ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN C. C. WILD KAREN M. FREEMAN-WILSON
Indianapolis, Indiana Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
STACY M. FRANCIS, ) ) Appellant-Defendant, ) ) Supreme Court Cause Number v. ) 49S00-9909-CR-473 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
Yes, there was.
Are you able to give us the date that you went there?
A. If I could have a moment I could research that. I went
to Evansville, Indiana on April 14th, 1998.
And what was your purpose for going there?
A. They had apprehended the Defendant in Evansville, Indiana and I went down to try to interview Mr. Francis.
R. at 926. At that point defense counsel asked to approach the
bench and during a side bar conference moved for mistrial. The trial
court denied the motion but struck the officers response from the record.
R. at 929. At the close of the officers testimony, one of
the jurors submitted the following question to the court:
Why are we not allowed to hear the statement that they took from Francis. [I]s this not important evidence to the case and for us to hear.
R. at 1075, 1078. The record is not clear what response, if
any, was given to the juror. In any case, defense renewed its
motion for mistrial, which the trial court again denied. During final instructions
the trial court advised the jury among other things that it should not
consider any answers and statements that had been stricken from the record.
R. at 263. Francis contends that striking the officers remark and admonishing
the jury were not enough; rather, the trial court should have declared a
mistrial. He argues that the officers remark amounted to a comment on
the defendants right to remain silent and not to testify as guaranteed by
the Fifth Amendment. Br. of Appellant at 9.
Although citing absolutely no authority to support his argument, Francis makes a claim for what is commonly referred to as a Doyle violation. In Doyle v. Ohio, the United States Supreme Court held that the use for impeachment purposes of petitioners silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. 426 U.S. 610, 619 (1976). See footnote The Court explained, [W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. Id. at 618. Not limiting Doyle solely to the use for impeachment purposes, this Court has held that [d]uring trial, the State may not comment upon a defendants post-arrest, post-Miranda warning silence because that silence may be nothing more than an exercise of the Fifth Amendment right. Wisehart v. State, 693 N.E.2d 23, 64 (Ind. 1998). Indeed, the Supreme Court has noted that where, as here, a defendants silence is used not as impeachment but as affirmative proof in the States case in chief, The constitutional violation might thus be especially egregious because, unlike Doyle, there was no risk that exclusion of the evidence would merely provide a shield for perjury. Wainwright v. Greenfield, 474 U.S. 284, 292 n.8 (1986) (quotation omitted).
In Nicks v. State, an investigating officer testified as follows: I left the Courthouse and went down to the station to conduct an interview with [the defendant] and when I got to the station Sergeant Hammerlein assisted me in the interview. We waited a few minutes and got things together and then we sat down to interview Mr. Nicks. 598 N.E.2d 520, 524 (Ind. 1992). Defense counsel immediately objected arguing that the testimony implied that the defendant had invoked his right to remain silent. Thus, the argument continued, the State was using the exercise of that right against him in violation of Doyle. Id. This Court disagreed, declaring the potential for abuse of [defendants] exercise of his right to remain silent clearly was too attenuated to amount to a Doyle violation. Id. We reach the same conclusion here. Francis silence was used neither as impeachment nor as affirmative proof of his guilt. There was certainly the potential that the officers testimony would stray into a constitutionally protected area. However, because of a timely request to approach the bench, Francis silence was never implicated. And as a result no Doyle violation occurred.
At most, the officers testimony was simply not relevant. However, it was stricken from the record, and the jury was admonished not to consider it. We presume the jury followed the trial courts admonishment and that the excluded testimony played no part in the jurys deliberation. Duncanson v. State, 509 N.E.2d 182, 186 (Ind. 1987). The grant of a motion for 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). 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 when an abuse of discretion can be established. Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001). To prevail, the appellant must show that he was placed in a position of grave peril to which he should not have been subjected. Id. In this case, Francis has made no such showing. The trial court correctly denied the mistrial motion.
A. [Francis] pulled out a gun and said, I want everything you
Q. Okay, and did you see the gun?
A. Yes, I seen the gun.
Q. You saw it in his hand?
Q. Okay, and what happened at that point?
A. He was pointing the gun at everybody in the room, telling them,
he wanted [their] money and had the girl, Amanda, check their pockets for
money and his buddies in the background, Dangerfield, telling him to kill everybody
in the room . . . .
R. at 394. Defense counsel immediately objected and moved for mistrial on grounds the testimony violated the order in limine. The trial court denied the mistrial motion but struck the response and admonished the jury.
The trial proceeded, and the State eventually requested the trial court to reconsider its order and lift the motion in limine. Granting the request, the trial court noted the State had introduced evidence showing that Francis and Dangerfield were apparently working together during the robberies and shooting. The State then called Amanda Jones to the stand who testified over objection that while present in the motel room she heard Dangerfield say something along the lines of shoot em all. R. at 686. Francis claims error.
