ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY R. DODD STEVE CARTER
Evansville, Indiana Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
NORMAN L. WEST, )
) Supreme Court Cause Number
v. ) 82S00-0008-CR-474
STATE OF INDIANA, )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable J. Douglas Knight, Judge
Cause No. 82D02-9911-CF-911
ON DIRECT APPEAL
November 16, 2001
A jury convicted Norman West of murder, and the trial court sentenced him
to sixty years imprisonment. In this direct appeal we address the following
rephrased issue: did the trial court err in denying Wests motion for mistrial.
Finding no error, we affirm.
In the early morning hours of October 28, 1999, a neighbor overheard an
argument between West and his girlfriend, Theresa Hunt. According to the neighbor,
after West threatened to kill Hunt, the argument stopped. Later that day
an Evansville police officer was called to the apartment shared by Hunt and
West and discovered Hunts body. A later autopsy revealed Hunt died as
a result of manual strangulation. West was arrested and charged with her
In due course, the case proceeded to trial by jury. At one
point in the late afternoon hours of the second day of trial, the
jury was excused while the trial court entertained arguments of counsel on an
evidentiary issue. As the jury was waiting in the jury room, one
of the jurors proceeded to examine the contents of a box stored in
the room. In so doing, the juror discovered a handgun that was
associated with an unrelated trial conducted several years earlier. The bailiff was
notified, and she immediately alerted the trial judge. After making a record
by interrogating the bailiff and allowing counsel to do the same, the trial
court reassembled the jury. The trial judge then gave the jury a
routine end of the day admonishment and further admonished the jury to refrain
from looking through any drawers, cabinets, boxes, or whatever might be there.
R. at 292. The following morning West filed a motion for mistrial,
which the trial court denied. Before doing so, the trial court inquired
of the jury:
[I]n light of the events that occurred in the Jury Room yesterday in
respect to a certain firearm, will that event or circumstance in any way
interfere with your ability to be a fair and impartial Juror in this
case and reach a verdict solely on what you see and hear in
this Courtroom as evidence?
R. at 296-97. Each juror replied that he or she would not.
R. at 297-98. The trial resumed, and ultimately West was convicted
as charged. Thereafter, the trial court sentenced him to sixty years imprisonment.
This direct appeal followed.
West contends the trial court erred in denying his motion for mistrial.
In essence he complains that because his own case involved a crime of
violence, the mere discovery of a weapon of violence in the jury room
could have affected the jurys ability to remain fair and impartial. West
cites federal authority to support his position.
Unlike the view taken in some federal circuits, see, e.g., United States v.
Keating, 147 F.3d 895, 900 (9th Cir. 1998); United States v. Gonzales, 121
F.3d 928, 944-45 (5th Cir. 1997), Indiana does not take the position that
the mere possibility that extrinsic evidence could have affected the jurys verdict is
sufficient to require a mistrial. Rather, 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). Where
the trial court is presented with the possibility that the jury has been
exposed to extraneous material having a potential to taint the jurys verdict, upon
motion by the defendant the trial court is required to interrogate and admonish
the jurors collectively and individually. Lindsey v. State, 260 Ind. 351, 295
N.E.2d 819, 823 (1973).
Here, West does not contend the trial court failed to follow the
procedure. Nor does West contend the trial courts interrogation and admonishment were
insufficient. Rather, his complaint seems to be that regardless of the jurors
response to the trial courts interrogation, they nonetheless were unable to remain fair
The decision to grant or deny a motion for 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. Mickens v. State, 742 N.E.2d 927,
929 (Ind. 2001). To prevail, the appellant must establish that he was
placed in a position of grave peril to which he should not have
been subjected. Id. The gravity of the peril is determined by
the probable persuasive effect on the jurys decision. Gill v. State, 730
N.E.2d 709, 712 (Ind. 2000). West has not demonstrated that he was
placed in a position of peril. The record shows the jury was
well aware that the handgun was completely unrelated to evidence in Wests trial.
In fact, there was no evidence that a weapon of any kind
was involved in Hunts killing. We decline Wests invitation to speculate that
the handgun found in the jury room had an impact on the jurys
verdict. The trial court correctly denied Wests motion for mistrial.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Lindsey involved a newspaper article published during trial, the Lindsey
procedure has been applied to a variety of situations where potentially improper juror
influences exist. See, e.g., Flowers v. State, 738 N.E.2d 1051, 1057-58 (Ind.
2000) (complaint that members of the jury pool may have overheard prejudicial conversation
between two discharged jurors), rehg denied; Chambers v. State, 422 N.E.2d 1198, 1204
(Ind. 1981) (jurors heard out-of-court remarks by the defendant during a recess); Gee
v. State, 271 Ind. 28, 389 N.E.2d 303, 313 (1979) (jurors conversation on
a public telephone overheard during trial recess); Bruce v. State, 268 Ind. 180,
375 N.E.2d 1042, 1066 (1978) (audience discussion overheard by jurors).