Attorney for Appellant
Marce Gonzalez, Jr.
Appellate Public Defender
Attorneys for Appellee
Jeffery A. Modisett
Attorney General of Indiana
Thomas D. Perkins
Deputy Attorney General
INDIANA SUPREME COURT
RYAN EUGENE GILL,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below ).
) Supreme Court No.
APPEAL FROM THE LAKE COUNTY SUPERIOR COURT
The Honorable Joan Kouros, Judge
Cause No. 45G03-9604-CF-00066
ON DIRECT APPEAL
June 30, 2000
Defendant Ryan Eugene Gill was convicted and sentenced for killing another man while
attempting to rob him of his gun. He now appeals, claiming that
the admission of improper character evidence on two separate occasions warranted a mistrial.
He also challenges the general judicial practice of jury admonishments. Finding
these claims not to have been properly preserved at trial to permit appellate
review, we affirm.
This Court has jurisdiction over this direct appeal because the sentence exceeds 50
years. Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).
The facts most favorable to the verdict indicate that on March 30, 1996,
Defendant Ryan Eugene Gill, Ronald Watkins, Terrence Lacefield and others attended a birthday
celebration at a house located in Gary, Indiana. The birthday party was
in honor of twin brothers, Donald Bowens and Ronald Bowens. Darryl Clark,
carrying a new nickel-plated handgun with a pearl handle, later arrived at the
party to purchase cocaine. While carrying out this transaction, Clark dropped his
money on the floor. As he leaned over to pick it up,
his new gun fell to the floor. Defendant, standing nearby, noticed Clarks
gun. Donald Bowens heard Defendant say, Im going to get that pistol.
Thats my pistol. Ronald Bowens also overhead Defendant announce, I got
to have it. Defendant told Watkins that he wanted Watkins to help
him steal the gun from Clark. Defendant was armed with a .357
magnum revolver and promised Watkins that he would give him the revolver if
Watkins would help with the robbery.
Later in the evening, Defendant and Clark engaged in a short conversation during
which Clark lifted up his shirt to show Defendant his gun. Defendant
reached for Clarks handgun and then a struggle ensued. At that point,
Watkins aimed the .357 magnum revolver at Clark, ordering him to stop the
altercation. Clark released his own gun, grabbed for the .357 magnum revolver,
and then Watkins and Clark began wrestling. Watkins fell over a couch and
Clark obtained control of the gun and aimed it at Watkinss head.
Watkins heard one shot, looked up, and saw Defendant pointing a gun at
Clark. Wounded from a gunshot, Clark fell on top of Watkins.
Clark then jumped up and raced to a back room in an attempt
Defendant followed Clark and started pushing on the back room door. The
door opened slightly, someone pointed Clarks handgun into the room, and fired several
shots directly at Clark. One eyewitness, Lacefield, identified Defendant as the perpetrator
who shot Clark. Shortly thereafter, Clark died from gunshot wounds to the
head and abdomen.
On July 1, 1998, a jury found Defendant guilty of Felony Murder.
On August 5, 1998, the trial court sentenced Defendant to 55 years.
Defendant now appeals his murder conviction.
We will recite additional facts as necessary.
Defendant contends that the trial court erred twice in failing to grant his
motions for a mistrial after two State witnesses, brothers Donald Bowens and Ronald
Bowens, testified as to threats made to them by Defendant prior to the
murder. He specifically argues that this evidence constituted character evidence prohibited under
Indiana Evidence Rule 404(b).
On direct-examination, the prosecutor questioned State witness Donald Bowens who offered the following
[Prosecutor:] Other than words spoken, sir, were there any sounds that you heard after
this pistol falling out at your house that drew your attention?
[Donald Bowens:] Yes.
[Prosecutor:] And what was that sound, if you know, sir?
[Defense Counsel:] Thats leading, Your Honor. Hearsay.
[The Court:] Overruled. You can answer that.
Okay, [Defendant] had slapped my brother [Ronald Bowens] and threatened him, told
him he would killed[sic] him.
(R. at 125-26) (emphasis added).
Immediately after this colloquy, defense counsel moved for a mistrial on grounds that
Defendants out-of-court statement threatening to kill Ronald Bowens constituted inadmissible hearsay.
See footnote The
trial judge immediately admonished the jury.See footnote On appeal, Defendant advances a different
argument: that the evidence was inadmissible under Ind. Evidence Rule 404(b)See footnote because Defendants
threats constituted prior uncharged bad acts. It is well-settled law in Indiana
that a defendant may not argue one ground for objection at trial and
then raise new grounds on appeal.
Willsey v. State, 698 N.E.2d 784
(Ind. 1998) (citing to Marshal v. State, 621 N.E.2d 308, 316 (Ind. 1993)).
