ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHARLES E. STEWART, JR. STEVE CARTER
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
JAMES A. JOVEN
Deputy Attorney General
SUPREME COURT OF INDIANA
MARSHALL RANDOLPH, )
) Supreme Court Cause Number
v. ) 45S00-0008-CR-465
STATE OF INDIANA, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard W. Maroc, Judge
Cause No. 45G01-9808-CF-156039
ON DIRECT APPEAL
September 28, 2001
A jury convicted Marshall Randolph of murder in the shooting death of Anthony
Hicks. In this direct appeal, Randolph raises two issues, which we rephrase
as: (1) did the trial court err in denying Randolphs motion for
a mistrial; and (2) was the evidence sufficient to negate Randolphs claim of
self-defense. We affirm.
The essential facts of this tragic and senseless killing are as follows.
In the evening hours of August 1, 1998, Randolph approached a group of
young men that included Hicks and inquired which one of the group had
been messing with his sister. R. at 269, 368. The record
shows that earlier in the day Marcus Holloway, a member of the group,
allegedly made an untoward remark directed at Randolphs sister. After an exchange
of words between Holloway and Randolph, the matter seemed to have been closed
when Randolph said, You dont mess with my sister and my sister wont
mess with you. R. at 270. However, Randolph continued his belligerence
exclaiming, Next time I come out here. It is not going to
be talking. R. at 270. At that point Hicks intervened and
asked why Randolph had come into his neighborhood starting trouble and that no
one had bothered Randolphs sister. The two then exchanged words, and Randolph
produced a handgun pointing it at Hicks. When Hicks raised his hands
saying, Do what you got to do, Randolph fired three times. R.
at 372. Hicks died as a result of a gunshot wound to
the chest. Randolph was eventually arrested and charged with murder. After
a jury trial he was convicted as charged, and the trial court sentenced
him to fifty-two years imprisonment. This direct appeal followed.
Randolph contends the trial court erred in denying his motion for a mistrial.
The facts are these. In its case in chief, the State
called to the stand investigating officer Danny Sorbello. The officer testified that
during the course of his investigation he obtained the name of Randolph as
a potential suspect in the shooting of Hicks. The following exchange then
Q. Did there come a point when you went looking for the suspect
that you had, Marshall Randolph?
A. After myself and Sergeant Gault got the name of the possible suspect, we
then went to our B of I and we looked this individual up
to see if we can get a picture of him so that we
would know who we would be looking for and we werent able to
get a picture - -
R. at 221-22. At that point defense counsel objected, asked to approach
the bench, and outside the presence of the jury moved for a mistrial.
The trial court denied the motion but agreed to give any kind
of admonition you like or none if youd like that. R. at
228. Counsel declined the offer of an admonishment saying it would likely rather
hurt than help. R. at 228-29. In this appeal, Randolph contends
the trial court committed reversible error in denying the mistrial motion.
A mistrial is an extreme remedy that is warranted only when less severe
remedies will not satisfactorily correct the error. Warren v. State, 725 N.E.2d
828, 833 (Ind. 2000). A timely and accurate admonition is presumed to
cure any error in the admission of evidence. Heavrin v. State, 675
N.E.2d 1075, 1084 (Ind. 1996) (quotation omitted). However, refusal of an offer
to admonish the jury constitutes a waiver of any error in the denial
of the motion. Boyd v. State, 430 N.E.2d 1146, 1149 (Ind. 1982);
Hicks v. State, 272 Ind. 350, 397 N.E.2d 973, 975 (1979); see also
Walker v. State, 497 N.E.2d 543, 544 (Ind. 1986) (finding trial court did
not abuse its discretion in denying motion for mistrial where defendant declined trial
courts request to admonish the jury). Because Randolph refused the trial courts
offer to admonish the jury, the issue is waived for review.
Waiver notwithstanding, Randolph cannot prevail on the merits of his claim. The
decision to grant or deny a motion for a mistrial lies within the
discretion of the trial court. Ortiz v. State, 741 N.E.2d 1203, 1205
(Ind. 2001). The trial courts determination will be reversed only where an
abuse of discretion can be established. Wright v. State, 593 N.E.2d 1192,
1196 (Ind. 1992). To prevail, the appellant must establish that he was
placed in a position of grave peril to which he should not have
been subjected. Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001).
Use of the term mug shot is generally prohibited because it may be
indicative of prior criminal history. Coleman v. State, 490 N.E.2d 325, 328
(Ind. 1986); Vanzandt v. State, 731 N.E.2d 450, 454 (Ind. Ct. App. 2000),
trans. denied. In this case the record is clear that the officer
did not use the term mug shot, and in his brief to this
Court Randolph makes no such claim. Rather, he contends that the effect
of the officers testimony was to suggest to the jury that the defendant
has a prior criminal record. Br. of Appellant at 6. We
disagree. Instead, the record supports just the opposite. The officer testified
that although he looked, he was unable to find Randolphs picture at the
B of I. R. at 222. Assuming, as counsel argued at
trial, that the jury was aware the acronym stood for Bureau of Investigation,
it is more likely than not the jury concluded Randolph had no criminal
record. Randolph has not shown that he was placed in a position
of grave peril necessitating a mistrial. We thus find no error on
Randolph next contends the State failed to negate his claim of self-defense.
Pointing to his own testimony in support, Randolph alleges he only produced his
handgun after he saw Hicks draw what he believed was a gun.
A valid claim of self-defense is legal justification for an otherwise criminal act.
Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). When a
defendant raises the claim of self-defense, he is required to show: (1)
he was in a place where he had a right to be; (2)
he acted without fault; and (3) he had a reasonable fear of death
or great bodily harm. Id. The issue on appellate review is
typically whether the State presented sufficient evidence to support a finding that at
least one of the elements of the defendants self-defense claim was negated.
Id. The standard of review for a challenge to the sufficiency of
the evidence to rebut a claim of self-defense is the same as the
standard for any sufficiency of the evidence claim. Id. We neither
reweigh the evidence nor judge the credibility of witnesses. Id. If
there is sufficient evidence of probative value to support the conclusion of the
trier of fact, then the verdict will not be disturbed. Id.
One of the States key witnesses, Marcus Holloway, testified that Hicks raised his
hands when Randolph pointed his weapon. R. at 372. In turn,
the only evidence supporting a claim of self-defense was Randolphs own testimony.
Further, firing multiple shots undercuts a claim of self-defense. Mayes v. State,
744 N.E.2d 390, 395 n.2 (Ind. 2001). Three eyewitnesses testified that Randolph
fired multiple shots at Hicks. R. at 174-75, 273, 373. The jury
was free to disbelieve Randolphs self-serving testimony, which it apparently did.
We affirm the judgment of the trial court.
SHEPARD, C.J., and SULLIVAN, J., concur.
DICKSON, J., and BOEHM, J., concur as to Part II and concur in
result as to Part I believing that refusal to accept an admonition waives
the issue only if the admonition would cure the problem.