Lay v. State

• Decision Date: 30 November 1995
• Docket Number: No. 73S00-9406-CR-564,73S00-9406-CR-564
• Citation: 659 N.E.2d 1005
• Parties: Roger LAY, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1005

659 N.E.2d 1005

Roger LAY, Appellant, v. STATE of Indiana, Appellee.

No. 73S00-9406-CR-564.

Supreme Court of Indiana.

Nov. 30, 1995.

Rehearing Denied March 7, 1996.

Alex R. Voils, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

On December 12, 1993, in Shelby Superior Court, a jury convicted Roger Lay of Dealing in LSD within one thousand feet of a school, ¹ a Class A felony, and found him to be an Habitual Offender. ² On January 13, 1994, the trial court sentenced Lay to 35 years on the count of Dealing in LSD, enhancing the presumptive sentence of 30 years for a Class A felony by 5 years for aggravating circumstances; it further enhanced the sentence by another 30 years for the finding that Lay was an Habitual Offender. The trial court imposed a total sentence of 65 years; we have jurisdiction over this appeal because the longest sentence imposed was greater than 50 years. ³

Facts

Roger Pike and Jackie Merrick were confidential informants for the Shelby County Drug Task Force and gave the police information that drugs were being sold at Tony Wooten's house. On October 29, 1992, Officer Branson set up a controlled buy using Pike and Merrick. Pike and Merrick were searched and fitted with microphones so that the police could monitor the transaction.

When Pike and Merrick arrived at Wooten's house shortly after midnight, David Deel let them in and led them to the kitchen. Pike and Merrick saw Roger Lay in the living room. Pike saw Lay give Wooten a sheet of LSD; Pike also heard Wooten ask Lay why he had not brought 200 hits.

In the kitchen, Deel asked Pike if he could borrow ten dollars to pay for the LSD. Pike agreed and gave Deel twenty dollars. Deel went into the living room and returned almost immediately to give the twenty dollars back to Pike because Deel had found enough cash to pay for the LSD. Some moments later, Lay left.

Pike and Merrick went into the living room and bought ten hits of LSD from Wooten for fifty dollars. Pike also bought some marijuana from Deel.

Pike and Merrick left Wooten's house and gave the drugs they had bought to the police.

We shall add additional facts as necessary.

Lay raises three issues on appeal:

I. Whether it was reversible error for the trial court to admit certain evidence of uncharged conduct;

II. Whether the mention of a polygraph examination of one of the State's witnesses was an evidentiary harpoon; and

III. Whether the State presented insufficient evidence to support the jury's verdict.

I

Lay claims that the trial court committed reversible error on each of three occasions when it admitted evidence of uncharged conduct allegedly committed by Lay.

A. Officer Haehl's testimony.

Officer Mike Haehl testified that on the evening of October 8, 1992, as part of the investigation of the activities at Tony Wooten's house, Merrick alone bought some LSD from Tony Wooten and then later, together with Roger Pike, returned and bought some more LSD.

There is simply no mention of Lay in Haehl's testimony concerning the history of the investigation. At one point, Haehl approached repeating something Pike said to him about Lay, but defense counsel for Lay objected on hearsay grounds, and the trial court sustained the objection. There is no error here for us to address.

B. Roger Pike's testimony.

Roger Pike testified that he knew Lay from sometime in the 1970's. He also testified that in the time that he had known Lay, from the 1970's until October of 1992, he had often bought drugs from Lay at the local Burger Chef. Lay's lawyer objected and moved for a mistrial, the trial court held a hearing outside the presence of the jury.

After hearing considerable argument by both defense counsel and the prosecutor about whether Pike's testimony was admissible to show a common scheme or plan, the trial court overruled Lay's motion for a mistrial. The trial court did, however, on Lay's motion, admonish the jury that it was to disregard Pike's statements about Lay's drug dealing at the Burger Chef and that it was not to consider them for any reason. Lay's lawyer argued that an admonishment was "insufficient to protect the proceedings."

