Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be May 20 2014, 8:31 am 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.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RUTH JOHNSON GREGORY F. ZOELLER PATRICIA CARESS MCMATH Attorney General of Indiana Marion County Public Defender Agency Indianapolis, Indiana
RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
ROBERT BEELER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1310-CR-845 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark D. Stoner, Judge Cause No. 49G06-1305-FA-32399
May 20, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge Robert Beeler was convicted after a jury trial of attempted murder,1 a Class A felony
and was sentenced to forty-five years executed. He appeals, raising the following restated
issues for our review:
I. Whether the trial court abused its discretion when it denied Beeler’s motion for mistrial after removing a juror; and
II. Whether the trial court abused its discretion when it refused Beeler’s tendered jury instruction.
We affirm.
FACTS AND PROCEDURAL HISTORY2
In the evening on May 14, 2013, Andrew Carson, Terron Gary, and Darnell Frierson
were walking on Drexler Avenue in Indianapolis, Indiana. The three walked in front of a
house where a person they knew as “Peanut” lived. (A/V Rec.; 08/12/13 at 2:00:26). All
three men were walking in the middle of the street. Frierson was on the side of the street
farthest from Peanut’s house, Gary was in the middle of the group, and Carson was on the
side closest to Peanut’s house.
As the men approached Peanut’s house, they recognized people inside of the house.
They also observed Beeler watching them from around the back corner of the house. The
three men had experienced previous problems with Beeler and had faced “retaliation from
1 See Ind. Code §§ 35-41-5-1, 35-42-1-1. 2 The record on appeal in this case was prepared pursuant to the Indiana Supreme Court’s “Order Establishing the Indiana Court Reporting Pilot Project for Exploring the Use of an Audio/Visual Record on Appeal[,]” issued on September 18, 2012, and effective on July 1, 2012. See In Re Pilot Project For Audio/Visual Recordings In Lieu of Paper Transcripts In the Preparation of the Record and Briefing on Appeal, 976 N.E.2d 1218 (Ind. 2012). We are grateful for the ongoing cooperation of the Honorable Mark D. Stoner of Marion Superior Court, the Marion County Public Defender Agency, and the Office of the Indiana Attorney General in the execution of this pilot project.
2 him in the past.” (A/V Rec.; 08/12/13 at 1:54:11). Beeler stepped out from behind the
house, raised his arm while holding a gun, and said, “Y’all bitch ass niggas want to play?”
(A/V/ Rec.; 08/12/13 at 2:04:23, 2:35:13). Beeler then began firing the gun at the men.
Carson saw Beeler fire the first shot, and then the three men ran away. Carson believed
that Beeler fired at least eight shots. Gary and another witness thought that Beeler fired
fifteen shots. Beeler pursued the men while shooting. Beeler fired the gun while he was
fifteen to twenty feet from the men. After fleeing from Beeler, Carson and Gary realized
that Frierson was not with them and went to Frierson’s house. They later found out that
Frierson had been shot once in the head and once in the arm and had been taken to the
hospital.
On May 20, 2013, the State charged Beeler with Count I attempted murder, a Class
A felony, and Count II unlawful possession of a firearm by a serious violent felon, a Class
B felony. The State also alleged a sentencing enhancement for the use of a firearm. On
July 16, 2013, the State filed an information alleging that Beeler was an habitual offender.
Beeler’s jury trial began on August 12, 2013. The trial court partially bifurcated the trial
for Count II.
On August 13, 2013, the second day of trial, the trial court assembled the parties
and informed them outside the presence of the jury that a juror had notified the court that
the juror’s sister had friends who associated with the victim, Frierson, and that a friend of
the juror’s sister had been in the courtroom. The trial court interviewed the juror in the
presence of the parties and again out of the presence of the other jurors. The juror told the
court that she recognized Frierson and Gary, but did not know them personally, and that
3 she had grown up in the neighborhood where the crime occurred. (A/V Rec.; 08/13/13 at
09:26:19, 09:28:45). She had informed the other jurors that she had previously lived in the
neighborhood and that some of the faces of the witnesses who testified looked familiar.
(A/V Rec.; 08/13/13 at 09:29:50-:58). She asked the other jurors if it was a problem, and
they opined it would not be if she did not know Frierson personally. (A/V Rec.; 08/13/13
at 09:30:00-:04). The juror testified that she did not express any judgment to the other
jurors about Frierson and did not give them any details about the neighborhood. (A/V Rec.;
08/13/13 at 09:31:52, 09:32:10-14). The juror stated that she “felt uncomfortable” and
thought it would be best not to be in the situation of being on the jury. (A/V Rec.; 08/13/13
at 09:28:16, 09:28:41).
