Wilson v. State

• Decision Date: 17 July 1998
• Docket Number: No. 10S00-9606-CR-432,10S00-9606-CR-432
• Citation: 697 N.E.2d 466
• Parties: Donald Stewart WILSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 466

697 N.E.2d 466

Donald Stewart WILSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 10S00-9606-CR-432.

Supreme Court of Indiana.

July 17, 1998.

Vicki L. Carmichael, Jefferson, for appellant.

Jeffrey A. Modisett, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant Donald Stewart Wilson seeks reversal of his convictions on one count of murder, Ind.Code § 35-42-1-1, and two counts of attempted murder, Ind.Code §§ 35-42-1-1 and 35-41-5-1. ¹

Wilson claims that double jeopardy barred his retrial, that the court wrongly refused various instructions on lesser included offenses, and that it erroneously gave an instruction referring to the jury as the "moral conscience of our society." We affirm.

Statement of Facts

Shortly after midnight on the morning of May 27, 1994, Wilson drove to the Keg Liquor Lounge in Clarksville. His wife, Judith Bowles Wilson (Judy), from whom a divorce was pending, was employed at the Keg and working that night. (R. at 15.) Wilson was aware his wife was seeing someone. (R. at 1467.) While standing outside the Keg, Wilson engaged in a brief conversation with Charles Wise, an employee at the liquor store next to the Keg. Wise recalled Wilson saying, "looks like lover is here tonight." (R. at 1103, 1113.) Wise testified that he knew Wilson was referring to Antonio Rodriguez, Judy's boyfriend, and that Rodriguez was inside the bar. (R. at 1113-14.)

Following that conversation, Wilson walked into the Keg carrying a Ruger .357 Magnum handgun. Wilson observed his estranged wife speaking to Rodriguez, and twice demanded to see her outside. (R. at 1194.) After seeing Rodriguez make some sudden movements, (R. at 1685), Wilson shot at Rodriguez at least once, striking him in the left forearm. (R. at 15, 1196.) As Rodriguez fell to the ground and crawled behind the bar, Judy, who was already behind the bar, ran towards the kitchen. (R. at 15, 1199.) Wilson then turned and fired two shots in Judy's direction. (Id.)

Another patron who was in the bar at the time, Jack Bierly, later told police he believed Wilson actually fired two shots at Rodriguez. (R. at 15.) Bierly also observed Wilson raise and aim his gun in the direction of Judy. (R. at 1235.) At that point, Bierly got up and ran out the front door of the bar. He heard more shots fired inside the bar as he ran. (R. at 1236.) Wilson followed Bierly outside. (Id.) Bierly heard Wilson yelling at him to stop running. (Id.) Bierly testified that he then turned and saw Wilson pointing the .357 Magnum at him. (Id.) Bierly drew his own revolver and shot at Wilson five times. (Id.) Wilson fired twice in the direction of Bierly, though Wilson contends that the discharges were accidental. (R. at 15; Appellant's Br. at 27.) Bierly was not hit by these shots. Wilson sustained multiple gunshot wounds from Bierly's shots before he fled to the car he had driven, parked in an adjacent lot. (R. at 15.)

Police found Wilson collapsed next to a car in a lot adjoining the Keg. (R. at 14.) He had been shot in the stomach, chest, and right pinky finger. (R. at 1042-1043, 1038.) Inside the lounge, they found Judy Bowles Wilson dead from a gunshot wound to the head. (R. at 15.) A bullet had entered her left temple and exited the back of her skull. (R. at 1064.) Police also found the injured Rodriguez. (R. at 14.)

The police searched the car next to which Wilson had been found. (R. at 916.) The car belonged to an employee of the company where Wilson was a manager. (R. at 910.) Inside the car, they found one of Wilson's business cards. (R. at 930.) They also found a box of .357 caliber ammunition, (R. at 925), a shotgun, (R. at 922), and a box of shotgun shells, (id.). None of these items belonged to the owner of the car, nor had he given permission for Wilson to borrow the car or put the guns and ammunition in it. (R. at 911-13.)

Wilson was transported from the scene to the hospital and remained there for surgery and follow-up care. On June 3, police arrested Wilson and charged him with the murder of Judy Bowles Wilson, the attempted murder of Rodriguez and Bierly, and carrying a handgun without a license. (R. at 12-13.)

I. Wilson's Double Jeopardy Claim

Wilson claims he was subjected to double jeopardy when he was retried following a mistrial. Because the motion for mistrial was necessitated by "prosecutorial misconduct," Wilson says, his retrial should have been barred.

