Ried v. State

• Decision Date: 11 March 1993
• Docket Number: No. 10A04-9109-CR-300,10A04-9109-CR-300
• Citation: 610 N.E.2d 275
• Parties: Steven RIED, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 275

610 N.E.2d 275

Steven RIED, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 10A04-9109-CR-300.

Court of Appeals of Indiana,

Fourth District.

March 11, 1993.

Vicki L. Carmichael, Chief Public Defender, Jeffersonville, for appellant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

After his first trial ended in a mistrial, Steven Ried (Ried), 36, was convicted of two counts of child molestation, ¹ a class C felony, and found to be a habitual offender. He was sentenced to forty-six (46) years in prison. Ried claims his second trial was barred by double jeopardy, and that the court erred in admitting the testimony of M.H., who claimed she had been molested by Ried, since she had previously recanted those allegations.

We affirm.

FACTS

On April 2, 1991, during voir dire in Ried's first trial, Clark County Deputy Prosecutor J. Christopher Sturgeon asked the panel of prospective jurors if they or a member of their immediate family had been a victim of a crime. Juror No. 104 (Juror) responded in the affirmative. ² During Sturgeon's examination of the Juror, it was David E. Mosley, Ried's public defender, questioned the Juror about the child molestation case. The Juror disclosed, due to the insistence of Mosley, that her daughter was the victim of the molestation, and that the accused was a stranger. When asked whether the Welfare Department was involved in her daughter's case, the Juror responded, "[n]ot Clark County Welfare Department.... Floyd County." R. 534-36 (emphasis added). Sturgeon was silent during this interchange and did not interject at any time.

revealed that the crime was a child molestation; she was satisfied with the outcome of the case; and that the Juror believed that if impaneled, she could base her decision solely on the evidence presented at trial. R. 511-15.

The Juror was impaneled and sworn. After a lunch break, Mosley informed the court that he learned that the Juror was the mother of an alleged victim in a child molestation case that Deputy Prosecutor Sturgeon had prosecuted the week before in the same court--in Clark County. Since that case resulted in an acquittal, Mosley argued that the Juror could not possibly be impartial and requested that the court strike her and replace her with the alternate juror. Sturgeon objected stating that Mosley had questioned the Juror extensively, and it was Mosley's oversight not to question the Juror concerning the outcome of her daughter's case. Sturgeon added that the Juror was forthcoming and that she answered all of defense counsel's questions honestly. R. 644-45. The Court denied the request to strike the Juror.

Ried, by counsel, then requested that, in light of this new information, he be allowed to further voir dire the Juror. The court denied the request. Ried moved for a mistrial on the grounds that a juror was tainted--i.e., the Juror was the mother of an alleged victim in a child molestation case tried the week before. The court denied the motion for a mistrial stating that the jury had been admonished, and that there was no reason to believe the Juror would be more biased than any other juror. Counsel presented opening arguments and one witness testified before the court adjourned for the day.

Upon reconvening the next morning, the court, sua sponte, declared a mistrial based on the inaccurate responses contained in the Juror's jury questionnaire. The Juror had four biological children, but had legal custody of only two. She was not the legal guardian of the daughter who was the alleged child molest victim. Nevertheless, the Juror responded "no" to a question on the jury questionnaire inquiring whether anyone in her immediate family had been a witness in a lawsuit. The court stated that whether the Juror answered untruthfully, or had inadvertently supplied misinformation, her answers in the questionnaire did not reflect what the court had learned to be the truth. R. 700.

The State objected to the court's declaration of mistrial, stating that no juror misconduct occurred. Sturgeon reiterated that the Juror truthfully answered all the questions posed to her during voir dire. He added that although the Juror was on his witness list for the previous trial, he had not spoken with, nor had he ever seen the Juror before. Ried did not object to the mistrial.