Granting a motion in limine does not determine the ultimate admissibility of the evidence. Goodby v. State, 736 N.E.2d 252, 255 (Ind. 2000), rehg denied. Rather, the purpose of a ruling in limine is to prevent the presentation of potentially prejudicial evidence until the trial court can rule on the admissibility of the evidence in the context of the trial itself. Wright v. State, 593 N.E.2d 1192, 1194 (Ind. 1992). If the trial court errs by admitting evidence, the exclusion of which was sought by the motion in limine, then the error is in admitting the evidence at trial in violation of an evidentiary rule, not in rescinding a previous order in limine. Short v. State, 443 N.E.2d 298, 308 (Ind. 1982) ([I]f a Motion in Limine is granted and then at trial the court decides to admit the evidence, the error is not in violating the Motion in Limine but in admitting the evidence.). The record shows the trial court admitted the testimony over Francis hearsay objection on the basis that a conspiracy had been established. R. at 673-74. See Ind. Evidence Rule 801(d)(2)(E); Barber v. State, 715 N.E.2d 848, 852 (Ind. 1999) (A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy is not hearsay and is therefore admissible. (quotation omitted)). Despite Francis argument to the contrary, by the time Jones testified there was sufficient evidence before the trial court to demonstrate the existence of a conspiracy between Francis and Dangerfield. See Ind. Code § 35-41-5-2(a), (b) (listing the elements of conspiracy as: (1) intent to commit a felony; (2) an agreement with another person to commit the felony; and (3) an overt act in furtherance of that agreement). See footnote We find no error here.
I.C. § 35-42-5-1. Robbery as a Class C felony is an inherently
included lesser offense of robbery as a Class A felony. It is
not possible to commit the greater offense without committing the lesser offense as
See Kingery v. State, 659 N.E.2d 490, 495 (Ind. 1995).
Whether robbery as a Class B felony is either an inherently included or
a factually included lesser offense of robbery as a Class A felony depends
on the wording of the charging information. In this case, with respect
to each of the three victims, the charging informations read in pertinent part:
Stacy M. Francis, Amanda Jones and Thomas A. Dangerfield, A/K/A Anthony T. Dangerfield, on or about the 9th day of April, 1998, did knowingly take from the person or presence of [named victim] property, that is: United States currency and cocaine, by putting [named victim] in fear or by using or threatening the use of force on [named victim], which resulted in serious bodily injury, that is: mortal gunshot wounds to Dewaun Sanders[.]
R. at 157-58. As charged, it is apparent that the bodily injury
variety of Class B felony robbery is an inherently included lesser offense of
robbery as a Class A felony. However, as the trial court correctly
determined, because death of the victim supported the murder conviction as well as
elevating robbery to a Class A felony, principles of double jeopardy prohibited sentencing
Francis to A felony robberies. The same double jeopardy concerns are posed
by sentencing Francis to the bodily injury variety of Class B felony robbery.
The question here is whether the charging informations sufficiently allege the armed with a deadly weapon variety of Class B felony robbery such that it is a factually included lesser offense of robbery as a Class A felony. The State answers affirmatively citing in support Smith v. State, 445 N.E.2d 998 (Ind. 1983). In that case, the defendant was charged with attempted robbery as a Class A felony. However, the trial court gave the jury an instruction on attempted robbery as a Class B felony, and the defendant was convicted accordingly. On appeal, he complained the trial court erred in giving the instruction because: (i) under the robbery statute the Class B felony was not inherently included within a charge of Class A felony; and (ii) the information did not allege an attempted robbery as a Class B felony. The information charged in pertinent part:
Larry David Smith did knowingly attempt to take property, to wit U.S. currency, by using and threatening the use of force, to wit a firearm or bomb, thereby putting Roger Smith in fear and causing bodily injury to Roger Smith.
Id. at 999. Because the information did not allege that he committed the act while armed with a deadly weapon, defendant Smith complained that the information did not allege robbery as a Class B felony. Id. Unpersuaded, this Court held:
Though it is undoubtedly preferable for an information for Attempted Robbery, Class B felony, to contain the phrase while armed with a deadly
weapon,  absent proof that the accused was misled by the phraseology employed, we do not think that such a phrase is imperative to satisfy the due process requirement of notice.
The State urges that Smith is dispositive arguing [t]he information in the present case specified the injuries to be mortal gunshot wounds, and gunshot wounds can only be inflicted by firearms. Br. of Appellee at 9. We disagree that Smith provides the answer in this case. A fair reading of the information in that case shows that implicitly the defendant was armed. The only question was the flexibility the Court would allow in the terminology used to allege with a deadly weapon. Smith, 445 N.E.2d at 999. As the Court pointed out, a firearm is a deadly weapon. See I.C. § 35-41-1-8(a). Thus, the defendant could not have been misled by an information using words sufficiently similar in meaning to those used in the robbery statute. Smith, 445 N.E.2d at 999.
The case before us is different. It may be true that only a deadly weapon can inflict a gunshot wound. Here, however, it cannot be said that the phrase mortal gunshot wound was contemplated to put Francis on notice that he was being charged with the armed with a deadly weapon variety of robbery. Rather, the phrase describes the bodily injury - death - to the victim. In essence, it serves to emphasize that the information is alleging a Class A felony robbery. We conclude therefore that the informations in this case did not sufficiently allege the armed with a deadly weapon variety of Class B felony robbery, and thus it was not a factually included lesser offense of robbery as a Class A felony. Accordingly, we vacate Francis sentences for the three robberies as Class B felonies and remand this cause to the trial court for a new sentencing order that imposes sentences for Class C felony robberies.
SHEPARD, C.J., and SULLIVAN, J., concur.
DICKSON, J., concurs in Parts I, II, and IV and dissents as to
Part III without separate opinion.
BOEHM, J., concurs in Parts I, II, and IV and dissents as to
Part III on the ground that the information charged infliction of a gunshot
wound, which is sufficient to put the defendant on notice that he is
charged with robbery armed with a deadly weapon.