Stroud v. State

787 N.E.2d 430, 2003 Ind. App. LEXIS 743, 2003 WL 1986651

• Court: Indiana Court of Appeals
• Decided: April 30, 2003
• Docket: 71A03-0206-CR-215
• Status: Published

Opinions

OPINION

FRIEDLANDER, Judge.

Phillip Stroud appeals his conviction of Dealing in Cocaine,¹ a class B felony. Stroud present three issues for review, only two which need to be addressed on appeal. We restate those issues as:

1. Did the trial court commit reversible error in denying Stroud's motion for mistrial?

Was the evidence sufficient to support the conviction?

We reverse.

The facts favorable to the conviction are that at all times relevant to this appeal, Officer Kenneth Cornelis of the St. Joseph County Police Department was working on the Metro Special Operations Section (MSOS). While Officer Cornelis was working undercover with that unit, he met Stroud. When they first met, Stroud was introduced by the nickname "Poochie." Transcript at 290. MSOS supervisors subsequently provided Officer Cornelis with a photograph that he recognized as the man he knew as Poochie. Stroud was the man depicted in the photograph. On September 1, 1998, Officer Cornelis planned and participated in a controlled drug purchase. He was fitted with a concealed microphone and transmitter, which enabled surveillance officers to monitor his safety and record his conversation with the seller.

Officer Cornelis went to a pay phone and dialed a beeper number that Stroud had given him. He left a message informing Stroud of the amount of crack cocaine that he wished to purchase and giving Stroud the number of a pay phone where Stroud was to call him. A short time later, the pay phone rang and Cornelis answered. He recognized the voice of the caller as Stroud's. Officer Cornelis asked Stroud if he "could come through and buy a hundred dollars worth." Transcript at 298. Stroud asked how long he was going to be, and Officer Cornelis responded that it would be about twenty minutes. That telephone conversation was recorded and admitted into evidence.

Officer Cornelis went to Huron Street and parked his car. A short time later, Stroud drove up and pulled directly in front of Officer Cornelis's vehicle. Stroud exited his vehicle and got into the front passenger seat of Officer Cornelis's vehicle. Stroud told Cornelis that he had an extra twenty dollars' worth of crack cocaine, and asked Cornelis if he had an extra twenty dollars to pay for it. Officer Cornelis declined, stating that he had only enough money to pay for one hundred dollars' worth of the drug. At that point, Stroud produced a clear plastic bag containing a "yellowish, rock-like substance," id. at 294, and placed it in Officer Cornel-is's hand. Officer Cornelis inspected the substance and then gave Stroud one hundred dollars. Stroud asked if Cornelis had "any buddies that were interested in getting more product." Id. at 295. Officer Cornelis replied that he did not. Stroud exited the vehicle and walked away. That conversation was recorded and the tape was entered into evidence.

Officer Cornelis drove to the MSOS office and went inside. Sergeant Michael Critchlow took a small portion of the substance that Officer Cornelis had purchased from Stroud and tested it using a NIK Field Test Kit. The substance, which weighed 1.6 grams, tested positive for cocaine. Sergeant Critchlow returned the bag and its contents to Officer Cornelis, who placed it in a clear plastic evidence bag and heat-sealed it. Officer Cornelis then placed his initials on each side of the seal.

Stroud was subsequently charged with dealing in cocaine as a class B felony and the matter proceeded to trial. While discussing preliminary matters on the morning that trial was to commence, defense counsel apprised the trial court about a newspaper article that appeared on the front page of that morning's local newspaper. Under a bold headline reading, "Stroud told to act properly during drug trial" appeared a photograph of a shackled Stroud being escorted into the courtroom on the first day of trial. Defendant's Exhibits Binder, Defendant's Exhibit A.² The article recounted the court's comments to Stroud before the jurors were brought into the courtroom. The second paragraph of the article stated, "Mindful of previous disruptive behavior in court by Stroud, who is also charged as the triggerman in the triple homicide near Lakesville, Judge William T. Means immediately informed Stroud of the court's expectations." Id. In addition, the lengthy article detailed examples of bizarre and disruptive behavior exhibited by Stroud in prior criminal proceedings against him, and informed the reader that he was currently serving a 50-year sentence as a result of a drug-related conviction. After calling the article to the trial court's attention, Stroud's counsel asked the court to "inquire of the jury whether they have read or heard anything about the trial when they get in so that we can see that they didn't read that." Transcript at 256. The court granted that request and the following colloquy ensued after the jury returned to the courtroom:

THE COURT: I did wish to inquire whether any of you have read or seen anything in the media overnight concerning this case?

(Jurors indicate affirmatively.)

THE COURT: All right. I see several hands up. Let's see. Let's start with Mr. Ristow. What have you seen and read, sin?

MR. RISTOW: Pardon me?

THE COURT: What have you seen and/or read?

MR. RISTOW: Well, in this morning's paper, I read about this gentleman over here.

THE COURT: All right.

MR. RISTOW: And that he's going to be on trial for possibly a murder case.

THE COURT: All right. Okay. All right. And let's see. I saw Ms. Jojo's hand up.

