Richard Keith Lazur v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 31, 2013
• Docket: 45A04-1207-CR-358
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

KRISTIN MULHOLLAND GREGORY F. ZOELLER Appellate Public Defender Attorney General of Indiana Crown Point, Indiana BRIAN REITZ Deputy Attorney General Indianapolis, Indiana

FILED Jan 31 2013, 9:20 am

IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court

RICHARD KEITH LAZUR, ) ) Appellant-Defendant, ) ) vs. ) No. 45A04-1207-CR-358 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Thomas P. Stefaniak, Jr., Judge Cause No. 45G04-1203-FD-64

January 31, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Following a jury trial in May 2012, at which he was convicted of attempted

residential entry as a Class D felony,1 Richard Keith Lazur appeals his conviction

contending that the trial court abused its discretion by denying his motion for a mistrial

due to a violation of a pre-trial order in limine. We affirm.

Prior to the trial, the trial court granted Lazur’s motion in limine prohibiting the

introduction of evidence of other crimes or acts of misconduct by the defendant. During

the trial, the following exchange occurred as the deputy prosecutor examined the

arresting officer:

Q. Did you respond to a call around 4:20 p.m.?

A. Yes.

Q. And what was that call?

A. We got dispatched to 4338 E. 21st Avenue for a male subject stole some prescription medication from

Q. Let me stop you there.

Tr. at 70.

Following this exchange, Lazur objected, and the trial court had the jury removed

from the courtroom. Lazur then moved for a mistrial claiming prejudice due to the

damaging evidence which was placed before the jury contrary to the order in limine. The

trial court denied the request for a mistrial, but admonished the jury to disregard the issue

of the prescription drugs.

1 See Ind. Code §§ 35-43-2-1.5, 35-41-5-1. 2 On appeal, Lazur claims that he was denied a fair trial and placed in grave peril

due to the above exchange, that the exchange “let the cat out of the bag,” and that the

resulting prejudice could not be cured by a jury admonition. We disagree.

Granting a mistrial is within the sound discretion of the trial judge. Duke v. State,

249 Ind. 466, 469, 233 N.E.2d 159, 161 (1968). Absent an abuse of that discretion, a

reviewing court will not disturb a trial court's ruling. Love v. State, 267 Ind. 302, 306, 369

N.E.2d 1073, 1075 (1977). The remedy of mistrial is extreme, strong medicine that

should be prescribed only when “no other action can be expected to remedy the situation”

at the trial level. Lucio v. State, 907 N.E.2d 1008, 1010-11 (Ind. 2009). Even if evidence

of uncharged misconduct is heard by the jury, a prompt admonishment to the jury to

disregard the improper testimony is usually enough to support a denial of a motion for

mistrial. Schlomer v. State, 580 N.E.2d 950, 956 (Ind. 1991).

Indiana Evidence Rule 404(b) provides that “[e]vidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show action in

conformity therewith.” To determine if testimony of prior uncharged misconduct should

warrant a new trial, however, “the circumstances must be analyzed as to whether the

evidence was intentionally injected or came in inadvertently and as to what degree the

defendant was subjected to improper speculation by the jury.” Greenlee v. State, 655

N.E.2d 488, 490 (Ind. 1995).

Here, there was no showing that the objectionable material was intentionally

placed before the jury by the prosecution or the arresting officer or that the defendant was

subjected to improper speculation by the jury. On the date in question, the officer

3 received two calls to the vicinity. The first was in regard to a theft of prescription

medication. At no time did the officer reference Lazur in regard to that investigation,

and, indeed, the officer referenced 4338 E. 21st Avenue in regard to the theft

investigation. Lazur resided at 4328 East 21st Avenue, not 4338, and was never tied to

the 4338 address or to the alleged theft. The deputy prosecutor’s question to the arresting

officer specifically referenced the 4:20 p.m. call which was the time of the call regarding

the attempted entry. Finally, the trial court admonished the jury to ignore the challenged

testimony and to decide the residential entry case and nothing else.

The officer’s testimony regarding the earlier call was a fleeting reference that was

not tied to Lazur. No other witness made reference to the call or any alleged misconduct

on the part of Lazur, and the State did not refer to the call at any other time during trial

testimony or closing argument. The trial court did not abuse its discretion in denying the

motion for mistrial.

Affirmed.

MATHIAS, J., and CRONE, J., concur.