Both the State and the defense asked that the juror be removed, which the trial court
granted. The defense requested a mistrial, but in response to the trial court’s questioning,
could not cite to anything the juror had reported that would have given a negative
impression to the other jury members. (A/V Rec.; 08/13/13 at 09:37:25). The trial court
concluded that the juror had not reported that she had said anything to the other jurors that
conveyed prejudicial information or that she herself could not be impartial. (A/V Rec.;
08/13/13 at 09:38:38). The trial court removed the juror and denied Beeler’s motion for
mistrial. The trial court replaced the excused juror with the alternate and informed the jury
that it had excused the juror. The trial court admonished the jury that it should not speculate
as to why the juror had been excused or in any way allow the removal to influence its
decision. (A/V Rec.; 08/13/13 at 09:46:42-:50).
4 Beeler submitted his proposed final jury instructions 1-3. For proposed final jury
instruction 2, Beeler withdrew the part that included aggravated battery as a lesser-included
offense of attempted murder, but maintained that the jury should be instructed as to the
remaining part that included criminal recklessness as a lesser-included offense. (A/V Rec.;
08/13/13 at 12:01:05). The trial court denied this instruction, reasoning that the State had
charged Beeler as having acted with the intent to commit murder and no serious evidentiary
dispute regarding Beeler’s intent existed. (A/V Rec.; 08/13/13 at 12:02:58-:03:32).
At the conclusion of the trial, the jury found Beeler guilty as charged. The State
dismissed Count II, Class B felony unlawful possession of a firearm by a serious violent
felon. Beeler waived jury trial for his habitual offender enhancement. The trial court
conducted a trial on the enhancement and found Beeler was not an habitual offender. The
trial court sentenced Beeler to forty-five years executed for his attempted murder
conviction. Beeler now appeals.
DISCUSSION AND DECISION
I. Motion for Mistrial
Beeler contends that the trial court abused its discretion when it denied his motion
for a mistrial after a juror was excused. The decision to grant or deny a motion for mistrial
lies within the discretion of the trial court. Barnett v. State, 916 N.E.2d 280, 284 (Ind. Ct.
App. 2009) (citing Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001)), trans. denied. The
grant of a motion for mistrial is an extreme remedy that is warranted only when less severe
remedies will not satisfactorily correct the error. Id. “‘On appeal, the trial judge’s
discretion in determining whether to grant a mistrial is afforded great deference because
5 the judge is in the best position to gauge the surrounding circumstances of an event and its
impact on the jury.’” Id. (citing McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004), cert.
denied, 546 U.S. 831 (2005)). To succeed on appeal from the denial of a mistrial, a
defendant must demonstrate that the conduct complained of was both error and had a
probable persuasive effect on the jury’s decision. Id. (citing Booher v. State, 773 N.E.2d
814, 820 (Ind. 2002)).
Although Beeler frames this issue as whether the trial court abused its discretion
when it denied his motion for mistrial, his argument is directed at the trial court’s failure
to inquire as to the effect on the other jurors that the removal of the juror or her disclosure
would have on the jury. He asserts that the trial court erred because it did not interrogate
the jury regarding the risk of exposure to a substantial threat of prejudice due to the excused
juror’s statements to the jury. He alleges that the statements made by the juror to the other
members of the jury may have tainted the jury, but we are left to speculate as to whether
the jury was exposed to possible prejudicial information because they were not questioned.
“When an event which may improperly influence the jury occurs, the trial court
should make a determination as to the likelihood of resulting prejudice, both upon the basis
of the content of the event and the likelihood of its having come to the attention of any
juror.” Barnett, 916 N.E.2d at 284 (citing Lindsey v. State, 260 Ind. 351, 358, 295 N.E.2d
819, 824 (1973)). “However, the trial court is obligated to take the remedial action of
interrogating the jury only if the court determines, in its discretion, that ‘the risk of
prejudice appears substantial, as opposed to imaginary or remote only.’” Agnew v. State,
677 N.E.2d 582, 584 (Ind. Ct. App. 1997) (quoting Lindsey, 260 Ind. at 358, 295 N.E.2d
6 at 824), trans. denied. Therefore, if the court determines that exposure to claimed
prejudicial information does not raise a substantial risk of prejudice, it has no responsibility
to interrogate the jurors or to take further remedial action. Barnett, 916 N.E.2d at 284.