MS. JOJO: Same thing. Same article.

THE COURT: Same article And that would be then, Mrs. Ryback, also.

MS. RYBACK: Same thing.

THE COURT: All right. And I believe I saw Mr. Seltzer's hand up. Same thing you've read about this case in the morning paper?

MR. SELTZER: Yes.

Transcript at 2683-64. After the court finished questioning the jury, defense counsel submitted a motion for mistrial, arguing that the jury had been "hopelessly contaminated" by the newspaper article Trom-script at 265. The trial court denied the motion. At the conclusion of trial, the jury returned a verdict convicting Stroud of the charged crimes, as set out above.

1.

The State acknowledges that Lindsey v. State, 260 Ind. 351, 295 N.E.2d 819 (1973) provides guidance for situations where, as here, there is a possibility that a jury has been exposed to potentially prejudicial media coverage after trial commenced. The Lindsey court set forth the following guidelines: (1) When the court becomes aware of the possibility of improper and prejudicial publicity, it should make a determination regarding the likelihood of resulting prejudice. This determination is made by considering both the content of the publicity and the likelihood that it came to the attention of any of the jurors. Id. (2) If, after such an evaluation, the court determines that the risk of prejudice appears substantial, it should interrogate the jury collectively to determine who, if any, has been exposed. Id. If no juror was exposed, the court should instruct the jury about the hazards of such exposure and about the need for avoiding exposure to out-of-court comments about the case. (8) If any juror was exposed, the court must determine the degree of exposure and the likely effect thereof, which is done by interrogating that juror individually, ie., outside the presence of the other Jurors. Each juror so interrogated should be individually admonished. (4) After interrogating and admonishing the exposed jurors, the court should assemble and collectively admonish the rest of the jurors along the lines set out in (1) above. (5) If the imperiled party deems the above procedures insufficient to remove the peril, he should move for a mistrial, Id. The trial court should declare a mistrial if it believes the peril to be substantial and incurable. The decision whether to grant a mistrial under these cireumstances is committed to the trial court's discretion, and we will reverse only if we are convinced that the defendant was subjected to substantial peril. Id.

When apprised of the existence of the article in the instant case, the trial court asked if any of the jurors had seen the article Four jurors raised their hands. At that point, the trial court should have met individually with those jurors to determine the extent to which they had been contaminated. The court failed to do that. Instead, the court questioned those jurors in the presence of the other jurors. When questioned, the exposed jurors divulged to the court the nature of the material in the article. As a result, the remainder of the jury was also contaminated. Finally, it appears from the record that the trial court did not specifically admonish any of the jurors, either collectively or individually, to disregard what they had read or heard with respect to that particular article Thus, the trial court failed to follow the procedure prescribed in Lindsey in two important respects. First, the court questioned the initially-exposed jurors about the content of the article in the presence of the other jurors who had not read the article. That, in turn, contaminated those who had not read the article. Second, the court did not specifically admonish the jurors to disregard what they read in the article in question. The trial court concluded that the article did not taint the jury such that it placed Stroud in a position of substantial peril. It was upon that basis that the trial court denied the motion for mistrial. We conclude that such constituted an abuse of discretion.

We note that the State contends that the trial court "thoroughly" admonished the jury. Brief of Appellee at 5. We cannot agree with that assessment. After ascertaining the extent to which the jurors were tainted by the article, the court addressed the jury as follows:

I eannot remember at this juncture whether I took the precaution to request that you not read any articles or watch television or any other source of media, including radio or television or any other source of media, including radio to reporting [sic] anything about this case, and it's-I say that because I wanted to stress that it's your sworn duty to consider only evidence that is admitted in this courtroom through testimony of witnesses and any exhibits that may be submitted to you for examination.

The point being that any observer can have his or her own view of what is transpiring or how the proceedings are going, but you people have a sworn duty to only consider what you see and hear in this courtroom.

And so I request that so far as the from this point on, that you try very hard to avoid any reporting of this in the media in any form.

Transcript at 264. So far as we can tell, the foregoing constitutes the entirety of the admonishment with respect to the newspaper article.³ Although the court instructed the jury on the subject of what it could consider, it did not caution the jury about the kind of information that it could not consider, including the information contained in the newspaper article. That distinction is eritical in this context. In view of the magnitude of the taint, the court should have, at a minimum, affirmatively instructed the jurors to disregard anything they read in the article. The failure to do so rendered the court's curative comments ineffectual.

The dissent believes that the error was cured by the trial court's admonishments. We reiterate here that the admonishments, such as they were, were not specific enough to address the very specific prejudicial material that was injected into the trial by virtue of the newspaper article. One of the two admonishments cited by the dissent was, in fact, delivered at the outset of trial along with several other general instructions, and therefore cannot be properly viewed as an admonishment in the first place. The other admonishment cited by the dissent was little more than a boilerplate pronouncement to the effect that jurors should consider only evidence presented at trial, and should disregard extraneous sources such as outside publicity. The court diluted the already weak curative impact of this formulaic statement by explaining that outside sources should be rejected because, among other things, "any observer can have his or her own view of what is transpiring or how the proceedings are goingl.]" Transcript at 264. If general instructions and boilerplate admonishments such as these are sufficient to eure an error of this magnitude, then we are hard-pressed to imagine a scenario in which more aggressive curative steps on the trial court's part would ever be warranted.

