Woods v. State

• Decision Date: 23 October 1985
• Docket Number: No. 485S153,485S153
• Citation: 484 N.E.2d 3
• Parties: Archie B. WOODS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 3

484 N.E.2d 3

Archie B. WOODS, Appellant, v. STATE of Indiana, Appellee.

No. 485S153.

Supreme Court of Indiana.

Oct. 23, 1985.

Patrick M. Schrems, Monroe County Deputy Public Defender, Bloomington, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

In a trial by jury appellant was found guilty of Rape and Criminal Deviate Conduct, both Class A felonies. He was sentenced by the court to concurrent forty (40) year terms of imprisonment.

The record reveals that sometime between noon and 2:00 p.m. on August 27, 1983, R.E. entered the laundry room of her apartment complex in Bloomington, Indiana. Appellant, the only other person present in the room, briefly engaged her in conversation. While R.E. was attending to her laundry, appellant approached her from behind and put a knife to her neck.

Continuing to hold the knife to R.E.'s neck, appellant forced her into an adjoining bathroom and locked the door. Appellant first compelled R.E. to perform fellatio, then raped her. Before leaving, he threatened to kill R.E. if she told anyone of the attack.

Shortly thereafter R.E. gave a description of her assailant to Detective Barbara Webb of the Bloomington Police Department. Approximately ten days later R.E. identified appellant from a photographic array. As a result of R.E.'s identification, an arrest warrant was issued for appellant. When police went to appellant's place of employment to serve the warrant, appellant fled. He turned himself in several hours later at the Monroe County Jail.

Appellant's first trial ended in a mistrial. On direct examination, Detective Webb testified that appellant's picture, which was included in the photographic array shown to R.E., had been taken from her "sex crimes file." Appellant immediately moved for a mistrial. Prior to commencement of the second trial, appellant moved, pursuant to Ind.Code Sec. 35-41-4-3(b), to dismiss the charges, contending that any subsequent prosecution was barred due to the alleged intent of the prosecutor to cause the mistrial. The court denied the motion.

Appellant argues the trial court erred in denying his motion to dismiss. He contends the second trial was barred under the Double Jeopardy Clause because the prosecutor had provoked him into requesting a mistrial.

Appellant's double jeopardy argument is unavailing. A motion by a defendant for a mistrial is ordinarily assumed to remove any barrier to reprosecution. United States v. Dinitz (1976), 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267; Cabell v. State (1978), 267 Ind. 664, 372 N.E.2d 1176. "Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Oregon v. Kennedy (1982), 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416, 425. Thus the key inquiry is whether the prosecutorial conduct giving rise to the defendant's motion was intended to provoke the defendant into moving for a mistrial. Id. at 679, 102 S.Ct. at 2091, 72 L.Ed.2d at 427.

After a hearing on appellant's motion to dismiss, the court made the following finding:

"[T]he Court is nonetheless convinced that the State did at that time believe that the question and the response sought thereto which resulted in the mistrial were within the context of proper rebuttal evidence and that the State at the time maintained, the Court believes, in full belief of the propriety of its argument, that that evidence was properly admissible and that no error had been committed by it."

We agree with the trial court that the circumstances surrounding the aborted trial do not evidence an intent by the prosecutor to provoke appellant into moving for a mistrial. The prosecutor argued strenuously in opposition to the motion. The record supports the court's finding that the prosecutor believed the questioning of Detective Webb was proper in light of questions raised by the opening statement of appellant's counsel. There was no error in the denial of appellant's motion to dismiss.

Appellant contends the trial court erred in denying him a new trial on the basis of newly discovered evidence.

In his motion to correct error, appellant alleged that the discovery by doctors at the Indiana Reformatory that he was not circumcised constituted material evidence entitling him to a new trial. That allegation centered on a statement given by R.E. to Detective Webb that her assailant was circumcised. The trial court found that appellant had failed to use due diligence to discover the evidence, that the evidence would serve merely to impeach the testimony of the victim, and that the evidence would not produce a different result upon a retrial.

To gain a new trial based on newly discovered evidence, a defendant must show:

" '(1) [T]hat the evidence has been discovered since the trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that the evidence is worthy of credit; (8) that it can be produced on a retrial of the case; and (9) that it will probably produce a different result.' Tungate v. State (1958), 238 Ind. 48, 54-55, 147 N.E.2d 232, 235-36." Wiles v. State (1982), Ind., 437 N.E.2d 35, 39.

The trial court properly denied appellant's request for a new trial. Upon questioning by his attorney, appellant, apparently lacking understanding of the term, responded that he had been circumcised. There was sufficient time prior to trial to ascertain the truth of appellant's mistaken belief. The question of whether appellant was circumcised was not raised at trial; therefore, the evidence would at best serve to impeach the credibility of R.E. The evidence presented by appellant is clearly not sufficient to raise a strong presumption that, in all probability, it would produce a different result upon a retrial. Augustine v. State (1984), Ind., 461 N.E.2d 101; Wiles, supra.

Appellant argues the trial court erred in refusing to reread to the jury a portion of Preliminary Instruction No. 4 as a final instruction. He contends the judge was compelled by Ind.R.Tr.P. 51(...