Pavey v. State

• Decision Date: 05 March 2002
• Docket Number: No. 39A01-0101-CR-19.,39A01-0101-CR-19.
• Citation: 764 N.E.2d 692
• Parties: Ronald PAVEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

764 N.E.2d 692

Ronald PAVEY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 39A01-0101-CR-19.

Court of Appeals of Indiana.

March 5, 2002.

Wilmer E. Goering, II, Eckert Alcorn Goering & Sage, Madison, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Ronald Pavey appeals his conviction for Murder following a jury trial. He presents several issues for our review which we restate as:

1. Whether the trial court abused its discretion when it granted the State's motion for mistrial.

2. Whether his retrial was barred by the Double Jeopardy Clause of the United States Constitution and Article I, Section 14 of the Indiana Constitution.

3. Whether the trial court erred when it admitted into evidence items police seized from his apartment. 4. Whether the trial court erred when it permitted two witnesses to testify regarding his prior bad acts.

We affirm.

FACTS AND PROCEDURAL HISTORY

On April 8, 1999, Barbara Jackson was walking in a wooded area in Switzerland County when she saw a woman's body lying in a creek. Jackson notified police, who identified the dead body as that of Patricia DeChristopher. In the course of their investigation, police learned that DeChristopher was last seen on April 5, 1999, at Hilljack's bar, accompanied by Pavey and his roommate, George Liapis.

Police obtained a warrant to search Pavey and Liapis' apartment, where they seized three black leather jackets and two cameras from the living room, and a blanket from Pavey's bedroom. Subsequent forensic analysis of one of the jackets revealed the presence of DeChristopher's blood, and, after police developed the film in one of the cameras, they discovered a photograph of DeChristopher lying half-nude on Pavey and Liapis' living room floor. In addition, Liapis agreed to talk to police and eventually told them that Pavey killed DeChristopher. Liapis described how he and Pavey drove DeChristopher to a wooded area, where Pavey tried to strangle DeChristopher. Pavey then slit DeChristopher's throat with a knife.

The State charged Pavey with murder. At trial, during his opening statement, Pavey's attorney informed the jury that Liapis had entered a plea agreement with the State, and he stated:

[Liapis] has a story where he's negotiated an agreement with the Prosecutor to testify, but the sword of Damocles is still hanging over his head because if the Prosecutor does not like what his testimony is, then she can withdraw his deal where he gets only less than half of the possible sentence.... So under the possible 65 he gets 30 as long as he testifies to the satisfaction of the Prosecutor. So now there's a version the Prosecutor likes, and it's been bought and paid for. So in evaluating Mr. Liapis's credibility, keep in mind your common sense application here considering that he's got to please the Prosecutor in his testimony.

At the end of Pavey's opening statement, outside the presence of the jury, the State moved for a mistrial on the basis that Pavey's counsel had mischaracterized Liapis' plea agreement in a manner that substantially prejudiced the State. After listening to a tape of the above-referenced portion of the opening statement, and after listening to argument from both parties, the trial court granted the State's mistrial motion and dismissed the jury.

At retrial, Pavey's counsel again referred to Liapis' plea agreement in his opening statement, quoting portions of the agreement regarding its voidability by the State and stating, "Who does [Liapis] want to please if he wants to proceed with his plea agreement?" During the course of the trial, over Pavey's objection, the trial court permitted the State to introduce into evidence the blood-stained leather jacket, the photograph of DeChristopher in the apartment, and fibers found on the blanket taken from Pavey's bedroom. Also over Pavey's objection, the trial court allowed two State's witnesses to testify that Pavey had previously talked to them about killing people. The jury found Pavey guilty as charged, and the trial court entered judgment of conviction accordingly. The court sentenced Pavey to sixty-five years' incarceration. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Mistrial

Pavey first contends that the trial court abused its discretion when it granted the State's motion for mistrial following his opening statement. The decision to grant a motion for mistrial lies within the sound discretion of the trial court. Palmer v. State, 486 N.E.2d 477, 483 (Ind.1985). The trial court's decision is afforded great deference on appeal because the trial court is in the best position to gauge the surrounding circumstances of the event and its impact on the jury. Mack v. State, 736 N.E.2d 801, 803 (Ind. Ct.App.2000),trans. denied. The declaration of a mistrial is an extreme action which is warranted only when no other recourse could remedy the perilous situation. Palmer, 486 N.E.2d at 483.

