Michelle L. Woodward
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Katherine L. Modesitt
Attorney General of Indiana
Deputy Attorney General
Michelle L. Woodward
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Katherine L. Modesitt
IVORY BARNES, )
Appellant (Defendant below), ) Supreme Court
) Cause No. 47S00-9611-CR-710
STATE OF INDIANA, )
Appellee (Plaintiff below). )
I. Did the State prove beyond a reasonable doubt that Barnes knowingly killed the victim despite his claim of alcohol intoxication?
II. Did the trial court err in replacing one of the original jurors with an alternate?
III. Did the trial court err in denying Barnes's motion for a change of venue?
blood was spattered "all over" the kitchen. Meanwhile, a verbal altercation ensued outside
between Barnes and Britt. Barnes was arrested for disorderly conduct after he ignored three
warnings from police to "settle down."
The physical evidence pointed to Barnes as the assailant. His fingerprints were found on two items recovered from the kitchen -- a bloody meat cleaver and a metal folding chair. Blood found on several items -- the chair, a knife also recovered from the kitchen, Barnes's clothes, and his arms and fingers -- was subjected to DNA testing. The resulting genetic profile showed that the blood could not have been Barnes's blood, was the same type as Lundy's, and was found in one of every 6250 Caucasians (Lundy was Caucasian). The forensic pathologist who conducted the autopsy testified that Lundy died from suffocation caused by extensive blunt-force fractures of the larynx. The evidence showed that Lundy also suffered multiple stab wounds and bruises to the neck and facial area. A jury convicted Barnes of murder and he appeals.
beer in the afternoon on the day of the killing, first alone and then with his brother and
several mutual friends. Barnes eventually made his way to the bar where he met Lundy. The
two had no prior acquaintance. Lundy bought Barnes at least one drink and suggested they
go to a different bar. Barnes agreed but stated that he wanted to stop at his mother's house
to get money. Lundy drove the two to the house where Barnes entered through a window
because he did not have a key. As Barnes went to get a beer in the kitchen, Lundy assaulted
Barnes from behind with a chair. Barnes testified that he could not remember what
happened after that point and that he next saw Lundy on the floor. He "panicked" and
decided to leave in Lundy's truck to find his brother back at the bar. When asked by his
lawyer if he killed Lundy, Barnes replied: "I can't remember doing it, but everything points
to me . . . ." When the State asked Barnes a number of questions about his possible use of
the items found in the kitchen against Lundy, Barnes answered over and over: "I don't
remember." Although there was testimony that Barnes drank beer throughout the day, the
precise amount of alcohol he consumed before going to the bar is unclear. The bartender
testified that Barnes had three or four beers and two shots of whiskey. The officer who
helped Barnes push Lundy's truck to the side of the road testified that he had no reason to
believe that Barnes was intoxicated. Britt stated that Barnes smelled of alcohol when they
met at the house and Barnes's brother testified that Barnes was slurring his words outside
of the bar when he left with Lundy.
Whether the defendant was so intoxicated that he could not form the mens rea required for the crime is a question for the trier of fact. Owens v. State, 659 N.E.2d 466, 472
(Ind. 1995). The conviction will be affirmed if there was substantial evidence of probative
value that would have allowed the factfinder to conclude beyond a reasonable doubt that the
defendant formed the required mental element. Id. Evidence of capacity to form criminal
mens rea includes ability to "devise a plan, operate equipment, instruct the behavior of others
or carry out acts requiring physical skill." Terry v. State, 465 N.E.2d 1085, 1088 (Ind.
1984). Other relevant considerations include the defendant's ability to attempt to hide his
wrongdoing or take himself from place to place after the crime. Montgomery v. State, 521
N.E.2d 1306, 1308 (Ind. 1988). If the defendant was able to form the required mental
element of the crime, the degree of intoxication is immaterial. State v. Van Cleave, 674
N.E.2d 1293, 1303 (Ind. 1996), reh'g granted in part, 681 N.E.2d 181 (Ind. 1997), cert.
denied, __ U.S.L.W. __ (U.S. Feb. 23, 1998) (No. 97-669).
Barnes was charged with "knowingly" killing Gary Lundy. Ind. Code § 35-42-1-1(1) (1993). "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so." Ind. Code § 35-41-2-2(b) (1993). The State contends sufficient evidence was presented showing that Barnes was aware of his actions. We agree. Barnes was able to formulate a plan after the killing -- seeking out his brother and telling his housemate Britt that he wanted to move Lundy "downstairs" before his mother got home. Wrapping the body in a sheet and fleeing in Lundy's truck show "knowledge of the criminality of his actions." Van Cleave, 674 N.E.2d at 1304. And despite consuming alcohol before the crime, Barnes was able to engage in acts requiring physical dexterity, including climbing through a window to get into his mother's house, wrapping
Lundy's body in a sheet, driving Lundy's truck, and walking back to the house after the
vehicle overheated. Indeed, the gravamen of Barnes's testimony was not that he was
incapable of "knowing" conduct, but rather that he had no memory of what occurred.
Memory loss alone, however, is not inconsistent with ability to form criminal mens rea. See,
e.g., Vickers v. State, 653 N.E.2d 110 (Ind. Ct. App. 1995) (in prosecution for resisting law
enforcement, defendant claimed to remember very little of the pursuit due to intoxication);
cf. McClain v. State, 678 N.E.2d 104, 107 n.5 (Ind. 1997) ("It is one thing to say a person
acted involuntarily, and quite another to say that the person has no memory of the event.")
