ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIC. K. KOSELKE Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
KENNETH D. ALVIES, )
vs. ) No. 33A04-0209-CR-441
STATE OF INDIANA, )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable David W. Whitton, Judge
Cause No. 33C01-0108-CF-20
September 11, 2003
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Kenneth D. Alvies appeals two Murder convictions following a jury trial and presents
the following issues for our review:
1. Whether the trial court abused its discretion when it denied Alvies motion to
remove three jurors and replace them with alternate jurors.
2. Whether the trial court abused its discretion when it allowed testimony regarding a
witness who was beaten by inmates in jail soon after he made deposition
statements against Alvies.
3. Whether the trial court abused its discretion when it refused one of Alvies
tendered jury instructions concerning impeachment.
4. Whether the trial court abused its discretion when it denied Alvies motion for
FACTS AND PROCEDURAL HISTORY
In the spring of 2000, Alvies lived with his girlfriend, Josie Muscar, and
her two sisters, Julia Wilder and Hazel Conley, on South 6th Street in
New Castle. James Davis, who sold drugs, lived down the street from
Alvies. In late May 2000, Alvies gave Muscar some cocaine to give
to Davis, which Muscar later delivered to Davis at a local bar.
On April 4, 2000, Wilder planned to pick up Conley from school around
2:00 p.m. Before she left, the telephone rang, and Wilder answered it.
Wilder recognized the voice of the person calling as Davis and handed
the phone to Alvies. Wilder heard Alvies tell Davis that he would
be right there. Before Alvies left the house, Wilder saw him standing
in Conleys bedroom and also observed a small gun on the bed.
Alvies and Wilder left the house at the same time, and Alvies returned
fifteen to twenty minutes later.
Also on April 4, Michelle Morgan, who regularly purchased drugs from Davis, arrived
at Davis home to buy oxycontin. Morgan entered the house and saw
Davis sitting on the floor with saliva coming out of his mouth.
She then saw a second man, later identified as Donnie Nicholson, lying face
down in the bathroom. Morgan believed that the men were suffering from
drug overdoses, and she left to get help. She saw a neighbor,
Matt Schetgen, and asked him to call 911. She then went home
to tell her husband, and the two returned to Davis home. When
Morgan discovered that no one had called 911, she made the call.
New Castle Police Officer Brad Brown was the first officer at the scene.
When Officer Brown arrived, he saw Morgan sitting next to Davis and
noticed blood in Davis hair. Morgan told Officer Brown about the man
in the bathroom, and the officer determined that Nicholson was warm but had
no pulse. Officer Brown discovered blood on Nicholsons chest, two holes in
his sweatshirt, and an injury to his head. Both Davis and Nicholson
died of gunshot wounds. Davis was shot in the head, and Nicholson
suffered three gunshot wounds, two to the body and one to the head.
As police and emergency vehicles began to arrive at Davis home, Conley and
others gathered on the porch to watch the events down the street.
Alvies, however, did not go out onto the porch. At some point
that afternoon, Alvies asked for a ride to Muncie. When no one
in the house would give him a ride, Alvies contacted a friend who
agreed to take him. Before he left for Muncie, Alvies asked Muscar
for gray duct tape. Muscar, who was pregnant at the time and
upset with Alvies because he was not going to take her to the
doctor, asked Alvies why he was leaving, and Alvies stated to Muscar that
he did it and if she told anyone, he would kill her.
Later in the day on April 4, Indiana State Police Trooper David Cashdollar
arrived at Davis home to collect evidence. He recovered a .25 caliber
automatic pistol from a recliner in the front room where Davis was found,
but that gun was inoperable. Trooper Cashdollar found spent shell casings in
the front room, on top of the washing machine in the utility room,
and in the pocket of a shirt hanging in the utility room.
Thereafter, a paramedic who had been at the scene working on Nicholson found
a spent shell casing in his medical bag. According to the paramedic,
the shell casing must have fallen inside his bag as he lifted Nicholsons
body off the floor.
On the night of April 4, Conley found a brown holster under her
mattress in her bedroom. She contacted police, and officers later retrieved the
holster. Subsequently, by examining the caller identification box at Davis home, police
learned of Davis telephone call to Alvies home at 1:38 p.m. on April
4. On April 14, 2000, the State charged Alvies with two counts
While Alvies was in jail awaiting trial, he told two inmates, Brian Pfenninger
and Matthew Dishman, that he had committed the murders. Specifically, he told
Dishman that he went to Davis house that day to collect money for
cocaine that Davis was supposed to have sold for Alvies. Alvies told
Dishman that Davis claimed that he did not have the money to pay
him, and that Muscar had not given him all the cocaine that was
supposed to have been delivered. He further told Dishman that he shot
Davis in the head and, as he looked around the house for money,
he saw Nicholson looking out of the bathroom. Alvies then shot Nicholson
three times, twice in the chest and once in the head. Alvies
told Pfenninger a similar version of events. He also told Pfenninger, however,
that he was going to kill Muscar and her family and that she
was too scared to testify against him.