A. Events Surrounding Wilson's Mistrial

Before the first trial, the defense moved to suppress all the statements Wilson made on the night of the shooting, including those to investigating detectives in the ambulance and at the hospital. (R. at 43.) This effort was unsuccessful in either trial.

During the course of the first trial, the State questioned Detective Carl Durbin. En route to the hospital, Wilson told Durbin that while he was in the parking lot of the Keg, another male had approached him and shot him. (R. at 323.) The direct examination reads as follows:

A: I asked Mr. Wilson I'd like to talk to him and went ahead and Mirandized him. He did agree that he would talk back to me.

Q: So he could communicate with you, correct?

A: Yes, he could.

Q: And during the course of his, the trip between the scene that he was located and the hospital, did you have the opportunity to discuss this case with Mr. Wilson?

A: Yes, I did.

Q: What did he advise you?

A: Well, in route to Humana Hospital, U of L Hospital, after I Mirandized him, I asked Mr. Wilson what had happened at the Keg Liquors. He said that he had, he was approached by an unknown male outside of the parking lot at the Keg where he had been shot. The subject stated, Mr. Wilson stated that he did not know the person who had shot him. After that statement, I asked him had there been an argument prior to this, you know, prior to him being shot. He refused to--

[Defense Counsel]: Objection. Could we approach?

(R. at 693-94.)

Wilson objected to Detective Durbin's testimony and subsequently moved for a mistrial. He contended that Durbin's statement "he refused--" violated the holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), that post-Miranda silence may not be used against a defendant. After hearing arguments, the trial court overruled the objection and denied the motion for mistrial. (R. at 713.) The court did, however, tell the prosecutor not to make any further references to Wilson's assertion of Miranda rights.

After a brief recess and another witness, the State called Detective Edward McCutcheon to the stand. (R. at 741.) While at the hospital, Wilson told McCutcheon that he had gone to a bar and been ambushed by a stranger. (R. at 350.) The relevant portion of that testimony reads as follows:

Q: Did you at anytime during your investigation meet with a person identified as Donald Wilson?

A: Yes.

Q: When was that?

A: At the University Hospital.

....

Q: During the course of this meeting, what did you personally do?

A: I went to the University Hospital in order to get a statement from Mr. Wilson. I went to Mr. Wilson's room at the University Hospital, and there was a guard posted at his door. I identified myself to the guard at the door, explained to him why I was there, and then went, proceeded into the room to talk to Mr. Wilson.

Q: When you went into the room, describe to the Jury how Mr. Wilson physically appeared.

A: He was sitting in a chair next to his bed reading a book.

Q: What day was this?

A: I don't recall. Several days after the incident.

Q: Okay. Did you then have the opportunity to converse with Mr. Wilson in any way?

A: Yes, I identified myself to him, explained why I was there, and that I would like to take a statement from him, and as I was doing that, he was talking to me. He was asking me who had shot him and if that person was in jail. At that time, I told him that before I could talk to him, I needed him to sign a rights waiver, and I proceeded to get that out of the file, and he continued to talk, and I handed him the rights waiver and asked him to sign it, and at that time, he said that he needed to talk to an attorney, he thought it would be best if he talked to an attorney.

(R. at 788-90.)

Wilson objected, and after the court heard further testimony outside the presence of the jury to clarify Detective McCutcheon's statements, Wilson moved for a mistrial on Doyle grounds, that the State may not comment on a defendant's exercise of his right to remain silent. ² (R. at 791, 793-94.) The court granted Wilson's motion for mistrial and set the cause for retrial. (R. at 795-99.)

Wilson filed a motion to dismiss, claiming double jeopardy. Wilson argued at a hearing, as he argues now, that his retrial should have been barred because his motion for mistrial was necessitated by prosecutorial error and/or misconduct, which was inspired by the State's desire to retry the case and improve its chances of winning. (R. at 143-51, 806-27.) The prosecutor vigorously denied any intent to create a mistrial through his interrogation of Detective McCutcheon:

I was nine witnesses into my case after I got off this Police Officer, McCutcheon, who this Court has heard testify on numerous occasions. This man was about to throw up on direct. He couldn't even identify pictures of the scene when I was asking him that. This man is scared to death when he testifies. He's a good Officer. I did not in any way attempt, nor would I have any reason to try to seek a mistrial. The day that I can't look the Court in the eye or the Jury in the eye, I have the ability to dismiss the case. I've tried over 300 cases in my career. I have never deliberately tried to mistrial a case.

(R. at 811-13.)

At the close of the hearing, Judge Donahue indicated he did not find any deliberate prosecutorial misconduct, stating:

I don't believe from my standpoint as the 13th Juror listening to...