., he observed that a blow dryer had been inserted four to five inches into D.L.'s vagina. D.L.'s tongue was also protruding, a condition that is "commonly seen in association with ligature strangulations because of the upward pressure that's maintained on the neck, which causes the laryngeal and tongue-type structures to be pushed upward and outward." Id. at 888. Dr. Kohr also observed that D.L.'s eyes were hemorrhaged, which suggested that D.L. may have been smothered before her jeans were wrapped around her neck. A rape kit was collected, and a vaginal swab taken from D.L. indicated the presence of semen. As a result, a DNA profile was developed and entered into the FBI's national index system.

Dr. Kohr concluded that the cause of D.L.'s death was ligature strangulation and was of the opinion that the sexual intercourse had occurred prior to D.L.'s death. Dr. Kohr also determined that the hairdryer was inserted shortly after D.L.'s death. On March 17, 2005, the FBI found that Hampton's DNA matched the profile that had been entered into the system.

On June 12, 2005, Hampton was charged with murder, felony murder, rape, and criminal deviate conduct. At a jury trial that commenced on November 27, 2005, Joe Topolosek, one of the alternate jurors, commented that "[Hampton] might be involved in multiple murders." Id. at 659. In response, one of the other jurors stated, "you're not supposed to say things like that." Id. at 632. After the matter was brought to the trial court's attention, Topolosek was excused. The trial court also questioned the remaining jurors individually, and it was determined that five of the regular jurors and one alternate had heard the comment. Of those jurors who had heard the remark, only Ryszard Gasiorowski indicated that he did not believe that he could remain impartial. As a result, the trial court excused him from the jury. The remaining jurors indicated that they could disregard the comment and remain impartial. However, Hampton moved for a mistrial, which the trial court denied.

Hampton was found guilty as charged. At a sentencing hearing that was conducted on December 20, 2006, the trial court vacated the conviction for felony murder. Hampton was then sentenced to sixty-five years for murder, twenty years for rape, and twenty years for criminal deviate conduct. The trial court ordered the sentences for rape and criminal deviate conduct to run concurrently with each other and consecutively to the sentence for murder. The trial court also ordered the aggregate sentence to run consecutively to a forty-year sentence that Hampton was already serving in an unrelated matter. In arriving at the sentence, the trial court identified Hampton's lengthy prior criminal history and the nature and circumstances of the crimes as aggravating factors. The trial court also found no mitigating factors. Hampton now appeals.

DISCUSSION AND DECISION

I. Motion for Mistrial

Hampton first claims that his convictions must be reversed because the trial court erred in denying his motion for a mistrial. Specifically, Hampton contends that because the jurors heard alternate juror Topolosek state that Hampton might be a suspect in other murders, "all of the jurors having received this inadmissible information were tainted to such an extent that regardless of their best efforts they could not possibly remain fair and impartial." Appellant's Br. p. 7.

We initially observe that the trial judge's discretion in determining whether to grant a mistrial is afforded great deference because the judge is in the best position to gauge the surrounding circumstances of an event and its impact on the jury. McManus v. State, 814 N.E.2d 253, 260 (Ind.2004). We therefore review the trial court's decision solely for an abuse of discretion. Id. "After all, a mistrial is an extreme remedy that is only justified when other remedial measures are insufficient to rectify the situation." Id.

To prevail on appeal from the denial of a motion for mistrial, the defendant must establish that the questioned conduct "was so prejudicial and inflammatory that he was placed in a position of grave peril to which he should not have been subjected." Mickens v. State, 742 N.E.2d 927, 929 (Ind.2001). The gravity of the peril is determined by considering the probable persuasive effect of the misconduct on the jury's decision, not the impropriety of the conduct. Id. Generally, a timely and accurate admonition is an adequate curative measure for any prejudice that results. Schlomer v. State, 580 N.E.2d at 950, 956 (Ind.1991).

In this case, the trial court immediately excused Topolosek from jury service after being made aware of his comment. The trial court then questioned the jurors individually concerning whether any of them had heard the statement. Tr. p. 682-84, 686, 694-95, 701, 718, 732, 760-61, 766-68, 771-72, 780. Five of the jurors and one of the alternates indicated that they had heard Topolosek's comment. Id. at 635-36, 701-02, 718, 737-38, 782. All of them, except for Gasiorowski, stated that they could disregard the comment and remain impartial. Thereafter, the trial court excused Gasiorowski, and the proceedings continued. Id. at 635-36, 710-11, 722-23, 746, 755, 791-92.

In support of his argument that his motion for mistrial should have been granted, Hampton directs us to Jury Rule 24⁴ and claims that the jury should have been discharged because several of them had "personal knowledge of a material fact" as a result of Topolosek's comment. Appellant's Br. p. 20-21. Notwithstanding this claim, none of the jurors had personal knowledge of a material fact because none of them knew—as a matter of fact—that Hampton might have been involved in other murders. Rather, it is apparent that the jurors who had heard Topolosek's comment had, at most, second-hand information about that possibility. Hence, because the trial court questioned each juror and evaluated his or her response to Topolosek's comments, we cannot say that the trial court abused its discretion in denying the motion for a mistrial. See Tacy v. State, 452 N.E.2d 977, 982 (Ind.1983) (holding that the defendant's motion for a mistrial was properly denied when the trial court questioned each juror individually as to whether he or she could remain impartial following a derogatory remark made by a sheriff's deputy about the defendant that had been overheard by one of the jurors).

II. Sufficiency of the Evidence

Hampton next argues that the evidence was insufficient to support his convictions for rape and criminal deviate conduct. Specifically, Hampton claims that his rape conviction must be set aside because "there...