On June 23, 2001, Shirley Dudley was performing some maintenance and gardening work
at Davis former residence. While digging in an area near the back
stairs, Dudley found a small automatic pistol wrapped in gray duct tape.
As a result of exposure to the elements, the gun was inoperable.
Indiana State Police Sergeant Mark Keisler repaired the gun and compared it with
the spent casings found in Davis home and the bullets recovered from the
two victims bodies. Sergeant Keisler determined that the bullets were all fired
from the same weapon and could have been fired from either the buried
gun or the gun officers had found inside Davis home. However, he
determined that the spent casings had all been fired from the gun buried
behind Davis home.
Alvies trial began on June 17, 2002. Prior to trial, each of
the potential jurors received a jury questionnaire that identified all potential witnesses and
the two victims in the case. Jurors were asked to indicate on
the questionnaire if they knew any of the witnesses or either of the
victims. After the jury had been selected, including three alternate jurors, but
before the court had administered the oath, Joyce Jester, one of the jurors,
informed the court that her father-in-law was a second cousin to one of
the victims in the case. Alvies moved to have Jester removed and
replaced with an alternate juror, and the court denied his request.
After the State presented its first witness, two other jurors informed the court
that they knew witnesses. In particular, Riggie Calciano stated that during opening
statements he realized that he knew Brad Brown, a former officer with the
New Castle Police Department, through work. And Beverly Carr advised the court
that she knew Dudley Griffey, the coroner, because he had laid carpet in
her home. After counsel asked questions of each juror, Alvies again moved
to have both jurors removed and replaced with alternates. The court denied
Matthew Dishman testified at trial that Alvies had told him that he committed
the murders. On cross-examination, Alvies counsel asked Dishman about his general reputation
for truthfulness in the community. He also asked whether anything went on
in jail that would have caused him to forget things or have memory
problems. Dishman responded, No. On re-direct examination, Dishman testified that he
was deposed while incarcerated and that he gave testimony similar to that of
his trial testimony that day. Over Alvies objection, he further stated that,
within thirteen hours of giving that deposition, he was beaten in his cell
by other inmates.
Also during trial, Alvies filed a motion in limine regarding alleged prior threats
he had made to Muscar. The State claimed that on February 14,
2000, Alvies pointed a gun at Muscar and, as a result, when, on
the day of the murders, he threatened to kill her if she told
anyone about the murders, she took that threat seriously. The court issued
an order prohibiting the State from addressing any incidence of prior threats by
Alvies against Muscar. Subsequently, during direct examination of Muscar, Muscar mentioned that
Alvies had pointed at her. Alvies objected and moved for a mistrial.
The court denied the motion and immediately admonished the jury to disregard
After the State rested, Alvies tendered final instructions to the court, including Accuseds
Tendered Final Instruction #5, regarding impeachment of witnesses by evidence of general reputation
in the community. The court refused Alvies proposed instruction and gave other
instructions regarding witness credibility.
The jury found Alvies guilty of both counts of murder, and the trial
court entered judgment of conviction and sentenced him to two consecutive terms of
fifty-nine years. This appeal ensued.
DISCUSSION AND DECISION
Issue One: Juror Misconduct
Alvies first asserts that the trial court abused its discretion when
it denied his motion to remove jurors Jester, Calciano and Carr for cause.
In particular, he claims that because of their relationships with the victim
and States witnesses, each juror had an implied bias against the defense and
that, had the jurors revealed their relationships on the jury questionnaire or during
voir dire, Alvies would have struck them from the jury pool. He
further claims that the court should have replaced all three jurors with the
available alternate jurors and that he is entitled to a new trial.
The United States Supreme Court articulated a particularized test for determining whether a
new trial is required due to juror deceit during voir dire or on
jury questionnaires in McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984).
State v. Dye, 784 N.E.2d 469, 472 (Ind. 2003), cert. denied.
To obtain a new trial, the defendant must first demonstrate that a juror
failed to answer honestly a material question . . . and then further
show that a correct response would have provided a valid basis for a
challenge for cause. Id. (quoting McDonough, 464 U.S. at 556). That
two-part test applies equally to deliberate concealment and to innocent nondisclosure or honest
mistakes. Id. Moreover, although McDonough was a civil action, the test
has been applied in criminal matters. Id.
