ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
David P. Freund
Deputy Public Defender
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
RICKY LEE JACKSON, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 83S00-9812-CR-770
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE VERMILLION CIRCUIT COURT
The Honorable Bruce V. Stengel, Judge
Cause No. 83C01-9803-CF-20
ON DIRECT APPEAL
May 19, 2000
Ricky Lee Jackson was convicted of the murder of his wife. He
was sentenced to fifty-five years imprisonment. In this direct appeal, he raises
five issues for review: (1) whether the trial court improperly dismissed a juror;
(2) whether the trial court abused its discretion in permitting the prosecution to
cross- examine Jackson regarding a prior battery against the victim; (3) whether the
trial court abused its discretion in refusing to allow Jackson to impeach a
prosecution witness with extrinsic evidence; (4) whether the evidence was sufficient to support
a conviction of murder; and (5) whether the trial court abused its discretion
in sentencing him. We affirm the conviction and remand for resentencing on
Factual and Procedural Background
On the morning of March 20, 1998, at approximately 8:00 a.m., Jacksons wife
Debbie refused to get out of bed. This triggered an argument that
continued as Jackson and his wife made three or four circuits of the
downstairs of their house. Jackson then looked for his gun to scare
her with. He became angry when he did not find it in
the top drawer of their dresser. Debbie located it in the second
drawer, handed it to him, and proceeded to the kitchen. Jackson followed.
Jackson testified that he then cocked the gun, with an eye to
shooting it at the ceiling. According to Jackson, he decided not to
fire, but as he was lowering the gun, it discharged, striking Debbie in
the head. When Deputy Larry Keller arrived at the scene, Jackson was holding
Debbies head in his hands. Keller ordered Jackson to move away from
Debbie, but Jackson responded that if he did Debbie would bleed to death.
Keller observed that the living room was in a disarraya table had
been pushed up against the couch and the items on it had fallen
to the floor. Keller also observed that the couples top dresser-drawer was
broken and that the pewter buckle on Jacksons belt was broken in half.
Debbie died later that day as a result of the gunshot wound.
Jackson maintained throughout the investigation and trial that the shooting was accidental.
The jury convicted him of murder.
I. Dismissal of Juror
The morning after opening statements were given, a teacher-juror asked to be
excused, stating that she believed Jacksons nephew was one of her students.
The trial court announced that it would bring her in for questioning, but
would not allow the parties to question her. No objection was made
at that point. The juror told the court she had just discovered
this relationship and thought it would be difficult for her to be fair
and impartial. After the trial court had excused the juror, defense counsel
moved for a mistrial, arguing that the defense should have been given the
opportunity to question the juror.
The trial courts inquiry consisted of a few questions establishing that the juror
felt unable to be fair and impartial. We agree with Jackson that
the better course of action for the trial court would have been to
allow the parties to question the juror, at a minimum to confirm whether
the factual predicate of her concernthat she was a teacher of a nephew
of Jacksonswas true.
See Harris v. State, 659 N.E.2d 522, 525 (Ind.
1995) (juror was questioned by trial court and both parties before being dismissed);
Threats v. State, 582 N.E.2d 396, 398 (Ind. Ct. App. 1991) (same).
Jackson argues that excusing this juror violated Trial Rule 47(B), which provides for
replacement when a juror is unable or disqualified to perform his or her
duties. Jackson does not allege that the trial courts decision to dismiss
the juror resulted in the impaneling of a biased juror. Rather, he
alleges that the procedure the trial court followed was reversible error because it
did not allow him to question the juror who was dismissed. However,
because no objection was lodged to this procedure before the juror had been
dismissed, that issue is not preserved, and the only issue for appeal is
whether a mistrial was required.
The decision to grant or deny a motion for a mistrial lies within
the discretion of the trial court.
Heavrin v. State, 675 N.E.2d 1075,
1083 (Ind. 1996). A mistrial is an extreme remedy granted only when
no other method can rectify the situation. Id. On appeal, in
order to succeed from the denial of a mistrial, the defendant must demonstrate
that the conduct complained of was so prejudicial that it had a probable
persuasive effect on the jurys decision. See James v. State, 613 N.E.2d
15, 22 (Ind. 1993); Kelley v. State, 555 N.E.2d 140, 141 (Ind. 1990).
