Marsh v. State, 879S240

• Decision Date: 31 August 1979
• Docket Number: No. 879S240,879S240
• Citation: 393 N.E.2d 757,271 Ind. 454
• Parties: Walter C. MARSH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 757

393 N.E.2d 757

271 Ind. 454

Walter C. MARSH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 879S240.

Supreme Court of Indiana.

Aug. 31, 1979.

James K. Whitaker, Hammond, for appellant.

Theo. L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

This case is before us on the petition to transfer of defendant, Walter C. Marsh. Defendant was convicted by a jury of voluntary manslaughter, Ind.Code § 35-13-4-2 (Burns 1975), and was sentenced to two to twenty-one years' imprisonment. In a consolidated case in which defendant was charged with assault and battery with intent to kill, Ind.Code § 35-13-2-1 (Burns 1975), the same jury returned a verdict of not guilty by reason of insanity. The Court of Appeals, Third District, in Marsh v. State, (1979) Ind.App., 387 N.E.2d 1346, reversed the judgment of the trial court and granted defendant a new trial. The Court of Appeals held that the trial court erred in failing to admonish the jury after the prosecutor accused defendant, on cross-examination, of pleading and using insanity as a defense to avoid criminal responsibility as he had allegedly done in a prior criminal case, when in fact defendant had not pleaded not guilty by reason of insanity in that case and the case was never brought to trial. We find that the Court of Appeals committed error in reversing the judgment of the trial court and hereby grant transfer and affirm the trial court.

We now decide the following issues which defendant raised on his direct appeal to the Court of Appeals:

1. Whether the trial court erred in denying defendant's motion for mistrial or, in the alternative, failing to admonish the jury following the prosecutor's conduct on cross-examination and outlined above;

2. Whether the verdicts of guilty of voluntary manslaughter and not guilty by reason of insanity of assault and battery with intent to kill are contradictory and therefore repugnant to law;

3. Whether the trial court erred in permitting physical exhibits and photographs to be taken to the jury room over objections of defendant; and

4. Whether the trial court erred in committing defendant to the Indiana Department of Correction "for assignment to the Maximum Security Division of Dr. Normab (sic) Beatty Memorial Hospital in Westville, Indiana, for psychiatric treatment . . . ."

The facts of the case follow.

On December 19, 1975, at approximately 6:00 a. m., defendant entered the house of Clyde and Delpha Wilson through the kitchen door. Clyde Wilson was out-of-doors at that time. Defendant brushed past Delpha Wilson and proceeded upstairs. Clyde, with a very grim look on his face, came into the house immediately behind defendant. Delpha called out to Leota Marsh, her daughter and defendant's estranged wife, that someone was coming upstairs. Delpha then proceeded upstairs. Defendant had joined Leota in the bathroom when the latter was preparing to go to work. Delpha heard defendant yell at Leota, "Remember me, I am the guy that loved you." Delpha heard two shots, one of which struck Leota in the neck. Clyde Wilson, then armed with a shotgun, tried to force open the bathroom door. He was attempting to pry open the door with the shotgun when two more shots came from within the bathroom. These shots struck Clyde in the right side and in the left eye. Delpha went downstairs to summon the police. When she returned upstairs, she heard defendant saying, "Are you dead yet, Leota, are you dead yet?" Police arrived on the scene shortly thereafter. One officer called to defendant who was still upstairs. Defendant started down the stairway, stopped about halfway down and advised the police that he was armed. An officer asked defendant to throw his gun downstairs and defendant complied with his request. The police told defendant to come downstairs with his hands behind his head. Defendant walked down the stairs and was arrested. Officer Richard McKinney testified as to what defendant had told him:

"(Defendant) said that I think you can help her, . . . I just grazed her, but the old man is in bad shape. I didn't mean to shoot him, but he stuck a shotgun through the door."

Clyde Wilson died of his wounds.

I.

While cross-examining defendant, the prosecuting attorney posed the following question:

"Mr. Marsh, isn't it a fact that the only time you have sought psychiatric counseling or have used insanity as a defense are the two times criminal charges were brought against you, once in December of 1975 and another time in February of 1972, isn't that a fact, sir?"