Indiana Code Section 35-37-1-5 governs challenges for cause and provides in relevant part:
(a) The following are good causes for challenge to any person called as a
juror in any criminal trial:
* * *
(4) That the person is related within the fifth degree to the person
alleged to be the victim of the offense charged, to the person on
whose complaint the prosecution was instituted, or to the defendant.
* * *
(11) That the person is biased or prejudiced for or against the defendant.
Generally, proof that a juror was biased against the defendant or lied on
voir dire entitles the defendant to a new trial. Lopez v. State,
527 N.E.2d 1119, 1130 (Ind. 1988). A jurors bias may be actual
or implied. Joyner v. State, 736 N.E.2d 232, 238 (Ind. 2000).
Implied bias is attributed to a juror upon a finding of a certain
relationship between the juror and a person connected to the case, regardless of
actual partiality. Id.; Lee v. State, 735 N.E.2d 1112, 1115 (Ind. 2000).
Stated differently, a jurors relationship with one of the parties may raise
a presumption of implied bias. Woolston v. State, 453 N.E.2d 965, 967
(Ind. 1983). Where an inference of implied bias arises, a trial court
should analyze such potential bias by considering the nature of the connection and
any indications of partiality. Lee, 735 N.E.2d at 1115. The court
must weigh the nature and extent of the relationship versus the ability of
the juror to remain impartial. Id. (citation omitted).
The decision whether to replace a juror with an alternate is within the
discretion of the trial court. Woolston, 453 N.E.2d at 968. It
is for the trial court to determine whether the juror is biased for
or against the defendant. Id. Only if the defendant was placed
in substantial peril will we find an abuse of discretion. Id.
A. Juror Jester
Alvies contends that Jester should have been removed and replaced with an alternate
juror because her father-in-law is a second cousin of one of the victims.
In response, the State directs us to subsection (a)(4) of the statute
concerning relatives within the fifth degree of the defendant or victim. We
agree with the State that Alvies cannot establish that Jester is related to
the victim within the fifth degree and, thus, is not entitled to have
her removed for cause under that section. See Whicker v. State, 511
N.E.2d 1062, 1064-65 (Ind. 1987) (holding juror who was aunt of defendants mothers
nephews wife was not related within fifth degree and, thus, should not have
been removed for cause under Ind. Code § 35-37-1-5(a)(4)). As Alvies points
out, however, the basis of his objection to her remaining on the jury
is under subsection (a)(11). Thus, we must analyze whether the court abused
its discretion when it refused to remove Jester as a result of Alvies
claim of implied bias.
As we have stated, after the jury was selected
but before the court administered the oath, Jester informed court staff that she
had learned of a relationship to one of the victims. As a
result, the trial court held a hearing with the attorneys and Jester outside
the presence of the other jurors. During that hearing, the following colloquy
JESTER: Okay. It was brought to my attention last evening that one of
the victims was a cousin to my father-in-law.
* * *
And I dont know the name. My mother-in-law just called asking if
I was selected or not and happened to read that case in the
paper, and I said dont say anything else, I believe its the same
case. But, I did not know the individual. I just moved
to Henry County about two-and-a-half years ago. Never met the individual. Didnt
know anything about him, so
COURT: And leading up to the case in the last 30 days
. . . youve known you were a potential juror.
COURT: And the last, maybe two or three weeks, even specifically about the case.
COURT: And nothing came up during that period?
JESTER: I did not show the list of names to my husband or to
my in-laws or anything. So, I didnt realize that there was a
COURT: Now, with the information given to you, has that caused you to form
or express any opinion as to the guilt or innocence of Mr. Alvies?
JESTER: No, it has not.
COURT: And its your father-in-laws cousin.
JESTER: Correct. And I believe its a second cousin to my father-in-law.
COURT: Second. You dont know exactly where he fits down the line.
JESTER: Not exactly. I just know cousin.
Thereafter, both the State and Alvies counsel asked Jester questions exploring the nature
of the relationship. In particular, the State asked Jester whether she knew
which victim was her father-in-laws cousin, and she replied, no. Jester further
clarified that her mother-in-law had left a message on her answering machine asking
whether she had been selected to serve as a juror in the case
and stating that her father-in-law was a cousin to one of the victims.
Jester called her mother-in-law back and told her not to say anything
else because she had been selected. Jester assured the trial court that
regardless of what she had learned the evening prior, she would be able
to listen to the evidence and jury instructions and base her decision solely
on the evidence and testimony.