At the time Jackson moved for a mistrial, the trial courts only
alternatives were to send an already impaneled jury home or to deny the
motion. Because there was no showing of any prejudice to Jackson, the
trial court did not
abuse its discretion in denying Jacksons motion.
II. Cross-Examination Regarding Prior Battery
Prior to trial, Jackson filed a request for notice of any proposed Rule
404(b) evidence. The State responded by announcing its intention to introduce evidence
that Jackson had been arrested for committing a battery on Debbie in August
1996. Jackson filed a motion in limine, requesting that the evidence be
excluded. The trial court concluded that, given Jacksons contention that the killing
was accidental, the evidence was relevant to prove motive. The trial court
nevertheless ruled that the evidence should be excluded under Evidence Rule 403 because
the danger of unfair prejudice substantially outweighed its probative value. The trial
court then stated that, although the State would not be allowed to use
the evidence in its case-in-chief, the evidence could have some rebuttal value and
the issue might need to be revisited.
On direct examination, Jackson testified to his love for Debbie throughout their twenty-one
years of marriage, and to his love for her on the day he
shot her. On cross-examination, the State asked him if had also loved
his wife on March 3, 1996.
Defense counsel objected, and at a
hearing outside the presence of the jury, the State argued that evidence of
the battery was admissible to rebut Jacksons contention that he had always loved
his wife. The trial court agreed that the statement by the defendant
that he loved his wife every day of their marriage calls in the
question of that relationship so I will overrule the objection. Jackson challenges
admission of that evidence.
Under Evidence Rule 404(b), [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. . . . [but] may, however, be admissible [to prove]
motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident .
. . . In order to admit 404(b) evidence, the court must
(1) determine that the evidence is relevant to a matter at issue other
than the defendants propensity to commit the charged act, and (2) balance the
probative value of the evidence against its prejudicial effect pursuant to Rule 403.
Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999); Hicks v. State,
690 N.E.2d 215, 222-23 (Ind. 1997). This balancing is reviewed for an
abuse of discretion. See Byers, 709 N.E.2d at 1026-27; Hicks,
690 N.E.2d at 223. In addition, otherwise inadmissible evidence may become admissible
where the defendant opens the door to questioning on that evidence. See
Gilliam v. State, 270 Ind. 71, 76, 383 N.E.2d 297, 301 (1978).
Gilliam, in which this Court held that the evidence relied upon
to open the door must leave the trier of fact with a false
or misleading impression of the facts related. 270 Ind. at 76-77, 383
N.E.2d at 301. According to Jackson, because there was other evidence that
demonstrated that Jacksons marriage to Debbie was not always peaceful, and because he
merely professed his love for Debbie, the jury was not left with a
false impression that they did not have marital conflicts, and evidence of the
battery was inadmissible.
The trial court acted well within its discretion in making the pretrial
determination that although the battery was relevant to establish motive, the prejudice from
admitting the battery outweighed its probative value. It was also well within
the discretion of the trial court to determine that the unfair prejudice to
Jackson did not substantially outweigh the relevance of the battery and allow this
evidence as cross-examination on the point of Jacksons professed love for his wife.
Although it was clear that the Jacksons marriage was imperfect, cross-examination on
the battery was nevertheless relevant to rebut the suggestion, or the false impression,
that Jackson would not knowingly or intentionally harm someone he loved.
III. Impeachment on Collateral Issue
Deputy Larry Keller, the first person to arrive at the Jackson home after
the shooting, found Jackson holding Debbies head in an attempt to stop the
bleeding. At trial, Keller was cross-examined regarding a conversation Keller had with
Jacksons sister in which he allegedly surmised that the shooting was accidental:
Q. Subsequently calling your attention to July 11th, 1998, did you tell his
sister, Karen Lubovich, that you thought that this was an accident?
A. I told . . . let me try that again . .
. I told her I was not sure.
Q. On July 11th, 1998, you told her you werent sure.
A. I dont recall the date. I remember talking to her.
Q. But my question is did you tell her you thought it was
A. I dont recall.
Jackson argues that the trial court erred in refusing to allow defense counsel
to call Lubovich for the purpose of impeaching Kellers testimony with a prior
inconsistent statement. The State responds that Lubovichs testimony would have constituted impeachment
on a collateral matter, and that this is impermissible under Indiana Evidence Rule
613(b). That Rule provides: Extrinsic evidence of a prior inconsistent statement by
a witness is not admissible unless the witness is afforded an opportunity to
explain or deny the same and the opposite party is afforded an opportunity
to interrogate the witness thereon, or the interests of justice otherwise require.