The dissent is also of the view that the evidence of guilt was "overwhelming," and that in light of such evidence, the probable persuasive effect of the material in question was relatively minor and did not contribute to the guilty verdict. We agree that in most cases, our dissenting colleague's analysis would carry the day. Several factors present in the instant case, however, convince us that reversal here is required.

First, we note that the information gleaned from the articles was highly prejudicial. It informed the jury that Stroud had already been convicted of committing an offense similar to that for which he was then on trial. It informed the jury that Stroud was currently charged with an even worse crime-a triple homicide. It also informed the jury of egregious inappropriate and antisocial behavior exhibited by Stroud during previous criminal proceedings. Second, we note that this information would not have come before the jury through any other means. Cf. Barnes v. State, 693 N.E.2d 520, 525 (Ind.1998) (we affirmed the denial of a motion for change of venue based upon a claim that the jury pool was tainted by prejudicial media coverage, noting that the "media coverage in this case was almost completely coextensive with (and therefore cumulative of) the evidence presented at trial and did not unfairly portray [the defendant] as guilty despite frequently mentioning that he was the suspect in the case.") We are hard-pressed to imagine an example where there is a greater danger of the jury drawing the "forbidden inference," i.e., "that because of a defendant's criminal propensity, he committed the charged act." Bald v. State, 766 N.E.2d 1170, 1173 (Ind.2002).

Finally, we note that the jury was exposed to the newspaper article early in the proceedings-before the State had even presented its case. In this significant way, the instant case presents an even more compelling case for reversal than Lindsey. In Lindsey, the jury was exposed to the article following the conclusion of the State's case-in-chief, The court acknowledged that there may be a "natural and worthy tendency" on the part of trial courts in such cireumstances to "salvage" the trial, no doubt in view of the fact that considerable time and resources have already been invested in the trial. Lindsey v. State, 295 N.E.2d at 823. Even under those cireumstances, however, where the contamination occurred well into the trial, the court concluded that "the prime consideration of the trial judge should have been to protect the integrity of the trial and not to salvage it." Id. at 824. Unlike Lindsey, there was comparatively little to "salvage" in the instant case. The court could have selected a new jury panel at the point it learned of the contamination with a minimal loss of time and, with the exception of the initial jury selection process itself, no wasted effort. To these considerations we add our previous conclusions, viz., that the trial court failed to follow the correct procedure when the newspaper article was brought to its attention and, in so doing, further exacerbated the problem.

For all of these reasons, we conclude that the jury was irreversibly tainted by exposure to the newspaper article. Therefore, the trial court abused its discretion in denying Stroud's motion for mistrial and the conviction must be reversed.

2.

Although we have determined that Stroud's conviction must be reversed, we address his claim that the evidence was insufficient to support the conviction, because if he prevails on this claim, double jeopardy principles bar a retrial. Robinette v. State, 741 N.E.2d 1162 (Ind.2001).

Our standard for reviewing claims of insufficient evidence is well settled. We consider only the evidence most favorable to the judgment, together with all reasonable inferences to be drawn from that evidence. Green v. State, 756 N.E.2d 496 (Ind.2001). We neither reweigh the evidence nor judge witness credibility, and will affirm upon finding substantial evidence of probative value from which the jury could find the defendant guilty beyond a reasonable doubt. Id.

Officer Cornelis's testimony clearly described the details of the drug purchase operation that transpired on September 1, 1998. Officer Cornelis testified that Stroud was the individual who sold him the cocaine that night. The State introduced into evidence a recorded conversation between Officer Cornelis and Stroud in which they discussed the details of the impending drug transaction. The State also introduced into evidence a recording of the drug purchase transaction in which Stroud participated. Both recordings were intelligible. In addition, the testimony of other surveillance officers who were present on that night corroborated Officer Cornelis's testimony regarding the events surrounding the drug purchase. Finally, the substance that Stroud sold to Officer Cornelis tested positive for cocaine. The aforementioned evidence was sufficient to support the conviction. Therefore, retrial on the dealing in cocaine charge does not offend principles of double jeopardy.

Judgment reversed.

NAJAM, J., concurs. SHARPNACK, J., dissents with opinion.

1 . Ind.Code Ann. § 35-48-4-1 (West, PREMISE through 2002 ist Special Sess.).

2 . The pages in the Defendant's Exhibit Binder are not numbered.

3 . We are aware that, a few moments later, as part of its general instructions to the jury before the State presented its case-in-chief, the court stated,

There may be publicity in newspapers, on radio, or television concerning this trial. You should not read or listen to those accounts, but should confine your attention to the court proceedings, listen attentively to the evidence as it comes from the witnesses, and reach a verdict solely upon what you hear and see in this court.

Transcript at 29. Such was not given as an admonition, however, and may not be so characterized after the fact. Therefore, it has no bearing on our analysis.