B. Jurors Calciano and Carr
As Alvies counsel asked Jester questions, she explained that she had been married
for two years and had lived in Henry County for approximately two and
one-half years. Her only family in Henry County consists of her husband
and in-laws. She stated that she did not know the victim and
that while she had attended family reunions, she did not have reunions with
that side of the family. Thereafter, Alvies moved to have Jester removed
and claimed that he could not receive a fair trial with her on
the jury. The trial court denied Alvies motion, explaining in relevant part,
Well, I would determine that the juror provides me with no reason to
believe she would be challenged for cause, and you may or may not
have exercised a peremptory [strike].
By asking its own questions and also allowing counsel to ask Jester questions,
the trial court in this case properly analyzed the potential bias and considered
the nature of Jesters connection to the victim and any indications of partiality.
See Lee, 735 N.E.2d at 1115. Jesters responses indicated that she
had not formed an opinion regarding Alvies guilt or innocence and would base
her decision solely on the testimony. In addition, her testimony regarding her
father-in-laws side of the family showed that any connections she had with the
victim were attenuated. Based on her testimony as a whole, it was
reasonable for the trial court to conclude that she was not biased or
prejudiced against Alvies. Thus, we cannot conclude that the court abused its
discretion when it denied Alvies motion to remove Jester.
Still, Alvies claims that this case is like Barnes v. State, 263 Ind.
320, 330 N.E.2d 743 (1975). In Barnes, a juror was asked during
voir dire whether he had any friends or relatives on the prosecutions staff,
and the juror replied no. 330 N.E.2d at 746. In fact,
however, the juror was married to a second cousin of a member of
the prosecutions staff who was involved in the trial. Id. Although
the relationship between the juror and his wifes second cousin was tenuous, our
supreme court concluded that the possibility of bias existed. Id. at 747.
Accordingly, the court remanded the case to the trial court for an
evidentiary hearing and determination of whether the juror was aware of the relationship
during voir dire, or if he became aware of the relationship at any
time prior to the verdict. Id. The court went on to
state that, if the juror was aware during voir dire or had become
aware before the verdict, grounds for challenge for cause will have been shown
to have existed, and a new trial must be ordered. Id.
Alvies asserts that under Barnes, he is entitled to a new trial.
We disagree. The logical inferences to be drawn from the decision in
Barnes are: (1) if the juror in that case had known about
the relationship during voir dire and nevertheless stated that he had no such
relationships, he lied under oath; and (2) if the juror had become aware
of the relationship during trial but before the verdict and had failed to
inform the court, he intentionally concealed his relationship. Under either scenario, whether
the juror lied about the relationship or concealed his knowledge of it, it
would be reasonable to conclude that the juror was biased against the defendant,
and a new trial would be warranted.
Barnes is distinguishable from this case. There is no issue here concerning
Jesters knowledge of or candor about her relationship to one of the victims.
Rather, the undisputed testimony shows that she was unaware of the relationship
until the evening after jury selection and, once she learned of the relationship,
she immediately notified the court the following morning. In addition, Jesters statements
indicate that her knowledge of her relationship via marriage to a victim would
not affect her ability to be impartial. Contrary to Alvies contention, the
mere fact that Jester is distantly related to a victim does not necessarily
entitle him to a new trial. Not only is Alvies interpretation of
Barnes erroneous, but his reliance on that case is misplaced.
Next, Alvies claims that the trial court abused its discretion when it refused
to remove Calciano and Carr from the jury and replace them with alternates.
Again, we must disagree.
Following the States first witness, New Castle Police Officer David Carnes, both Calciano
and Carr notified court staff of their familiarity with two different States witnesses.
The trial court conducted a hearing with Calciano and Carr separately and
outside the presence of the other jurors. Calciano reported that he knew
Brad Brown, a former police officer in New Castle, through work. Calciano
explained that he and Brown work at Swackhamer Masonry and Concrete and that,
while they serve on different crews, he has seen Brown once in a
while in the mornings. Calciano stated that he had neither discussed the
case with Brown nor formed an opinion regarding Alvies guilt or innocence.
He further stated that he did not circle Browns name on the jury
questionnaire because [t]heres more than one Brad Brown.
Carr informed the court that during opening statements, she realized that she knew
Dudley Guffey, the Henry County Coroner. She explained that Dudley had installed
carpeting in her home and that she knew him well enough to say
hi to him. She stated that she had never discussed the case
with Dudley and that she did not circle his name on the jury
questionnaire because Dudley Guffey could be anybody for all she knew.
