Ditchley v. State Of Ind.

DENNIS DITCHLEY, Appellant-Defendant,

v.STATE OF INDIANA, Appellee-Plaintiff.

No. 49A02-0911-CR-1098

No. 49G22-0809-CF-201862

Court Of Appeals Of Indiana

August 24, 2010

ATTORNEY FOR APPELLANT: DANIELLE GREGORY Marion County Public Defender Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Carol Orbison, Judge

MEMORANDUM DECISION-NOT FOR PUBLICATION

CRONE, Judge.

Case Summary

Dennis Ditchley stole credit cards from Sandra Skiles while armed with a handgun. As a result, a jury found him guilty of class A felony burglary, class B felony robbery, and class A misdemeanor carrying a handgun without a license. Ditchley challenges his convictions on several grounds; however, we affirm.¹

Issues

Ditchley raises six issues, which we restate as follows:

I. Did the trial court abuse its discretion by denying his motion for a mistrial or a new venire based on comments made during voir dire?

II. Did the trial court abuse its discretion by limiting his cross-examination of Skiles?

III. Did the trial court abuse its discretion by admitting photographs of Ditchley and of Skiles?

IV. Did the trial court abuse its discretion by admitting a statement that Ditchley made when he was arrested?

V. Was there sufficient evidence to support his conviction of carrying a handgun without a license?

VI. Did the trial court abuse its discretion by declining to clarify the robbery instruction in response to a question from the jury?

Facts and Procedural History

On August 6, 2008, Sandra Skiles was at home alone. Early in the afternoon, a man later identified as Ditchley rang the doorbell. When Skiles answered the door, Ditchley inquired about a truck sitting in her driveway that her roommate had put up for sale. Ditchley said that he was going to try to borrow some money to buy the truck, and he left.

About forty-five minutes later, Ditchley returned and said that he wanted to test drive the truck. Skiles told him that her roommate had the keys and would be home shortly. Ditchley then jerked the door out of Skiles's hand and demanded that she give him her money. Ditchley punched her in the face, and she fell to the floor. Ditchley then kicked her and aimed a gun at her.

Skiles led Ditchley to her bedroom and indicated that her money was in a drawer near the bed. Ditchley "slung [her] over on the bed and held [her] down with the gun." Tr. at 78. Ditchley removed some wallets from the drawer and then asked if she had any more money. Skiles said she did not, but Ditchley looked under her mattress. When a noise startled him, Ditchley "slung [her] up against [the] closet door and took the pistol and hit [her] in the face with it" before leaving. Id. at 79.

Skiles went next door, and her neighbor called the police. Indianapolis Metropolitan Police Officer Ryan Asher responded to the call. When he arrived, Skiles was crying and shaking. Skiles had a broken nose, and her eyes were bruised and swollen. Skiles described the attacker as "a white male, 5'10["] to six feet with a stocky build, salt and pepper-coloredhair that was combed back, with a goatee." Id. at 124. Skiles went to the police station and reviewed hundreds of photographs, but was unable to identify any of them as the perpetrator.

Skiles's credit cards were later used at a Meijer store. By reviewing the store's surveillance tapes, the police discovered that they had been used by Amber Ditchley, Ditchley's niece, and Debra Bernard. Amber admitted that Ditchley had given her some credit cards and told her that she "had a window of opportunity to use them, fast." Id. at 132. Based on this information, the police compiled an array that included a photograph of Ditchley, and Skiles identified him as the perpetrator.

Ditchley was charged with class A felony burglary, ² class B felony robbery, ³ class A misdemeanor carrying a handgun without a license.⁴ His trial began on August 31, 2009. The trial court began voir dire by asking if any of the prospective jurors knew or were related to Ditchley. One prospective juror, John Harpool, stated that he had been "locked up with [Ditchley] before." Id. at 4. The court dismissed Harpool; however, Ditchley requested a new venire because the jury pool had heard Harpool's statement. The trial court denied Ditchley's request, reasoning that he had been charged with serious crimes and the jury would likely already have assumed that he had been arrested and held in jail.

