White v. State

• Decision Date: 05 March 1984
• Docket Number: No. 182,182
• Citation: 460 N.E.2d 132
• Parties: Walter Raymond WHITE, Appellant, v. STATE of Indiana, Appellee. S 16.
• Court: Indiana Supreme Court

Page 132

460 N.E.2d 132

Walter Raymond WHITE, Appellant, v. STATE of Indiana, Appellee.

No. 182 S 16.

Supreme Court of Indiana.

March 5, 1984.

Frank E. Spencer, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Walter Raymond White was found guilty by a jury in the Marion Superior Court of two counts of murder. He subsequently was sentenced by the trial judge to forty years imprisonment for each conviction, said sentences to be served consecutively. Appellant now directly appeals. All but one of Appellant's issues regard the fact that Appellant was tried and convicted after a mistrial was declared in Appellant's first trial. Appellant specifically contends that the trial court erred by granting said mistrial, by denying Appellant's Motion to Dismiss and Discharge, by denying Appellant's Motion for Separate Trial and by not allowing Appellant to present his double jeopardy question to the jury during his second trial. Appellant also raises an alleged error in his sentencing by the trial judge.

Count I charged Appellant with the murder of Connie Sue Many. Count II charged him with the murder of Lazalia Stack. Both murders occurred on the 29th of December, 1977, following a gathering at which Appellant, the two victims and other persons were socializing and drinking. An argument ensued and Appellant left returning with his shotgun. During the confrontation that followed, he shot the two victims with his shotgun. Appellant does not deny that he shot the two victims and does not question the sufficiency of the evidence by which he was convicted of the two murder counts.

The incident that led to the granting of a mistrial in Appellant's first trial transpired during the third day of that trial. On March 12, 1979, after the jury had been selected and sworn, the State began its presentation of evidence. On March 13, 1979, Dr. Josephino Aguilar was called as a witness for the State. Dr. Aguilar, a Deputy Coroner for Marion County, had performed autopsies on the bodies of the two victims. Difficulty arose when Dr. Aguilar refused to answer certain questions posed by the State, the defense and the trial court. He testified about the autopsies of the victims and gave descriptions of the wounds he found. He further testified that he found metal pellets in their bodies. He refused, however, to give an expert opinion about the cause of the victims' deaths and likewise refused to give other medical opinions requested of him. Dr. Aguilar explained that he was at trial only as a pathologist and not as a forensic pathologist. He also complained of not being accorded certain courtesies to which he thought himself entitled. Dr. Aguilar again was called to testify on the following day and he again refused to answer questions concerning his opinion about what caused the death of the victims in this case. Dr. Aguilar again stated that he was not there as an expert witness and was not a forensic pathologist. After several attempts at having Dr. Aguilar answer the questions, the trial judge found Dr. Aguilar to be in direct contempt. The following subsequently ensued:

"Court: This is in the record?

Reporter Hatfield: Yes, sir.

Court: If there is to be any appeal or contesting of the Court's decision, the Court has a right to direct the trial of a case. This i[s] a very serious multiple murder proceeding, and, we have been in trial here, we're going into the third day, and, we're not going to permit the ends of justice to be frustrated by Dr. Aguilar, who apparently feels that every time he opens his mouth he's supposed to be paid for it. Now, I understand that the Coroner has a contract with Wishard Hospital whereby the Coroner pays them $80,000.00 to perform autopsies, and, in return they are to provide doctors, and, expert testimony, isn't that right, Miss Ressler?

Ms. Ressler [Deputy Prosecutor]: Yes, Judge.

Court: And, he is a Deputy Coroner?

Ms. Ressler: Yes.

Court: He has a duty to the public, just like we have a duty.

Ms. Ressler: Absolutely.

Court: So, this is in the record, he refused four times yesterday, to testify. It's the first time in my twenty years experience, I've ever heard a doctor refuse to testify, and, there comes a point in proceedings where you've got to draw the line where the Court has to do what is in the best interest of the public. You can't allow a trial of this serious nature become (sic) a circus, just because someone decides that they might or might not testify. As a result of this development in this case, because of the adverse effect it obviously would have on the Jury, and, the fact that it would deprive the State of an important witness, and, reflect on his credibility, t[he] Court at this time is going to declare a mistrial in the case, set the submission of the cause aside, and discharge the Jury, because I don't think that we can proceed fairly, further in the matter. I don't think that I have any choice. I have never, in a murder case, ever had anything, like this to happen, and, for both sides to receive a fair trial, we cannot allow collateral disruptive influences to color the testimony that we've heard. I don't see any alternative and, that's what I'm going to do at this time so, we'll show that there has been a mistrial declared on the basis of Dr. Aguilar's performance, and, refusal to testify, and, submission of the cause is set aside, and the Jury is discharged. We will reset this case for trial, in the immediate future, at such time as Counsel for the State and, the Defendant can confer on it, and start over again; I don't see any alternative.

Mr. Hollingsworth: [Appellant's trial counsel] Well, for purposes of the record, we don't concur in it, in--.

Court: Well, I'm not asking either one of you whether you concur or not, that's--so, you can take the Jury out. Again, I want to thank you for your service; I'm sorry this terminated this way, but, I just don't think the Court can tolerate a witness who refuses to testify under Court order, particularly a doctor who is a professional man, and, licensed to practice medicine. I don't think I had any alternative, because it reflects adversely on the credibility involving the State's witness, and, I would do the same think if it were to happen as far as the Defense is concerned. It's the first time in twenty years I've ever been confronted with anything like this. I have had Dr. Aguilar testify in other cases in this Court isn't that correct?

Reporter Hatfield: Yes, sir.

Court: Many of them, and, given his expert opinion, and, yesterday when he refused to testify, I was quite shocked, by the fact that he refused to testify, couldn't believe it, so, I think this is the only remedy, is to find him Guilty of Direct Contempt, levy a fine, and, proceed according to Statute so, again, I'm sorry. We'll try again next time."

It is well-established that it is within the sound discretion of the trial court to determine if a legal necessity exists for the discharge of a jury. The United States Supreme Court has held:

"We think, ..., the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is manifest necessity for the act, or the ends of public justice would otherwise be defeated."

Wade v. Hunter, (1949) 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (quoting United States v. Perez, (1824) 9 Wheat. 579, 6 L.Ed. 165). The Supreme Court also has indicated that the double jeopardy rule need not be mechanically applied and that the balancing of the defendant's and the public's interest is within the discretion of the trial court. United States v. Jorn, (1971) 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543. Moreover, the Supreme Court has held that the defendant need not agree to the withdrawal of a case already submitted to the jury in order to raise a double jeopardy question if the record discloses that there was a manifest necessity for the withdrawal and the trial court acted reasonably within its discretion to make that...