Alvies moved to remove both Calciano and Carr because of their relationships with
the two witnesses, and the court denied both motions. Regarding Calciano, the
court determined that Browns testimony would involve only what he saw when he
arrived at the scene of the crimes. The court further determined that
Calciano had only a casual working relationship with Brown and had not discussed
the case. Similarly, regarding Carr, the court concluded she had no knowledge
of Dudley in his capacity as Coroner; rather, her only knowledge of him
was through his installation of carpet in her home. The court also
thanked the jurors for disclosing their knowledge of witnesses because that was exactly
what weve asked them to do, indicate that they need to make the
decision based on the evidence[,] not on any other relationships.
Our supreme court has addressed claims of alleged bias in cases involving casual
working relationships between a juror and a witness. In McCants v. State,
686 N.E.2d 1281, 1285 (Ind. 1997), the court held that the trial court
properly denied the defendants motion for mistrial where one of the jurors worked
at the same university as one of the States witnesses. And in
Creek v. State, 523 N.E.2d 425, 427 (Ind. 1988), the court held that
the decision to deny the defendants motion for mistrial was also proper where
a juror and a States witness worked at the same place, knew one
another by last name, and had no conversations about the case. Specifically,
the court in Creek, stated in relevant part:
The fact that [the juror and the witness] did not really know each
other but only had casual contact because of their employment and the fact
that they had no conversation [whatsoever] concerning the merits of the case was
ample reason for the judge to exercise his discretion and deny the motion
Id. (citation omitted). Here, Calcianos testimony revealed that, like the jurors and
witnesses in McCants and Creek, he and Brown had only a casual working
relationship. Additionally, Calciano and Brown had had no discussions about Alvies case.
Thus, we hold that the trial court did not abuse its discretion
when it denied Alvies motion to remove Calciano and replace him with an
Issue Two: Inmate Testimony
Regarding Carr, in Woolston, 453 N.E.2d at 968, the court held that the
trial court did not abuse its discretion in refusing the defendants request to
remove a juror because of his mere familiarity with a witness. In
that case, one of the jurors informed the court that an expert witness,
who had testified regarding the defendants insanity defense, had treated the jurors father
and that he had little respect for the doctor. Id. Still,
the juror stated that he would try to treat the doctors testimony the
same as that given by any other witness. Id. Because the
trial court determined that the juror could be fair and impartial, and there
was evidence in the record to support that determination, the court found no
abuse of discretion. Id.
Here, Carr told the trial court that she knew Dudley because he had
installed carpet in her home and that she knew him well enough to
say hi if she saw him. However, following Woolston, that Carr is
familiar with Dudley does not necessarily mean that she is biased against Alvies.
Indeed, unlike Carr, the juror in Woolston affirmatively stated that he did
not respect the witness but, nevertheless, indicated that he would be fair and
impartial. Carr gave no indication that she had any opinion of Dudley
in his capacity as Coroner and, instead, made it clear that her knowledge
of Dudley would not affect her ability to serve as a juror.
Again, we must conclude that the court did not abuse its discretion when
it denied Alvies motion to remove Carr.
Still, in his reply brief, Alvies focuses on what he contends amounts to
the cumulative prejudice of the relationship of jurors Jester, Carr and Calciano.
In support, he directs us to Dye, 784 N.E.2d at 476-77, in which
our supreme court reviewed the decision of a post-conviction court, which reversed a
defendants convictions because of a jurors misconduct. In that case, a sole
juror concealed her and her familys criminal histories, her history as a crime
victim, and her disposition to impose the death penalty. Id. at 471.
The post-conviction court viewed the defendants three individual claims of juror misconduct
cumulatively, determined that [t]he combination of these omissions and false statements cannot be
ignored, and concluded that the jurors actions amounted to gross misconduct. Id.
at 476. Because the same trial judge presided over the original trial
and post-conviction hearing, our supreme court gave substantial deference to the post-conviction courts
exceptional position to assess not only the weight of the evidence, but also
the probable impact of the alleged juror misconduct, including whether it deprived the
defendant of a fair trial, id., and affirmed the post-conviction courts decision.
Alvies claims that, under Dye, the trial court should have viewed the alleged
juror bias cumulatively. He also points out that one-fourth of his jury
had some relationship to either a victim or a States witness. But
again, unlike in Dye, all three jurors in this case revealed their relationships
to the trial court in a timely manner, and Alvies had an opportunity
to question each juror regarding any alleged bias as a result of those
relationships. Even when viewed cumulatively, there is nothing in the record which
supports Alvies claim of implied bias. It is not uncommon for jurors
in small communities to be familiar with persons involved in the case.
