MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Nov 21 2018, 9:12 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chad A. Montgomery Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana
Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Troy Eugene Howard, November 21, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-933 v. Appeal from the Warren Circuit Court State of Indiana, The Honorable Hunter Reece, Appellee-Plaintiff Judge Trial Court Cause No. 86C01-1612-F5-50
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018 Page 1 of 6 [1] Following a jury trial, Troy E. Howard was convicted of Level 5 felony
operating a motor vehicle after forfeiture of license for life and Level 6 felony
resisting law enforcement. On appeal, Howard argues that the trial court
abused its discretion in denying his motion for a mistrial after a potential juror
made a statement in front of the entire jury panel that suggested Howard had
been in trouble before.
[2] We affirm.
Facts & Procedural History
[3] On December 5, 2016, Warren County Sheriff’s Deputy Kody Perry observed
Howard, who he knew to have a suspended license, driving a motor vehicle on
State Road 63. Deputy Perry allowed Howard to pass him and then moved in
behind Howard’s vehicle and attempted to initiate a traffic stop by activating his
emergency lights and sirens. Howard did not stop, but instead continued
driving for several miles, turning on different roads, failing to stop at stop signs,
passing multiple vehicles where no passing lane existed and going partially off
the road to do so, and reaching speeds up to ninety-eight miles per hour. The
vehicle pursuit ended after Howard drove into a field. He then fled on foot. A
short time later, Howard was apprehended.
[4] On December 7, 2016, the State charged Howard with Level 5 felony operating
a motor vehicle after forfeiture of license for life and Level 6 felony resisting law
enforcement. The State also alleged that Howard was a habitual offender. A
jury trial was held on February 14, 2018.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018 Page 2 of 6 [5] During voir dire the trial court went through its initial questions with each
potential juror. Juror 116 indicated that he had not formed an opinion as to
Howard’s guilt. The trial court then asked Juror 116, “Is there any reason I
have not covered by these questions that you believe would make you unable to
listen with an unbiased mind to the evidence in this case and reach a fair and
impartial decision?” Transcript Vol. 2 at 56. Juror 116 responded, “Well, I have
known him all my life, since high school, and I have seen him duck trouble and
so you don’t need, (inaudible).” Id. The trial court followed up with Juror 116,
informing him that Howard was presumed innocent and that a verdict must be
based solely upon what the juror would see and hear in the courtroom. The
court then asked Juror 116, “Would you be able to set aside any opinions, prior
information or belief or your knowledge of just knowing [Howard] in the
community and render an impartial verdict based only upon the law and
evidence you hear during this trial?” Id. at 57. Juror 116 responded, “Sure.”
Id.
[6] Howard then moved for a mistrial outside the presence of the prospective
jurors. He argued that Juror 116’s statement essentially constituted Ind.
Evidence Rule 404(b) material and now “the jury knows there have been at
least prior bad acts in that guys [sic] opinion.” Id. at 59. The trial court denied
Howard’s motion, finding that statements of jurors are not evidence, that Juror
116’s statement was ambiguous and could have referred to non-criminal acts or
traffic-related issues, and that because the parties had agreed to stipulate to the
jury that Howard was a habitual traffic violator, “the very nature” of the offense
Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018 Page 3 of 6 showed that Howard had prior bad driving acts. Id. at 61. The trial court
concluded that Juror 116’s statement did not “rise[] to the level of requiring a
mistrial which is an extreme remedy for incurable issues.” Id. The trial court
also commented that the impact from Juror 116’s comment could “be easily
brushed away” during opening or closing statements. Id. at 62. The trial court
offered to provide an admonishment if Howard so desired, but Howard
declined because he did not want to draw attention to Juror 116’s statement.
[7] The prospective jurors were then brought back into the courtroom and voir dire
of the new prospective jurors in the jury box, including Juror 116, continued.
At the conclusion of questioning of those prospective jurors, Juror 116 was
excused. At the conclusion of trial, the jury found Howard guilty as charged,
and the trial court sentenced him to an aggregate term of 2068 days. Howard
now appeals. Additional facts will be provided as necessary.