(citations omitted). To the extent he asserted a lack of criminal culpability due to
intoxication, the jury could have found Barnes's account to be not credible in light of the
evidence indicating his awareness of his actions before and after the killing. In sum,
substantial evidence was presented that would have allowed the jury to conclude beyond a
reasonable doubt that Barnes knowingly killed Gary Lundy.See footnote
an alternate. Trial judges have "significant leeway" in making this determination because
"they see jurors firsthand and are in a much better position to assess a juror's ability to serve
without bias or intimidation and decide the case according to law." Jervis v. State, 679
N.E.2d 875, 881-82 (Ind. 1997); see also Ind. Trial Rule 47(B). The decision to replace a
juror with an alternate is reviewed for an abuse of discretion. Jervis, 679 N.E.2d at 881. Just
before opening statements, the juror in question told the court that he knew Barnes's brother
from work. It is unclear whether the two men still worked for the same company at the time
of trial. Although the juror indicated that he and the brother had never discussed the case,
the court dismissed the juror over Barnes's objection.
Barnes correctly observes that a juror's relationship with a State's witness is not per se disqualifying. See, e.g., Grey v. State, 553 N.E.2d 1196, 1199 (Ind. 1990). However, that general rule is the beginning, not the end, of the analysis. The claim here turns on the critical role of firsthand observation in determining whether any juror -- irrespective of relationships with expected witnesses -- may be unable to reach a decision free from extraneous considerations. The juror in this case asserted several times that he believed he could render a verdict based on the evidence. Expressing concerns about his "demeanor," the trial court nonetheless dismissed him and explained that "this juror appeared hesitant in spite of my repeated questions. . . . So, based on everything I've seen and heard, I am excusing him." The court's concern was grounded in an apparent pending battery charge against Barnes's brother and the juror's possible fear of reprisals in light of the charge. Barnes does not contend that the replacement was biased and alternate jurors are presumed to be equal to the
task. Jervis, 679 N.E.2d at 882. Because the decision to dismiss the juror here was
reasonable based on the above factors, the trial court did not abuse its discretion.
failed to challenge her at trial, he cannot now question the outcome based on her
participation. Short v. State, 443 N.E.2d 298, 306 (Ind. 1982). Presumably recognizing that
any claim of error on that ground is waived, Barnes instead maintains that the admitted use
of racial epithets by the three prospective jurors reflected a pervasive local bias against
African-Americans. With respect to those three, this certainly illustrates possible if not
likely prejudice on grounds of race, but it is anecdotal evidence that does not necessarily
reflect widespread racial bias. Barnes further contends, and the State does not dispute, that
less than one per cent of Lawrence County is African-American. We recently reiterated that
although these demographics might reflect some possibility of racial bias, a mere possibility
of prejudice does not suffice to obtain a change of venue. Moore, 678 N.E.2d at 1263.
Rather, there must be a showing that the jury could not be impartial. Evans v. State, 563
N.E.2d 1251, 1258 (Ind. 1990), modified on reh'g, 598 N.E.2d 516 (Ind. 1992). In the
absence of some proof of systematic bias -- and Barnes offers none -- his claim is reduced
to the mere possibility of prejudice held to be insufficient in Moore and other cases. See also
Davidson v. State, 580 N.E.2d 238, 244 (Ind. 1991). Because Barnes does not argue that any
of the seated jurors was unable to decide the case according to law, the trial court did not err
in denying his motion for a change of venue due to racial bias.
The last contention is that negative pretrial publicity about the case planted preconceived notions of guilt in the minds of potential jurors.See footnote 3 Barnes observes that the
killing and pretrial proceedings were covered in a local newspaper and on local radio
stations. However, other than references to Lundy's death as a "murder" and descriptions
of the meat cleaver and knife as "murder weapons," Barnes does not maintain that the media
coverage distorted the facts. Rather, without attempting to show that the jury's view of the
case was irreparably tainted due to news reports, Barnes again suggests a presumption of
community bias: "Potential jurors in Lawrence County would be unable to realistically set
aside the prejudice resulting from the publicity and render a fair verdict."
There is no such presumption. Indeed, reversal on this issue requires more than a bald assertion because exposure to press coverage is not disqualifying. Ind. Code § 35-37-1-5(b) (1993) (a prospective juror may be allowed to serve despite preconceived notions of guilt due to pretrial publicity so long as the juror states, and the court concludes, that he or she can render a verdict based on the law and the evidence). Although any news story that implicated Barnes in the killing was "prejudicial," this does not rise to the level of "prejudicial publicity" that would have required a change of venue so long as the reports do not contain inadmissible evidence or distort the facts. Evans, 563 N.E.2d at 1258. Even where the press coverage crosses that line, the defendant must show that jurors are unable to render a verdict on the evidence because of the reports. Moore v. State, 515 N.E.2d 1099, 1102 (Ind. 1987). The trial court held a hearing on Barnes's motion for a change of venue. We have reviewed the newspaper articles and radio report transcripts that were submitted at
that hearing. 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 Barnes
as guilty despite frequently mentioning that he was the suspect in the case. We thus see no
actual prejudice to Barnes nor any good reason to presume that the jury pool was otherwise
unfairly tainted. In addition, Barnes has not directed our attention to any evidence in the
record showing that jurors were unable to be impartial due to the pretrial media coverage.
As we have held in many prior decisions, this also is fatal to his claim. See, e.g., White v.
State, 687 N.E.2d 178, 179 (Ind. 1997); Owens v. State, 659 N.E.2d 466, 475 (Ind. 1995);
Harrison v. State, 644 N.E.2d 1243, 1249 (Ind. 1995). In sum, the trial court did not err in
denying Barnes's motion for a change of venue.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
any reference to Barnes's race.
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