If trial courts were required to imply bias from any type of connection
or relationship between a juror and a person involved with the case, and
remove those jurors, it would be nearly impossible to seat a jury.
In this case, when the jurors informed the trial court of relationships of
potential concern, the trial court properly held a hearing with each individual juror,
outside the presence of the other jurors, and explored the nature of each
relationship. See Lee, 735 N.E.2d at 1115 (stating court must weigh the
nature and extent of the relationship versus the ability of the juror to
remain impartial.). The record supports the trial courts decisions to deny Alvies
motions to remove jurors Jester, Calciano and Carr. Therefore, we find no
abuse of discretion.
Next, Alvies asserts that the trial court abused its
discretion when it permitted Dishman, an inmate to whom Alvies told details of
the two murders, to testify that he was beaten in jail hours after
he gave deposition testimony against Alvies. He claims that when the State
elicited that testimony from Dishman, it constituted an evidentiary harpoon and requires reversal
of his convictions. The State responds that Alvies opened the door to
Dishmans testimony. We agree with the State.
The trial court has inherent discretionary power on the admission of evidence, and
its decisions are reviewed only for an abuse of that discretion. Jones
v. State, 780 N.E.2d 373, 376 (Ind. 2002). An abuse of discretion
occurs when a decision is clearly against the logic and effect of the
facts and circumstances before the court. Prewitt v. State, 761 N.E.2d 862,
869 (Ind. Ct. App. 2002).
An evidentiary harpoon occurs when the prosecution places inadmissible evidence before the jury
for the deliberate purpose of prejudicing the jurors against the defendant. Evans
v. State, 643 N.E.2d 877, 879 (Ind. 1994). To prevail on such
a claim, the defendant must show that (1) the prosecution acted deliberately to
prejudice the jury, and (2) the evidence was inadmissible. Id.
The dispositive question here is whether Alvies has shown that Dishmans testimony regarding
the beating he suffered was inadmissible. Otherwise inadmissible evidence may become admissible
where the defendant opens the door to questioning on that evidence. Kubsch
v. State, 784 N.E.2d 905, 919 n.6 (Ind. 2003); Wales v. State, 774
N.E.2d 116, 117 (Ind. Ct. App. 2002), trans. denied. On direct examination,
Dishman testified in detail about statements Alvies had made implicating himself in the
two murders. On cross-examination, Alvies counsel asked Dishman about his motivations for
giving statements against Alvies and about his criminal history, which included crimes of
dishonesty. He also asked Dishman whether he had told any inmates in
the Henry County Jail that he had fabricated the story about Alvies.
The final question on cross-examination provided: Was there anything that went on
with you in that jail that would cause you to have forgotten or
cause you to have memory problems? Dishman replied, no.
Thereafter, on re-direct examination, the State referred to defense counsels question regarding whether
anything had happened to him in jail that may have affected his memory
and immediately asked Dishman to tell the jury what happened to him at
the jail less than thirteen hours after he gave deposition testimony. Alvies
counsel objected on several bases, including that the question was an evidentiary harpoon,
and the court overruled his objection. Dishman then stated that his cellmates
beat him when he was asleep on his bunk.
We agree with the State that Alvies opened the door to the questioning
about the beating Dishman suffered in his cell when counsel asked whether anything
went on in the jail which would have caused him memory problems.
Accordingly, we find no abuse of discretion in the trial courts decision to
admit Dishmans testimony. Regardless of whether the prosecutor acted deliberately to prejudice
the jury, Alvies has not shown that the evidence of which he complains
was inadmissible. Thus, he cannot succeed on his evidentiary harpoon
Issue Three: Jury Instructions
Alvies also contends that the trial court erred when it refused one of
his proposed jury instructions regarding witness credibility and impeachment, which provides:
ACCUSEDS TENDERED FINAL INSTRUCTION #5
A witness may also be discredited or impeached by evidence that the general
reputation of the witness for truth and veracity is bad in the community
where the witness now resides, or has recently resided. If you believe
that any witness has been so impeached, then it is your duty to
give the testimony of that witness such credibility or weight, if any, as
you may think it deserves.
Alvies proposed his Final Instruction #5 as a result of Dishmans testimony on
cross-examination that he did not have a reputation in the community for being
Jury instruction is a matter within the trial courts sound discretion, and we
review its decision thereon only for an abuse of that discretion. Cline
v. State, 726 N.E.2d 1249, 1256 (Ind. 2000). When the trial court
refuses a tendered instruction, we must consider: (1) whether the instruction correctly
states the law; (2) whether there was evidence in the record to support
the giving of the instruction; and (3) whether the substance of the instruction
is covered by other instructions given. Corbett v. State, 764 N.E.2d 622,
629 (Ind. 2002).