Impeachment on collateral matters was impermissible under Indiana decisional law before the adoption
of the Rules of Evidence.
See, e.g., Smith v. State, 455 N.E.2d
346, 354 (Ind. 1983). Impeachment by extrinsic evidence of a prior inconsistent
statement on a collateral matter is also barred under Rule 613(b) of the
Federal Rules of Evidence, which is identical to the Indiana Rule. See
4 Jack B. Weinstein & Margaret A. Berger, Weinsteins Federal Evidence § 613.05
(2d ed. 2000); United States v. Beauchamp, 986 F.2d 1, 3-4 (1st Cir.
1993) ([W]hen a witness testifies to a collateral matter, the examiner must take
[the] answer, i.e., the examiner may not disprove it by extrinsic evidence.) (citations
omitted). Although we have not had occasion to address impeachment on collateral
matters since the adoption of the Indiana Rules of Evidence, we see no
reason to depart from the well established common law rule that this is
barred. See 13 Robert Lowell Miller, Jr., Indiana Practice § 613.209 (2d
ed. 1995) (Rule 613 does not authorize use of extrinsic evidence of prior
inconsistent statements to impeach a witness on collateral matters.).
Assuming Kellers prior statement to Lubovich was inconsistent with his trial testimony, we
agree with the State that whether or not Keller had ever expressed the
belief that the killing was accidental was a collateral matter. It is
also irrelevant. The inconsistency is as to whether Keller made the statement
to Lubovich. Keller did not and could not properly testify on direct
as to either (1) his belief that the shooting was accidental or (2)
the underlying fact that it was an accident. Jackson would have Kellers
prior conversation admitted to establish one or both of these propositions. Whether
he made the statement is in itself wholly collateral. Kellers beliefas opposed
to any fact that Keller observed that might bear on the issueis irrelevant.
And his testimony that the shooting was accidental is equally inadmissible because
it is an expression of opinion as to intent, which is barred by
Indiana Evidence Rule 704(b). Because Keller could not properly testify as to
these propositions, impeachment on either would have been inappropriate.
See Beauchamp, 986
F.2d at 3-4 ([E]xtrinsic evidence to disprove a fact testified to by a
witness is admissible when it satisfies the Rule 403 balancing test and is
not barred by any other rule of evidence.). The trial court
did not abuse its discretion in refusing to allow Lubovichs testimony on this
IV. Sufficiency of the Evidence
Jackson admits that he killed his wife, but asserts that the evidence was
insufficient to prove that it was a knowing or intentional killing. The
standard for reviewing sufficiency of the evidence claims is well settled. We
do not reweigh the evidence or judge the credibility of the witnesses.
Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999). We will affirm
the trial court if the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt. Bunch v. State, 697 N.E.2d 1255, 1257
Murder is the knowing or intentional kill[ing] [of] another human being. Ind.
Code § 35-42-1-1 (1998). Jackson was charged with knowingly killing Debbie.
Under Indiana Code § 35-41-2-2(b), [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. To kill knowingly is to engage in conduct
with an awareness that the conduct has a high probability of resulting in
Lyttle v. State, 709 N.E.2d 1, 3 (Ind. 1999). A
knowing killing may be inferred from the use of a deadly weapon in
a manner likely to cause death. Barker v. State, 695 N.E.2d 925,
931-32 (Ind. 1998).
The morning of the shooting began with an argument between Jackson
and Debbie. Jackson testified that he might have threatened his wife, that
he was looking for the gun to scare her, and that the gun
was loaded. He also testified that he might have thrown her against
the kitchen door during the course of the argument. According to his
testimony, he took the gun, cocked it and aimed it toward the ceiling.
He then lowered the gun and it discharged while pointed at his
wifes head. The jury was free to disbelieve Jacksons testimony that the
discharge was an accident. The jury also could have concluded that Jackson
acted with an awareness of the probable consequences of his actions.
on either basis, a reasonable jury could have concluded that the evidence was
sufficient to find Jackson guilty of murder beyond a reasonable doubt.
Jackson argues that the trial court abused its discretion in failing to find
significant mitigating circumstances supported by the record and in imposing the presumptive sentence,
despite identification of two mitigating circumstances and no aggravating ones.
