Walker v. State
| Decision Date | 15 September 1986 |
| Docket Number | No. 785,785 |
| Citation | 497 N.E.2d 543 |
| Parties | Lawrence L. WALKER, Appellant, v. STATE of Indiana, Appellee. S 279. |
| Court | Indiana Supreme Court |
William F. Thoms, Jr., Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Cheryl L. Greiner, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Lawrence L. Walker was convicted at the conclusion of a jury trial in the Marion County Superior Court of robbery, a class A felony. He was sentenced to thirty (30) years. On direct appeal he raises the following issues:
1. overruling of Appellant's motion for a mistrial;
2. error in giving final Instruction No 3; and
3. sufficiency of the evidence.
The victim is a seventy-three (73) year old retiree. He testified that on May 4, 1984, he had been drinking, but did not feel drunk. After the victim loaned Appellant $3.00 that evening, the victim asked Appellant for a ride to the store, and Appellant acceded. Subsequently, the victim was found, severely beaten. The victim told the police Appellant beat him with a tire iron, robbed him of two-hundred dollars ($200.00) and his new shoes, and threw him out of the car. The victim was hospitalized for a week and suffered eye and ear injuries.
Appellant claims a mistrial should have been granted because State's Witness Detective Combs commented on the condition of photographs shown by him to the victim, which comment suggested to the jury that the photographs were "mug shots", allowing the jury to infer Appellant had a past criminal record. Combs was asked to identify State's Exhibits 1 through 6, which were photographs of Appellant used by the victim and another witness to identify the Appellant as the perpetrator of this crime. When asked to identify the photographs, Combs answered, His response to the Deputy Prosecutor's question of, "Can you identify them?", was:
Appellant claims any juror of average intelligence, when viewing these exhibits after hearing this witness, would know they were "mug shots", thereby prejudicing Appellant by implying to the jury that he had a criminal record. There is no testimony whatever in reference to these exhibits, by this witness or any other, that these were, in fact, "mug shots." Appellant does not claim, nor is it shown, that the appearance of the exhibits was such that one could reasonably infer they were mug shots. He refers only to the statement of Officer Combs that they had been cut.
Whether or not a mistrial should be granted is largely within the discretion of the trial court and will merit reversal only upon a showing of abuse of discretion. Ramos v. State (1982), Ind., 433 N.E.2d 757, 759, reh. denied (1982); Chambers v. State (1981), Ind., 422 N.E.2d 1198, 1204, reh. denied (1981). Declaration of a mistrial is an extreme action and is warranted only when no other action can be expected to remedy the situation. Gambill v. State (1982), Ind., 436 N.E.2d 301, 304. When the jury is admonished by the trial judge to disregard what has occurred, or if other reasonable curative measures are taken, ordinarily the court's refusal to grant a mistrial is not reversible error. Tinnin v. State (1981), 275 Ind. 203, 206, 416 N.E.2d 116, 118.
Here, Appellant did not wish the trial court to admonish the jury and, in fact, requested that he not do so, as he felt that such could draw more attention to the photographs. There is no showing here that Appellant was placed in such a position of grave peril that the judge's discretion to deny the mistrial was improper.
Preliminary Instruction 2 informed the jury of the charges against Appellant. The instruction contained the information charging Appellant with robbery while armed with a deadly weapon, and alleging the robbery resulted in bodily injury to Dallas P. Webb. Preliminary Instruction 3 defined the offense charged, including the elements contained therein as follows:
"A person who knowingly or intentionally takes property from another person or from the presence of another person by using or threatening the use of force on any person; or 2) by putting any person in fear; commits robbery, a class C felony. However, the offense is a class B felony if it is committed while armed with a deadly weapon, and a class A felony if it results in either bodily injury or serious bodily injury to any person other than a defendant.' "
In succeeding instructions, the trial court then defined terms used in Instructions 2 and 3. Instruction 11 defined "knowingly"; Instruction 12 defined "deadly weapon"; Instruction 13 defined "serious bodily injury"; and Instruction 14 defined "bodily injury."
Appellant now claims he was prejudiced by the court instructing the jury on serious bodily injury...
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