The State concedes that Alvies proposed instruction is a correct statement of the
law and that there is evidence in the record to support the giving
of the instruction. But the State asserts that the substance of the
proposed instruction was adequately covered by other instructions given on witness credibility.
In support, the State directs us to Chambers v. State, 734 N.E.2d 578
(Ind. 2000). In that case, the trial court decided not to give
an instruction concerning the jurys ability to reject uncorroborated testimony of witnesses whose
credibility had been impeached by prior inconsistent statements.
See footnote As in this case,
the dispositive issue in
Chambers was whether the substance of the tendered instruction
was covered by other instructions given and whether the instructions as a whole
were adequate. Id. at 581. The court determined that the preliminary
and final instructions given regarding the credibility of witnesses covered the substance of
the tendered instruction. In particular, the court stated:
Although [the instruction given] did not do so in the explicit terms of
the proposed instruction, the foregoing instruction told the jury that it was the
exclusive judge of witness credibility, and could disregard the testimony of a witness
if it had reason to do so. This is sufficient discussion of
the subject. It is certainly within the jurys knowledge, experience, and common
sense to choose to believe or disbelieve a witness who gave inconsistent statements
and who may have therefore testified untruthfully. Common experience, shared by us
all, includes listening to a stranger and concluding that nothing he or she
has to say is believable. The trial court must use some judgment
in determining the length, detail, and complexity of instructions. The trial court
did not abuse its discretion by refusing to dwell on the point raised
by the proposed instruction.
Issue Four: Mistrial
Here, the trial court gave multiple instructions to the jury regarding witness credibility.
Indeed, the Courts Final Instruction #12 is nearly identical to the instruction
given in Chambers and advises the jurors that they are the exclusive judges
of the evidence, the credibility of the witnesses and of the weight to
be given to the testimony of each of them. That same instruction
informed the jurors that [i]n weighing the testimony to determine what or whom
you will believe, you should use your own knowledge, experience and common sense
gained from day to day living. In addition, the Courts Final Instruction
#13 instructed the jurors that [t]he credibility of a witness may be attacked
by introducing evidence that on some former occasion the witness made a statement
inconsistent with his or her testimony in this case. And the Courts
Final Instruction #13A informed the jury that the fact that a witness has
previously been convicted of a crime involving dishonesty may also be considered in
judging witness credibility.
We conclude that Alvies tendered instruction, which focused on impeachment of a witness
as a result of a witnesss reputation in the community, was covered by
the other instructions regarding witness credibility. Like in Chambers, the jury was
given substantial instruction on its role in weighing witness credibility, and the jurors
were informed that they could use their common sense in weighing credibility.
As Instruction No. 12 provides, it was within the jurys knowledge, experience and
common sense to choose to disbelieve Dishman based on his testimony about his
criminal convictions for crimes of dishonesty and admission that he had a reputation
in the community for being dishonest. The trial court in this case
used proper judgment in determining the length, detail, and complexity of instruction and
did not abuse its discretion when it refused to dwell on the point
raised by Alvies tendered instruction. Chambers, 734 N.E.2d at 581.
Finally, Alvies contends that the trial court abused its discretion when it denied
his motion for mistrial. In particular, he asserts that the State intentionally
asked Muscar on direct examination to testify about a prior incident during which
Alvies pointed a gun at her in violation of the trial courts in
limine order. He further claims that, even though the court struck Muscars
testimony and admonished the jury, the testimony placed him in grave peril.
Whether to grant or deny a motion for mistrial is a decision left
to the sound discretion of the trial court. Lehman v. State, 777
N.E.2d 69, 72 (Ind. Ct. App. 2002). We will reverse the trial
courts ruling only upon an abuse of that discretion. Id. We
afford the trial court such deference on appeal because the trial court is
in the best position to evaluate the relevant circumstances of an event and
its impact on the jury. Id. To prevail on appeal from
the denial of a motion for mistrial, the appellant must demonstrate the statement
or conduct in question was so prejudicial and inflammatory that he was placed
in a position of grave peril to which he should not have been
subjected. Id. We determine the gravity of the peril based upon
the probable persuasive effect of the misconduct on the jurys decision rather than
upon the degree of impropriety of the conduct. Id.