In the present case, before Beeler’s counsel requested a mistrial, the trial court and
the parties spoke with the juror, and she told the trial court that she recognized Frierson
and Gary, but did not personally know them, and that she had previously lived in the
neighborhood where the crime occurred. (A/V Rec.; 08/13/13 at 09:26:19, 09:28:45). She
testified that she had informed the other jurors that she had grown up in the neighborhood
and that some of the faces of the witness who testified looked familiar, but she stated that
she did not express any judgment to the other jurors about the witnesses and did not give
them any details about the neighborhood. (A/V Rec.; 08/13/13 at 09:29:50-:58, 09:31:52,
09:32:10-14). The juror stated that she “felt uncomfortable” and thought it would be best
not to be in the situation of being on the jury. (A/V Rec.; 08/13/13 at 09:28:16, 09:28:41).
After the trial court removed the juror, Beeler’s counsel requested a mistrial. The trial
court denied the motion, concluding that the juror had not testified that she had said
anything to the other jurors that conveyed prejudicial information or that she herself could
not be impartial. (A/V Rec.; 08/13/13 at 09:38:38).
Because the juror had stated that she had not expressed any judgment to the other
members of the jury or given any details about her knowledge of the neighborhood and
witnesses, and the trial court determined that there was no risk of prejudice, the court had
no responsibility to interrogate the jurors or to take any other remedial action. See Barnett,
916 N.E.2d at 285; Agnew, 677 N.E.2d at 584. However, the trial court did give the jury
7 an admonishment that it should not speculate as to why the juror had been excused or in
any way allow the removal to influence its decision. (A/V Rec.; 08/13/13 at 09:46:42-:50).
Beeler has not demonstrated that the conduct complained of was error or had a probable
persuasive effect on the jury’s decision. Under the circumstances and in light of the fact
that a trial court was in the best position to gauge the surrounding circumstances of an event
and its impact on the jury, we cannot say that the trial court abused its discretion by denying
Barnett’s motion for a mistrial. See Barnett, 677 N.E.2d at 285.
Beeler relies on Threats v. State, 582 N.E.2d 396 (Ind. Ct. App. 1991), trans. denied,
for his contention. In Threats, during jury selection, it was discovered that a member of
the venire had known the defendant years before. Id. at 398. Nevertheless, the juror was
not struck from the jury and eventually became its foreman. Id. Then, two hours into the
jury’s deliberation, the juror revealed to the other jurors that he knew the defendant’s wife.
Id. One of them called this to the attention of the bailiff, who informed the judge. Id. The
trial court replaced the juror with an alternate juror. Id. The defendant moved for a mistrial,
which the trial court denied. Id. On appeal, the defendant argued that the trial court erred
by not admonishing the jury regarding the juror’s removal. Id. A panel of this court held:
A vital part of the system is the trial judge’s expression to the jurors of the gravity of their duty, pursuant to which jurors invest their time and integrity in performing their task. It would be therefore no great leap of imagination to suppose that one juror might resent another who had behaved inappropriately. Specifically, a juror in Threats’[s] trial could have resented [the juror’s] conduct. It follows, that it would be unsurprising to learn that [the juror’s] silence and eventual removal generated prejudice for or against Threats, as equally as it would be no surprise to learn that the jurors remained impartial. We cannot say the threat of contamination was “substantial”; on the other hand, we cannot say it was “imaginary or remote.” We do see, however, a “clear potential” for a tainted verdict. The deciding point is that
8 [the juror’s] conduct reasonably might have engendered prejudice among the jurors, yet the trial judge took no action to ascertain that, despite his perception that what had transpired “seem[ed] to be a stumbling block in the jury room” and “[jurors] reported to the bailiff that they felt [the juror] had an interest in the case.”
Id. at 401 (internal citations omitted). This court concluded that in the absence of remedial
action by the trial court, “we cannot be certain that the verdict was free of improper
influences.” Id. We find Threats distinguishable from the present case. Here, unlike in
Threats, there was no indication that the juror knew Beeler, Frierson, or any of the
witnesses personally or that the juror’s conduct might have engendered prejudice among
the jurors. Her statements to the trial court were insufficient to show the potential for
prejudice presented in Threats. Further, here, the trial court gave an admonishment to the
jury that it should not speculate as to why the juror had been excused or in any way allow
the removal to influence its decision. We, therefore, conclude that the trial court was not
required to interrogate the jury as to the effect on the other jurors that the removal of the
juror or her disclosure would have on the jury, and the trial court did not abuse its discretion
in denying Beeler’s motion for mistrial.