Discussion & Decision
[8] The grant or denial of a motion for mistrial rests within the sound discretion of
the trial court and is reviewed for an abuse of discretion. Brittain v. State, 68
N.E.3d 611, 619 (Ind. Ct. App. 2017), trans. denied. We afford the trial court
great deference on appeal because the trial court is in the best position to
evaluate the relevant circumstances of an event and its impact on the jury. Id.
at 620. To prevail on appeal from the denial of a motion for a mistrial, the
appellant must demonstrate that the statement or conduct in question was so
prejudicial and inflammatory that he was placed in a position of grave peril to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018 Page 4 of 6 which he should not have been subjected. Id. The declaration of a mistrial is an
extreme action that is warranted only when no other action can be expected to
remedy the situation. Kemper v. State, 35 N.E.3d 306, 309 (Ind. Ct. App. 2015),
trans. denied.
[9] Howard argues that a mistrial was warranted because Juror 116’s comment
indicated to the jury that he had prior bad acts. We disagree. As the trial court
pointed out, Juror 116’s statement was ambiguous as to what Juror 116 meant
when he stated that he had “seen [Howard] duck trouble” in the past. Transcript
Vol. 2 at 56. This statement did not necessarily indicate that Howard had a
criminal record. In any vein, the trial court also properly recognized that it was
clear from the nature of the case that Howard had prior traffic-related bad acts.
Indeed, the parties stipulated that Howard was a habitual traffic violator.
[10] Further, we note that Juror 116 stated that he had not formed an opinion as to
Howard’s guilt and that he would be able to set aside his opinions and
knowledge he had of Howard and render an impartial verdict based on the law
and the evidence presented during the trial. This indicated to other prospective
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Nov 21 2018, 9:12 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chad A. Montgomery Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana
Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Troy Eugene Howard, November 21, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-933 v. Appeal from the Warren Circuit Court State of Indiana, The Honorable Hunter Reece, Appellee-Plaintiff Judge Trial Court Cause No. 86C01-1612-F5-50
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018 Page 1 of 6 [1] Following a jury trial, Troy E. Howard was convicted of Level 5 felony
operating a motor vehicle after forfeiture of license for life and Level 6 felony
resisting law enforcement. On appeal, Howard argues that the trial court
abused its discretion in denying his motion for a mistrial after a potential juror
made a statement in front of the entire jury panel that suggested Howard had
been in trouble before.
[2] We affirm.
Facts & Procedural History
[3] On December 5, 2016, Warren County Sheriff’s Deputy Kody Perry observed
Howard, who he knew to have a suspended license, driving a motor vehicle on
State Road 63. Deputy Perry allowed Howard to pass him and then moved in
behind Howard’s vehicle and attempted to initiate a traffic stop by activating his
emergency lights and sirens. Howard did not stop, but instead continued
driving for several miles, turning on different roads, failing to stop at stop signs,
passing multiple vehicles where no passing lane existed and going partially off
the road to do so, and reaching speeds up to ninety-eight miles per hour. The
vehicle pursuit ended after Howard drove into a field. He then fled on foot. A
short time later, Howard was apprehended.
[4] On December 7, 2016, the State charged Howard with Level 5 felony operating
a motor vehicle after forfeiture of license for life and Level 6 felony resisting law
enforcement. The State also alleged that Howard was a habitual offender. A
jury trial was held on February 14, 2018.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018 Page 2 of 6 [5] During voir dire the trial court went through its initial questions with each
potential juror. Juror 116 indicated that he had not formed an opinion as to
Howard’s guilt. The trial court then asked Juror 116, “Is there any reason I
have not covered by these questions that you believe would make you unable to
listen with an unbiased mind to the evidence in this case and reach a fair and
impartial decision?” Transcript Vol. 2 at 56. Juror 116 responded, “Well, I have
known him all my life, since high school, and I have seen him duck trouble and
so you don’t need, (inaudible).” Id. The trial court followed up with Juror 116,
informing him that Howard was presumed innocent and that a verdict must be
based solely upon what the juror would see and hear in the courtroom. The
court then asked Juror 116, “Would you be able to set aside any opinions, prior
information or belief or your knowledge of just knowing [Howard] in the
community and render an impartial verdict based only upon the law and
evidence you hear during this trial?” Id. at 57. Juror 116 responded, “Sure.”
Id.
[6] Howard then moved for a mistrial outside the presence of the prospective
jurors. He argued that Juror 116’s statement essentially constituted Ind.
