Kelley v. State
| Decision Date | 07 June 1990 |
| Docket Number | No. 48S04-9006-CR-385,48S04-9006-CR-385 |
| Citation | 555 N.E.2d 140 |
| Parties | Michael P. KELLEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
John M. Eisele, Schuyler, Eisele & Lockwood, Anderson, for appellant.
Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant-appellant Michael P. Kelley was convicted of theft, a Class D felony. The Court of Appeals affirmed the conviction in a non-published memorandum decision. 546 N.E.2d 1297 (Table).
The issue presented in this direct appeal is whether the trial court erred when it denied the defendant's motion for a mistrial following a recess in which jurors sat with the prosecuting witness during lunch.
The criminal charge was filed against the defendant after a retail store security guard observed Kelley leave the store. Believing he left without paying for merchandise, the security guard detained Kelley and returned him to the store security office. Kelley admitted leaving without making payment, but claimed he had forgotten the merchandise was in his possession when he walked outside the store to attend to several small children.
At trial before a six-person jury, the security guard was the sole witness for the prosecution. After his testimony, the State rested. The trial court ordered a lunch recess and admonished the jurors not to discuss the case with anyone. Three of the six jurors, however, ate lunch with the witness security guard.
When trial reconvened, the defendant immediately moved for a mistrial. The trial judge conducted a thorough hearing, in which testimony showed the security guard had been heard to say to the three jurors, "I seen him do it," and one of the jurors had been heard to say, "I could see him do that." It was unknown whether these comments referred to the facts at issue in the trial. The security guard and the three jurors admitted having lunch together, but denied discussing the trial proceedings. Upon questioning, the jurors said the encounter would not influence their ability to render an impartial verdict, and, asked whether they had formed an opinion regarding the security guard's credibility, the jurors responded in the negative. The trial judge denied the mistrial motion.
The crucial fact in dispute in the one-day trial was whether Kelley intended to steal the merchandise when he left the store with it. The evaluation of the security guard's credibility was therefore the most important component of the jury's fact-finding process. The defendant contends that the fairness of this process was prejudicially compromised when the State's only witness socialized with 50% of the jury (one of whom became jury foreman) during the 55-minute lunch break of the one-day 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. Gregory v. State (1989), Ind., 540 N.E.2d 585, 589. To succeed on appeal from the denial of a motion for mistrial, the defendant must demonstrate the 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. 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. Id. While a rebuttable presumption of prejudice arises from juror misconduct involving out-of-court communications with unauthorized persons, such misconduct must be based on proof, by a preponderance of the evidence, that an extra-judicial contact or communication occurred and that it pertained to a matter pending before the jury. Currin v. State (1986), Ind., 497 N.E.2d 1045, 1046. Where there is a factual conflict regarding the existence or content of extra-judicial juror contact, it is within the discretion of the trial court to determine whether the evidence presented showed any irregularity. Id. The defendant has the burden of showing no action other than a mistrial could have remedied the perilous situation in which he was placed. Gregory, 540 N.E.2d at 589.
This court reversed the defendant's conviction and ordered a new trial in ...
To continue reading
Request your trial
-
Jenkins v. State
...a matter pending before the jury." May v. State, 716 N.E.2d 419, 422 (Ind. 1999)(some emphasis added). Similarly, in Kelley v. State, 555 N.E.2d 140 (Ind.1990), a security guard who was the sole State's witness in a criminal theft case had improper contact with jury members. Specifically, a......
-
Ramirez v. State
...is warranted because it can assess first-hand all relevant facts and circumstances and their impact on the jury. See Kelley v. State, 555 N.E.2d 140, 141 (Ind.1990). We therefore review denial of a motion for mistrial only for abuse of discretion. Gregory v. State, 540 N.E.2d 585, 589 (Ind.......
-
Jenkins v. State
...accompanied the jury to and from lunch during the trial, even though there had been no discussion of the case); Kelley v. State, 555 N.E.2d 140, 142 (Ind.1990) (error in failing to grant motion for mistrial after it was discovered that a witness for the prosecution had sat with three of the......
-
Everroad v. State
...the probable persuasive effect of the misconduct on the jury's decision, not the degree of impropriety of the conduct." Kelley v. State (1990), Ind., 555 N.E.2d 140, 141 (citations Neither the photograph nor a description of what it depicted was placed before the jury, and we find the Everr......