What the trial court said in ruling on Lay's motion for a mistrial was the following:

I'm going to deny the motion for a mistrial. I will admonish the jury to disregard Mr. Pike's last statement. But I think, you know, this is of the nature of the type of evidence that certainly could be grounds for a mistrial. And if there is repetitive evidence or statements like this, then I will consider declaring a mistrial. I'm very, it makes me very concerned when we get into prior uncharged conduct here. And I think that again without a specific showing that it is admissible outside the presence of the jury, we should not even come close to raising those issues before the jury. We need to try Mr. Pike (sic), or Mr. Lay on the events of October 30th only and leave out all this extraneous material.

Whether to grant a mistrial lies within the discretion of the trial court. Campbell v. State (1993), Ind., 622 N.E.2d 495, 501 (citing Carter v. State (1987), Ind., 512 N.E.2d 158). This court will reverse a trial court's denial of a motion for a mistrial only if an appellant "demonstrates that he was so prejudiced that he was placed in a position of grave peril to which he should not have been subjected." Campbell, 622 N.E.2d at 501. When the alleged ground for a mistrial is the exposure of the jury to evidence of prior bad acts, the gravity of the peril is to be judged by the probable persuasive effect of such evidence on the jury. James v. State (1993), Ind., 613 N.E.2d 15, 22, appeal after remand, (1994) 643 N.E.2d 321.

In Lannan v. State (1992), Ind., 600 N.E.2d 1334, 1339, this court adopted, in its entirety, Federal Rule of Evidence 404(b). That rule provides:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce.

Fed.R.Evid. 404(b). ⁴ See also Campbell, 622 N.E.2d at 500 (Federal Rule of Evidence 404(b) is "an inclusive rule that allows evidence of other crimes, wrongs, or acts, for purposes such as 'proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,' if reasonable notice is provided.").

In this case there was a motion in limine that the trial court had granted prohibiting the prosecution from bringing up Lay's previous convictions. The trial court specifically noted that Pike's comments about Lay's drug dealing at the Burger Chef was not covered by the motion in limine since that conduct was not the subject of prior convictions. Thus, there was no prior notice requested by the defense that the prosecution was going to attempt to use this particular kind of evidence.

At the same time, the prosecution deliberately elicited Pike's testimony about Lay's drug dealing at the Burger Chef and argued strenuously that Pike's testimony about these earlier transactions was admissible as evidence of a common scheme or plan, which it clearly was not. See, e.g., Hardin v. State (1993), Ind., 611 N.E.2d 123 (1993).

Evidence of prior, uncharged bad acts can be highly and unfairly prejudicial, requiring an accused to defend both against the charged crime and the alleged uncharged misconduct. But we think Pike's testimony in front of the jury does not require reversal in this case for three reasons. First, although the prosecution was subject to a motion in limine regarding evidence of Lay's prior convictions, Lay did not request notice that the prosecution intended to use other evidence arguably subject to exclusion under Rule 404(b). Lay was entitled to notice, had he requested it, but he simply did not do so.

Second, the trial court admonished the jury to disregard Pike's testimony about his previous dealings with Lay. "A timely and accurate admonition is presumed to cure any error in the admission of evidence." James, 613 N.E.2d 15, 22 (citing Green v. State (1992), Ind., 587 N.E.2d 1314, 1317).

Third, a trial court is in the best position to judge the potential impact on the jury of such testimony. See James, 613 N.E.2d at 22. When there is sufficient independent evidence of guilt, error in the admission of evidence may be harmless. Id. (Citing Jaske v. State (1989), Ind., 539 N.E.2d 14, 22). In light of the independent evidence of Lay's guilt (see part III below), and especially in light of David Deel's testimony (see part I-C below), we think that there is no substantial likelihood that Pike's testimony about his previous dealings with Lay contributed to the jury's verdict.

For all of these reasons, we hold that the trial court did not abuse its discretion when it denied Lay's motion for a mistrial based on Pike's testimony before the jury about his previous dealings with Lay.

C. David Deel's testimony.

Over Lay's objection, and after more argument about prior bad acts as evidence of a common scheme or plan, the trial court permitted David Deel to testify that between late August or early September of 1992, Lay had sold LSD to Tony Wooten and him ten times. Except for one occasion, the transactions always took place at Wooten's house. The quantities involved were 100 to 300 hits, 90% of which Wooten and Deel would resell, splitting the profits. The transactions always occurred after midnight because Lay worked the...