It is well established that sentencing decisions lie within the discretion of the
Echols v. State, 722 N.E.2d 805, 808 (Ind. 2000).
When a trial court imposes the presumptive sentence, on appeal this Court presumes
that the trial court considered the proper factors in making its sentencing determination.
Jones v. State, 698 N.E.2d 289, 291 (Ind. 1998). When a
court identifies aggravating or mitigating circumstances, however, it is obligated to include a
statement of its reasons for selecting the sentence imposed. See Ind. Code
§ 35-38-1-3 (1998); Jones, 698 N.E.2d at 291; Widener v. State, 659 N.E.2d
529, 533 (Ind. 1995) (citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind.
1986)); Townsend v. State, 498 N.E.2d 1198, 1201 (Ind. 1986). This statement
of reasons must contain three elements: (1) identification of all significant mitigating and
aggravating circumstances; (2) the specific facts and reasons that lead the court to
find the existence of each such circumstance; and (3) reflection of an evaluation
and balancing of the mitigating and aggravating circumstances in fixing the sentence.
Widener, 659 N.E.2d at 533 (citing Hammons, 493 N.E.2d at 1254); Townsend, 498
N.E.2d at 1201.
Jackson points to the following mitigating circumstances: lack of a criminal
history; employment; aid to the victim following the shooting; remorse; cooperation with authorities;
undue hardship for his family from imprisonment; and the pleas for leniency from
Jacksons immediate and extended family (including the victims father). The trial court
mentioned only the first two in its sentencing statement:
Reading the pre-sentence report you dont have any previous criminal record and you
have been employed. I certainly dont find any aggravating circumstances that is
contemplated by the statute. But murder is a serious offense.
to the statute, Ill sentence you to the Indiana Department of Corrections for
(55) fifty-five years.
The imposition of a presumptive sentence does not obligate the trial court to
provide a detailed sentencing statement.
See Jones, 698 N.E.2d at 290.
Here, however, the trial court identified two mitigating circumstances and thus was required
to state its reasons for imposing the sentence it did. This requirement
is intended to ensure that the trial court considered proper matters in determining
the sentence and facilitates meaningful appellate review of the reasonableness of the sentence.
See Hammons, 493 N.E.2d at 1254. The only review this Court
could undertake on a record like the one provided here would be purely
speculative. Because there is no basis for this Court to determine whether
the trial court properly weighed the aggravating circumstances against the mitigating circumstances, we
remand to the trial court for resentencing on this record.
We affirm the conviction for murder and remand for resentencing on this record.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Jackson also alleges that the trial court should have admonished or interrogated
the remaining jurors to determine whether the dismissal of the juror affected the
other jurors ability to serve. Jackson did not request that the trial
court do so and has waived this argument on appeal. Cf. Hackett
v. State, 716 N.E.2d 1273, 1276 (Ind. 1999) (argument regarding trial courts failure
to question or admonish remaining jurors as to impact of one juror seeing
defendant in orange jumpsuit was waived where no request for questioning or admonishment
March 3 was the wrong date. The date of the
alleged battery was August 3.
Jackson also argues that because the State had already played the
tape of Jacksons statement to Deputy Keller in which he professed his love
for Debbie before Jackson testified, the State was attempting to open the door
to the battery. However, the State cross-examined Jackson regarding the battery only
after Jackson testified at trial to his love for Debbie.
Jackson cites Horne v. State, 445 N.E.2d 976 (Ind. 1983), for the
proposition that, in order to be guilty of a knowing or intentional murder,
the State was required to prove beyond a reasonable doubt that his act
was purposeful, i.e., the product of a conscious design, intent or plan that
it be done, and . . . done with an awareness of the
probable consequences. Id. at 979. To the extent this language implies
that murder requires a higher mens rea standard than knowing as elaborated in
the more recent cases, it is not current law.
The fact that murder is a serious offense is not a
valid aggravating circumstance; it is inherently accounted for by the legislature in setting
the maximum and minimum sentences.
Jackson makes two other arguments we decline to address because of
the remand. Jackson argues that the trial court failed to find significant
mitigating circumstances that were supported by the record. On remand, the trial
court should consider the mitigating circumstances proffered by Jackson in the record and
listed here, as well as any aggravating circumstances. The contention that the
sentence is manifestly unreasonable is moot.