The United States Supreme Court has addressed the propriety of a mistrial after the defendant's counsel makes "improper and prejudicial remarks during his opening statement to the jury." Arizona v. Washington, 434 U.S. 497, 511, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The court stated:

We recognize that the extent of the possible bias cannot be measured.... In a strict, literal sense, the mistrial was not "necessary." Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.

* * *

An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Indeed, such statements create a risk ... that the entire panel may be tainted. The trial judge, of course, may instruct the jury to disregard the improper comment. In extreme cases, he may discipline counsel, or even remove him from the trial.... Those actions, however, will not necessarily remove the risk of bias that may be created by improper argument. Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. The interest in orderly, impartial procedure would be impaired if he were deterred from exercising that power by a concern that any time a reviewing court disagreed with his assessment of the trial situation a retrial would automatically be barred.

Id. at 511-12, 98 S.Ct. 824.

Here, Liapis' plea agreement includes the following relevant provisions:

2. The Defendant understands that this agreement is conditioned upon the defendant's complete cooperation ... in the investigation and prosecution of Ronald W. Pavey.... Complete cooperation is defined as follows: a. George Liapis shall be completely truthful about his role and the role of Ronald W. Pavey in the murder of Patricia DeChristopher[;]... b. George Liapis shall cooperate fully with [the Prosecutor;] ... [and] d. George Liapis shall testify truthfully [at Pavey's trial.]

As we have noted, in his opening statement, Pavey's counsel told the jury that Liapis' testimony had been "bought and paid for," and that Liapis had to "please the Prosecutor in his testimony." Pavey's counsel also stated that the State could revoke the agreement if it did not "like" Liapis' testimony. We agree with the State that there is a significant difference between the plea agreement, which required that "Liapis shall be completely truthful," and the characterization that Liapis' testimony had been purchased and had to "please" the State. Such a mischaracterization creates a risk that "the entire panel may be tainted."¹See Arizona, 434 U.S. at 512,

98 S.Ct. 824. As such, we "start from the premise that defense counsel's comment[s were] improper and may have affected the impartiality of the jury." See id. at 511, 98 S.Ct. 824.

Pavey maintains that the trial court abused its discretion when it granted the State's mistrial motion because the State failed either to make a prompt objection or request an admonishment. The State responds that its mistrial motion at the conclusion of Pavey's opening statement was timely and that the trial court properly granted the motion. We agree with the State.

In support of his contention, Pavey relies on the rule set out in Etienne v. State, 716 N.E.2d 457, 461 (Ind.1999), that "a defendant [must] object to alleged misconduct... [and] also request an appropriate remedy." Generally, the correct procedure is to request an admonishment. Id. However, if counsel is not satisfied with the admonishment or it is obvious that the admonishment will not be sufficient to cure the error, counsel may then move for a mistrial. Id. Failure to request an admonishment or move for a mistrial results in waiver of the issue. Id.

In Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 848 (1976), our supreme court noted: "a prompt objection affords the trial court an opportunity to prevent or remedy prejudice to a defendant without the considerable waste of time and resources involved in the reversal of a conviction, and for this reason a contemporaneous objection is required as a condition to appellate review." But this rationale does not apply where, as here, defense counsel's misconduct prejudices the State, and there is no risk that the defendant will be wrongly convicted as a result of the misconduct. In addition, where the defendant is appealing from the trial court's grant of the State's motion for mistrial, whether the State has preserved the error for appellate review is not an issue. See Corcoran v. State, 739 N.E.2d 649, 655 (Ind.2000)

(noting appellate recourse not available for review of alleged trial misconduct when com...