Because Defendant did not object at trial to the admissibility of the
evidence on the basis of character evidence, he has waived this claim of
error for appellate review.
With respect to the testimony of the other State witness, the prosecutor elicited
the following information from Ronald Bowens on direct examination:
[Prosecutor]: Did you and [Defendant] talk about anything else that night?
[Ronald Bowens]: He was talking about killing me next.
[Prosecutor]: Now when was this?
[Defense Counsel]: Im going to object. May we approach?
(R. at 190) (emphasis added).
Outside the presence of the jury, the judge and lawyers discussed the matter.
Defense counsel argued that the statement constituted inadmissible evidence of prior wrongful
acts and moved for a mistrial. The trial court acknowledged the objection
and instructed the prosecutor to focus the line of questioning on the murder.
However, finding that the matter did not warrant a mistrial, the court
denied defense counsels motion. Immediately after the ruling, defense counsel affirmatively requested
that the court admonish the jury. The court granted the request and
instructed the jury to disregard the answer that this witness gave. Youre
not to consider that in any way. (R. at 192.) The
prosecutor resumed questioning and limited the inquiry in accordance with the courts instruction.
On appeal, Defendant asserts that the courts admonishment of the jury instructing them
to disregard the testimony of Ronald Bowens was insufficient to overcome the prejudice
of the improper evidence. Appellants Br. at 8. And Defendant broadly
challenges the entire judicial practice of admonishing a jury, arguing that it amounts
to a legal fiction which simply do[es] not work, and actually increases the
prejudicial results. Id. at 8, 9 (emphasis in original). To lend
support to his argument, Defendant relies upon various social science studies and law
articles that seriously question the efficacy of jury admonishments. Id. at 9.
These materials are interesting and suggest at a minimum that a court
construct and deliver jury admonishments with care and precision.
See footnote But here we
have no grounds on which to reverse. Defense counsel hi
mself requested the
admonishment. This suggests to us that he thought this measure would be
helpful rather than having a prejudicial effect on the jury. Furthermore, defense
counsel made no further objection to the witnesss statement after the courts admonishment,
and he did not raise the argument that admonishments fail to remedy the
jurys exposure to inadmissible evidence. Appellate counsel cannot now argue that this
traditional judicial practice simply does not work.
In any event, the testimony of the Bowen brothers does not warrant reversal
The denial of a mistrial lies within the sound
discretion of the trial court, and reversal is required only if the defendant
demonstrates that he was so prejudiced that he was placed in a position
of grave peril. Thompkins v. State, 699 N.E.2d 394, 398 (Ind. 1996)
(citing Campbell v. State, 622 N.E.2d 495, 501 (Ind. 1996); Bradford v. State,
453 N.E.2d 250, 252 (Ind. 1983)). The gravity of peril is measured
by the probable persuasive effect on the jurys decision. Steel v. State,
672 N.E.2d 1348, 1350 (Ind. 1996). The trial judge is in the best
position to gauge the surrounding circumstances and the potential impact on the jury
when deciding whether a mistrial is appropriate. See Thompkins, 699 N.E.2d at
398; Roche v. State, 596 N.E.2d 896, 902 (Ind. 1992).
Defendant has not shown that he was so prejudiced that he was placed
in a pos
ition of grave peril as a result of the admission of
his threats. In fact, we conclude that any claimed error in the
admission of this character evidence was harmless in that it did not affect
the substantial rights of Defendant. See Ind. Trial Rule 61; Fleener v.
State, 656 N.E.2d 1140, 1142 (Ind. 1995). The State presented the testimony
of two witnesses, which revealed Defendants desire to have the victims gun.
Another witness testified to Defendants plan to get the gun from the victim.
Finally, one witness to the crime identified Defendant as the perpetrator who
shot and killed the victim. In light of the substantial evidence establishing
Defendants guilt, admission of character evidence would not have had a probable persuasive
effect on the jurys decision. Under these circumstances, we agree with the
trial courts decision that a mistrial was not appropriate.
We affirm the trial courts judgment.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-1-1 (1993).
Out-of-court statements offered to prove the truth of the matter asserted constitute
hearsay. See Ind. Evidence Rule 801. Generally, hearsay statements are
not admissible unless the statements fall within a prescribed exception. See Ind.
Evidence Rule 802.
The trial judge stated, The jury is to disregard what the witness
has said. Its inappropriate. (R. at 127.)
Indiana Evidence Rule 404(b) provides in pertinent part: Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .
See 12 Robert Lowell Miller, Jr.,
Indiana Practice § 105.101, at 103
(2d ed. 1995), for a discussion on this point.