A mistrial is an extreme sanction warranted only when no other cure can
be expected to rectify the situation. Id. Reversible error is seldom
found when the trial court has admonished the jury to disregard a statement
made during the proceedings because a timely and accurate admonition to the jury
is presumed to sufficiently protect a defendants rights and remove any error created
by the objectionable statement. Id.
Here, the State sought to introduce evidence of Alvies prior bad acts under
Indiana Trial Rule 404(b), namely, that on February 14, 2000, about two months
before Alvies threatened to kill Muscar if she told anyone about the murders,
Alvies pointed a big gun at Muscar and threatened to kill her.
Alvies filed a motion in limine to exclude any such evidence. At
the hearing on Alvies motion, the State argued that the prior threat was
relevant to show that Muscar had good reason to believe Alvies when he
threatened to kill her on April 4, 2000. The trial court granted
Alvies motion, and its order in limine provides in pertinent part:
IT IS ORDERED that the State of Indiana, its Prosecuting Attorney and witnesses
are not to mention, refer to, interrogate concerning or attempt to convey to
the Jury in any manner, directly or indirectly, the following  subjects without
first obtaining permission of the Court:
1. That the Defendant, prior to the decedents deaths, had, at least on one
occasion, pointed a firearm to the head of Josie Muscar and threatened to
At trial, the State questioned Muscar about specific events between the dates of
April 2, 2000, and April 4, 2000. The State first asked her
whether, at any time between those dates, she saw a brown holster, and
Muscar stated that she saw the holster on April 2. The State
then asked whether, between April 2 and April 4, she had seen Alvies
with a firearm. Muscar stated that she had, and the State then
asked, Tell the jury when you first saw, again, between April 2, 2000
and April 4, 2000, before [Alvies] went down to [Davis], tell the jury
when you saw Mr. Alvies possessing a gun? At that point, Alvies
counsel requested a side bar conference. Following the side bar, the State,
again, asked Muscar whether she had seen Alvies with a gun between the
relevant dates, to which she replied, Yes. Next, the State asked her
to tell the jury under what circumstances [she] saw Mr. Alvies with a
gun. Muscar stated, On April 2, he had been drinking. He
had pointed at me a couple of times . . . Alvies
objected and moved for mistrial. The court denied the motion, but immediately
admonished the jury as follows:
To the last question, there was an objection. Im going to strike
the last answer. Its not relevant to the question asked or to
the proceedings, so you may disregard the last answer . . . .
Im going to deny the Motion for Mistrial, and with that, [State], ask
your next question.
As an initial matter, we must reject Alvies contention that the State intentionally
sought to illicit testimony from Muscar in violation of the order in limine.
Throughout the above relevant portions of direct examination, the State attempted to
focus Muscars testimony to a specific time period, April 2 through April 4,
2000. Our review of the record reveals that the only other threat
of which the State was aware was the threat that occurred on February
14, 2000. And the transcript of the hearing on Alvies motion in
limine makes clear that the February 14, 2000, threat was the only prior
threat the State wanted to introduce at trial. Thus, Alvies claim that
the State purposefully sought to violate the courts order when it specifically referred
Muscar to dates in April 2000, lacks merit.
In addition, once Alvies moved for mistrial, the trial court, acting within its
discretion, determined that a jury admonishment was appropriate and adequate. Again, a
timely and accurate admonishment is presumed to cure any error in the admission
of evidence. James v. State, 613 N.E.2d 15, 22 (Ind. 1993).
And even where a witness violates a motion in limine, a trial court
may determine that a mistrial is not warranted and, instead, admonish the jury
to disregard the improper testimony. See Underwood v. State, 644 N.E.2d 108,
111 (Ind. 1994) (holding admonishment, not mistrial, appropriate where police officer made statement
in violation of ruling on motion in limine).
Finally, Alvies cannot demonstrate that the courts admonishment was inadequate and that he
was placed in grave peril as a result of Muscars single statement.
In light of Muscars other testimony implicating Alvies in the crimes, along with
Dishmans and Pfenningers statements that Alvies admitted shooting Davis and Nicholson, we are
not convinced that Muscars testimony that Alvies pointed at [her] a couple of
times on April 2 had a possible persuasive effect on the jurys decision.
See Lehman, 777 N.E.2d at 72. We hold that the trial
court did not abuse its discretion when it denied Alvies motion for mistrial.
BROOK, C.J., and BAILEY, J., concur.
The court noted in
Chambers that the record was unclear
whether the defendant or the trial court proposed the instruction but explained that
the State objected to the instruction and the defendant argued for the instruction.
Chambers, 734 N.E.2d at 580 n.1.