II. Jury Instruction
Beeler argues that the trial court abused its discretion when it refused to give his
tendered final jury instruction on the lesser-included offense of criminal recklessness.
Instruction of the jury is left to the sound discretion of the trial court. Ledesma v. State,
761 N.E.2d 896, 898 (Ind. Ct. App. 2002). Our review of a trial court’s decision is highly
deferential, and we will not disturb the court’s ruling absent an abuse of discretion. Id.
9 When a defendant requests a lesser-included offense instruction, the trial court must
apply a three-part analysis set out in Wright v. State, 658 N.E.2d 563 (Ind. 1995). First,
the trial court must determine if the alleged lesser-included offense is inherently included
in the charged offense. Wright, 658 N.E.2d at 566. If the court determines that the offense
is not inherently included, the trial court proceeds to step two and decides whether the
alleged lesser-included offense is factually included in the crime charged. Id. at 567.
However, if the alleged lesser-included offense is neither inherently nor factually included
in the crime charged, a requested instruction on the alleged lesser-included offense should
not be given and the trial court need not proceed to step three. Id. If a trial court has
determined that an alleged lesser-included offense is either inherently or factually included
in the crime charged, it must look at the evidence presented in the case by both parties. Id.
If there is a serious evidentiary dispute about the element or elements distinguishing the
greater from the lesser offense, and if, in view of this dispute, a jury could conclude that
the lesser offense was committed but not the greater, then it is reversible error for a trial
court not to give an instruction, when requested, on the inherently or factually included
lesser offense. Id. (citing Aschliman v. State, 589 N.E.2d 1160, 1162 (Ind. 1992); Lynch v.
State, 571 N.E.2d 537, 539 (Ind. 1991)). If the evidence does not so support the giving of
a requested instruction on an inherently or factually included lesser offense, then a trial
court should not give the requested instruction. Id.
First, it is well-established in Indiana that criminal recklessness is not an inherently
included offense of attempted murder. White v. State, 849 N.E.2d 735, 739 (Ind. Ct. App.
2006) (citing Ellis v. State, 736 N.E.2d 731, 734 (Ind. 2000)), trans. denied. However,
10 whether an offense is a factually lesser-included offense of another offense requires a case-
by-case determination. The trial court must compare the statute defining the alleged lesser-
included offense with the charging instrument in the case. Id. (citing Wright, 658 N.E.2d
at 567). If the charging instrument alleges that the means used to commit the crime charged
include all of the elements of the alleged lesser-included offense, then the alleged lesser-
included offense is factually included in the crime charged. Id.
Here, the charging information for attempted murder against Beeler stated in
relevant part:
Robert Beeler, on or about May 14, 2013, did attempt to commit the crime of Murder, which is to intentionally kill another human being, namely: Darnell Frierson, by engaging in conduct, that is: shooting a deadly weapon that is: a gun, at or against the person of Darnell Frierson, with the specific intent to kill Darnell Frierson, which conduct constituted a substantial step toward commission of said crime of Murder.
Appellant’s App. at 21 (emphasis added). The State charged Beeler with intentional
conduct and not any act of reckless conduct, and the charging information included no
element of reckless behavior. We therefore conclude that criminal recklessness was not
factually included in the attempted murder charge in the present case. Because criminal
recklessness was neither an inherently nor a factually included offense of attempted
murder, the trial court properly denied Beeler’s tendered lesser-included criminal
recklessness instruction.
Additionally, even if Beeler were able to show that criminal recklessness was a
factually included offense, no serious evidentiary dispute existed. Carson, Gary, and
Frierson, the victim, had previous problems with Beeler. The three men were merely
11 walking in the middle of the street when Beeler stepped out, raised his arm holding the
gun, and said, “Y’all bitch ass niggas want to play?” (A/V/ Rec.; 08/12/13 at 2:04:23,
2:35:13). Beeler then began firing the gun at the men. Beeler not only shot the gun at the
men, but he pursued them as they ran away. Beeler fired at least four shots, but most
witnesses stated that he fired at least twice that number. Beeler was less than twenty feet
away from the men when he began shooting at them. He struck Frierson in the head and
in the arm. The close proximity to the victim, large number of shots fired, past problems
with the victim, shooting the victim in the head, and the expletive-laced statement yelled
at the men before the shooting all established that Beeler acted with the specific intent to
kill Frierson when he fired his gun. Therefore, no serious evidentiary dispute existed. The
trial court did not abuse its discretion when it denied Beeler’s tendered lesser-included
offense instruction.
Affirmed.
MAY, J., and BRADFORD, J., concur.