Later in voir dire, prospective juror Emory indicated that he might have difficulty being fair because of "something I heard the gentleman before said. That is something that isgoing to stick in my head. He has obviously been in trouble before and has been in custody." Id. at 45. Emory was excused for cause, and Ditchley moved for a mistrial or a new venire. The court ultimately denied the motion, but offered to let him prepare an admonition during the lunch break.

When the court went back on record, Ditchley indicated that he thought an admonition would be insufficient and asked the court to question the jurors, and the court agreed to do so. Each juror was individually brought into the court room, and the court informed each juror that the comments were not part of the evidence. Each juror was asked whether he or she could judge Ditchley solely on the evidence presented at trial, and each responded affirmatively. However, one juror indicated that he did not remember hearing the comments, and another indicated that she had already forgotten about them. Therefore, Ditchley argued that the individual questioning had actually exacerbated the problem, and he again requested a new venire and also presented the court with the admonition that he prepared. The court reviewed the tendered admonition and concluded that the issue was sufficiently addressed by the individual questioning of the jurors.

The State presented testimony from Skiles, Amber, and several officers who participated in the investigation of the case. The State also offered into evidence photographs of Skiles's injuries, the photographic array from which Skiles identified Ditchley, and a photograph of Ditchley taken after his arrest. Ditchley did not present any evidence, but through cross-examination, he suggested that Skiles may have mistaken him forhis brother-Amber's father. The jury found Ditchley guilty of robbery, burglary, and carrying a handgun without a license. Ditchley now appeals.

Discussion and Decision

I. Motion for Mistrial or New Venire

Ditchley argues that the trial court abused its discretion by denying his motions for a mistrial or new venire. A trial court's determination of whether to grant a mistrial is afforded great deference because the trial court "is in the best position to gauge the surrounding circumstances of an event and its impact on the jury." McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004), cert. denied. Therefore, the decision is reviewed solely for abuse of discretion. Id. "The denial of a motion for mistrial will be reversed only upon a showing that the defendant was placed in a position of grave peril to which he should not have been subjected." Anderson v. State, 774 N.E.2d 906, 911 (Ind. Ct. App. 2002). A mistrial "'is an extreme remedy that is only justified when other remedial measures are insufficient to rectify the situation.'" McManus, 814 N.E.2d at 260 (quotingMickens v. State, 742 N.E.2d 927, 929 (Ind. 2001)). The burden is on the defendant to show that he was placed in grave peril and that no other action could have remedied the situation. Anderson, 774 N.E.2d at 911.

Lindsey v. State established "the proper inquiry when a jury has been exposed to potentially improper and prejudicial information." Harris v. State, 824 N.E.2d 432, 439 (Ind. Ct. App. 2005) (citing Lindsey v. State, 260 Ind. 351, 295 N.E.2d 819 (1973)). That procedure is as follows:

Upon a suggestion of improper and prejudicial publicity, the trial court should make a determination as to the likelihood of resulting prejudice, both upon thebasis of the content of the publication and the likelihood of its having come to the attention of any juror. If the risk of prejudice appears substantial, as opposed to imaginary or remote only, the court should interrogate the jury collectively to determine who, if any, has been exposed. If there has been no exposure, the court should instruct upon the hazards of such exposure and the necessity for avoiding exposure to out-of-court comment concerning the case. If any of the jurors have been exposed, he must be individually interrogated by the court outside the presence of the other jurors, to determine the degree of exposure and the likely effect thereof. After each juror is so interrogated, he should be individually admonished. After all exposed jurors have been interrogated and admonished, the jury should be assembled and collectively admonished, as in the case of a finding of "no exposure."

Lindsey, 260 Ind. at 358-59, 295 N.E.2d at 824.

At Ditchley's behest, the trial court spoke to each juror individually. The court informed the jurors that the references to Ditchley being in jail were not evidence and asked each juror if he or she would be able to judge Ditchley solely on the evidence presented at trial. Each juror responded affirmatively. The court gave Ditchley the opportunity to ask additional questions, but he declined. In addition, the court gave the jury the following instruction: "It is your duty to determine the facts from the testimony and the evidence admitted by the court and given in your presence, and you should disregard any and all information that you may derive from any other source...." Appellant's App. at 149.

Harpool's statement that he knew Ditchley from being "locked up" with him did not explicitly refer to past criminal history, and the jury heard during the course of the trial that Ditchley had been...