Ried moved the court to dismiss the case because of prosecutorial misconduct, which was denied. The court found that Sturgeon did not deliberately mislead the court. In Ried's offer of proof in support of his Motion to Dismiss on the grounds of prosecutorial misconduct, Sturgeon testified: he was familiar with the Juror only from her sitting on the present jury; the Juror appeared on his witness list in the molestation case which was tried one week earlier; and the case ended in an acquittal. Sturgeon also stated he did not strike the Juror because he felt she may have been favorable to the prosecution, but he also was concerned about her possible presence on the jury since she stated she was satisfied with the outcome of her daughter's case. When asked whether he had revealed his knowledge of the Juror's identity to the defense, Sturgeon responded, "[n]o, and I felt no obligation to, either." R. 704. At the conclusion of the offer of proof, Ried On April 11, 1991, the court conducted a hearing on Ried's Motion to Dismiss on the grounds of double jeopardy. The Juror testified concerning the discrepancies between her answers on the jury questionnaire and during voir dire, i.e., why she replied "no" to questions in the jury questionnaire pertaining to whether she or a member of her immediate family had been a party or a witness in a lawsuit. She explained that since the daughter who was the alleged child molest victim was not her legal daughter, the girl was not part of her immediate family. R. 728. She stated she was not aware that Sturgeon had prosecuted her daughter's molestation charge at the time of Ried's trial or that she appeared on Sturgeon's witness list. She was not notified of her daughter's trial and was never contacted by Sturgeon. The Juror also revealed that her daughter's father was convicted of molesting the daughter four years before the present case.

                withdrew his motion for a mistrial (which had been denied on the previous day) in order to "protect [his] double jeopardy rights."   R. 707
                

Mosley then questioned the Juror.

Mosley: [during voir dire] I asked you a series of questions about the Floyd County Welfare Department.

Juror: Right.

Mosley: Right, and I was also asking you questions about the case that Mr. Sturgeon first asked you whether it was a child molestation case. Do you remember him asking you that question?

Juror: Yes.

* * * * * *

Mosley: Alright. Later on in my questioning, you stated, I've listened to the tape and tell me if you remember, you stated that that case was tried in Floyd County, can you explain what you meant by that?

Juror: Referring to her father. (On voir dire, the Juror stated that the accused was a stranger).

Mosley: Referring to her father's case four years ago?

Juror: Yes.

Mosley: Wasn't she a witness in that case?

Juror: She was. Well it was on videotape.

* * * * * *

Mosley: Her father would have been a defendant or party in that case if he--if it was against him, correct?

Juror: Right, I guess.

Mosley: Why didn't you bring these facts out to our attention, ma'am?

Juror: I said that my daughter had been molested.

Mosley: Correct. And you said that the case had been tried in Floyd County.

Juror: With her father it was. I had forgot all about her dealings in this other case. (which took place in Clark County one week before she was impaneled as a juror).

R. 734-36 (emphasis added).

On April 16, 1992, Ried's second trial began. State's witness, M.H., then 15, testified that Ried had been her stepfather five years earlier. She stated that Ried had molested her from the time she was very young (three, four, or five years old) until she was eleven or twelve years old. The Department of Public Welfare investigated, but dropped the case. Although M.H. had, at one time, recanted her allegation that Ried molested her and accused another man (who had also been her stepfather) of the offense, she stated she had done so because she was afraid that Ried would carry out his threats to kill her mother if she (M.H.) ever told of the molestation.

DECISION

Ried maintains he did not consent to a mistrial, nor waive his right to raise his double jeopardy claim. We disagree. The Fifth Amendment and article one, section fourteen of the Indiana Constitution provide that a person shall not be placed in jeopardy twice for the same offense. The protection against double jeopardy will not prevent reprosecution if: 1) a defendant waives his right to raise double jeopardy claims; 2) a defendant consents to the termination of proceedings after jeopardy has attached; or 3) the termination is required by "manifest necessity." Whitehead v. State (1983), Ind.App., 444 N.E.2d 1253, 1254. A defendant waives his right to raise double jeopardy by failing to make a timely objection to the discharge of the jury or to the court's declaration of a mistrial. Id.; Jester v. State (1990), Ind., 551 N.E.2d 840, 842. If the defendant moves for or consents to a mistrial, he also forfeits his right to raise double jeopardy in further proceedings, unless the motion was necessitated by governmental conduct "intended to provoke the defendant into moving for a mistrial." Id., citing Oregon v. Kennedy (1982), 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416. ³

When the court stated its intentions to declare a mistrial, Ried, by counsel, not only did not object, but stated: "a mistrial is appropriate, but I think I have to protect the double jeopardy rights of my client." R. 694. Later, when Ried's Motion to Dismiss on the grounds of prosecutorial...