Evidence Rule 404(b) material and now “the jury knows there have been at
least prior bad acts in that guys [sic] opinion.” Id. at 59. The trial court denied
Howard’s motion, finding that statements of jurors are not evidence, that Juror
116’s statement was ambiguous and could have referred to non-criminal acts or
traffic-related issues, and that because the parties had agreed to stipulate to the
jury that Howard was a habitual traffic violator, “the very nature” of the offense
Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018 Page 3 of 6 showed that Howard had prior bad driving acts. Id. at 61. The trial court
concluded that Juror 116’s statement did not “rise[] to the level of requiring a
mistrial which is an extreme remedy for incurable issues.” Id. The trial court
also commented that the impact from Juror 116’s comment could “be easily
brushed away” during opening or closing statements. Id. at 62. The trial court
offered to provide an admonishment if Howard so desired, but Howard
declined because he did not want to draw attention to Juror 116’s statement.
[7] The prospective jurors were then brought back into the courtroom and voir dire
of the new prospective jurors in the jury box, including Juror 116, continued.
At the conclusion of questioning of those prospective jurors, Juror 116 was
excused. At the conclusion of trial, the jury found Howard guilty as charged,
and the trial court sentenced him to an aggregate term of 2068 days. Howard
now appeals. Additional facts will be provided as necessary.
Discussion & Decision
[8] The grant or denial of a motion for mistrial rests within the sound discretion of
the trial court and is reviewed for an abuse of discretion. Brittain v. State, 68
N.E.3d 611, 619 (Ind. Ct. App. 2017), trans. denied. We afford the trial court
great deference on appeal because the trial court is in the best position to
evaluate the relevant circumstances of an event and its impact on the jury. Id.
at 620. To prevail on appeal from the denial of a motion for a mistrial, the
appellant must demonstrate that the statement or conduct in question was so
prejudicial and inflammatory that he was placed in a position of grave peril to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018 Page 4 of 6 which he should not have been subjected. Id. The declaration of a mistrial is an
extreme action that is warranted only when no other action can be expected to
remedy the situation. Kemper v. State, 35 N.E.3d 306, 309 (Ind. Ct. App. 2015),
trans. denied.
[9] Howard argues that a mistrial was warranted because Juror 116’s comment
indicated to the jury that he had prior bad acts. We disagree. As the trial court
pointed out, Juror 116’s statement was ambiguous as to what Juror 116 meant
when he stated that he had “seen [Howard] duck trouble” in the past. Transcript
Vol. 2 at 56. This statement did not necessarily indicate that Howard had a
criminal record. In any vein, the trial court also properly recognized that it was
clear from the nature of the case that Howard had prior traffic-related bad acts.
Indeed, the parties stipulated that Howard was a habitual traffic violator.
[10] Further, we note that Juror 116 stated that he had not formed an opinion as to
Howard’s guilt and that he would be able to set aside his opinions and
knowledge he had of Howard and render an impartial verdict based on the law
and the evidence presented during the trial. This indicated to other prospective
jurors that whatever prior knowledge Juror 116 had of Howard was not so
serious or prejudicial that it should have any impact on the case at hand.
[11] Finally, the trial court conveyed to each prospective juror, through its
explanation of voir dire and its questioning, that they would have to render a
verdict only on the evidence presented during the trial. Upon being sworn in,
each juror took an oath that they would “return a true verdict according to the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018 Page 5 of 6 law and the evidence as it is presented to you during this trial.” Id. at 80.
Thereafter, the trial court also instructed the empaneled jury that their verdict
must be based “solely upon what you see and hear in this Court” and “not be
influenced in any way by information, opinions, or publicity outside the
Courtroom.” Id. at 82, 83.
[12] In light of the forgoing, we conclude that the trial court properly denied
Howard’s motion for a mistrial as Juror 116’s comments were not so prejudicial
as to place Howard in a position of grave peril. See Hise v. State, 452 N.E.2d 913
(Ind. 1983) (holding that prospective juror’s comment that she could not
presume the defendant to be innocent because she knew the defendant too well
did not place the defendant in grave peril and thus, trial court did not abuse its
discretion in denying defendant’s motion for mistrial); Stroud v. State, 450
N.E.2d 992 (Ind. 1983) (holding that prospective juror’s comment that she
could not hear the case fairly and impartially because her daughters knew the
defendant and she feared for their safety did not relate to any substantive facts
or evidentiary matters that would prejudice the other jurors such that a mistrial
was warranted).
[13] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-933 | November 21, 2018 Page 6 of 6