Counsel for defendant objected and moved for a mistrial. He pointed out that defendant had not pleaded not guilty by reason of insanity to the prior criminal charge. In fact, this charge never went to trial. Counsel argued that this question was designed to prejudice the jury by discrediting defendant with regard to his insanity plea. On its face, the question implies that defendant only raised an insanity plea to avoid criminal responsibility. When the motion for mistrial was denied, defendant asked that the judge admonish the jury as to facts not in evidence. The trial judge refused this request as well.

The Court of Appeals held that it was reversible error for the trial court to refuse the admonishment. They cited the case of Adler v. State, (1961) 242 Ind. 9, 175 N.E.2d 358, where the prosecutor commented on final argument:

"This boy (appellant) has an organized gang like the ones in New York that attack people and two of them have already been sent to the reformatory." 242 Ind. at 11, 175 N.E.2d at 359.

The Supreme Court reversed, holding that:

"It is well settled that it is improper for counsel in argument to comment on matters not in evidence, and it is the duty of the trial court to see that they refrain from doing so. On proper objection from the defendant the court must at once require a retraction of any improper statement, or if necessary to insure that the defendant receive a fair trial, instruct the jury to disregard the statement." 242 Ind. at 12, 175 N.E.2d at 359.

We do not dispute the Court of Appeals' application of Adler v. State, supra, to the case at bar. However, we must question how defendant was harmed by the error at the trial court.

Since the trial court denied a motion for mistrial, we start with the proposition that in reviewing the denial of a motion for mistrial, this Court will not disturb the trial court's determination absent an abuse of discretion. Hill v. State, (1979) Ind., 390 N.E.2d 167; Love v. State, (1977) Ind., 369 N.E.2d 1073. In order to convince the reviewing court that the trial court abused its discretion, the defendant must demonstrate that he was placed in a position of grave peril as a result of the improper remark. Hill v. State, supra; Dewey v. State, (1976) 264 Ind. 403, 345 N.E.2d 842. It follows that the failure to admonish the jury must similarly prejudice the defendant.

Normally when we must determine whether a defendant has been harmed or placed in grave peril, we must look at the entire record and weigh the impact of the improper remark or evidence because the jury's verdict of guilty standing alone is not informative on the issue. The instant case, however, provides more weighty evidence on the issue of harm or peril. In this consolidated case, the jury returned two verdicts. On the charge of murder in the first degree, the jury returned a verdict of guilty of voluntary manslaughter. On the charge of assault and battery with intent to kill, the jury returned a verdict of not guilty by reason of insanity. The second verdict indicates that the jury did not buy the inference that defendant was asserting an insanity defense, as he allegedly had done in the past, solely to avoid criminal responsibility. Therefore, it appears that the prosecutor's remark and the judge's failure to admonish the jury in no way harmed defendant.

This issue was the only one considered by the Court of Appeals. Since we have reached a different result, we now turn to defendant's other allegations of error.

II.

Defendant claims that the two verdicts are inconsistent and, therefore, repugnant to law. The state argues that, under the law in Indiana, verdicts can be inconsistent.

"The better rule appears to be that declared by Mr. Justice Holmes in Dunn v. United States, 1932, 284 U.S. 390, (393), 52 S.Ct. 189, 190, 76 L.Ed. 356, (358-359), . . . where it was declared:

" 'Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. * * * Where the offenses are separately charged in the counts of a single indictment the same rule must hold. * * *

" 'That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.' " Flowers v. State, (1943) 221 Ind. 448, 450,

48 N.E.2d 56, 57.

While the Flowers case has never been overruled, we note that this Court and the federal courts have consistently taken care to establish that verdicts are in fact not inconsistent. Indeed, even Justice Holmes wrote that the verdicts were not necessarily inconsistent in Dunn v. United States, supra, the case cited for the general rule. The United States Supreme Court reiterated the general rule in United States v. Dotterweich, (1943) 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48. But they took care to point out that the verdicts were not necessarily inconsistent in Hoag v. New Jersey, (1958) 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913. And in Hamling v. United States, (1974) 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, the Supreme Court cited both Dunn, supra, and Dotterweich, supra, but went on to say that the fact that the jury could not reach a verdict and a mistrial was declared with respect to one count when they found the defendant guilty on another count did not constitute an...