MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            Feb 29 2016, 9:19 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                       Gregory F. Zoeller
Kokomo, Indiana                                          Attorney General of Indiana

                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Luther Riddell,                                          February 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1507-CR-897
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable George A.
Appellee-Plaintiff.                                      Hopkins, Judge
                                                         Trial Court Cause No.
                                                         34D04-1412-MR-171



Altice, Judge.


                                          Case Summary




Court of Appeals of Indiana | Memorandum Decision 34A04-1507-CR-897 | Februar 29, 2016   Page 1 of 9
[1]   Luther Riddell was convicted of Murder,1 a felony, and was determined to be a

      Habitual Offender. Riddell presents two issues for our review:


                 1. Did the trial court abuse its discretion in denying Riddell’s
                 motion for a mistrial?


                 2. Did the trial court abuse its discretion in admitting certain
                 evidence during the habitual offender phase?


[2]   We affirm.


                                       Facts & Procedural History


[3]   During the early morning hours of December 16, 2014, Jay West went to

      Riddell’s house. An argument and fight ensued, most of which was recorded

      on Riddell’s surveillance camera system. As West walked away from Riddell’s

      home and out of camera range, Riddell grabbed an object and followed him.

      Riddell then returned to camera range and replaced the object. West was

      discovered lying in a nearby yard and ultimately died of a stab wound. West’s

      DNA was taken from the blade of a knife that was found in proximity to where

      Riddell can be seen grabbing and later replacing an object.


[4]   The following day, the State charged Riddell with murder and alleged him to be

      a habitual offender. A three-day jury trial commenced on June 9, 2015. At the

      end of the second day, just before the court recessed for the evening, there was




      1
          Ind. Code § 35-42-1-1(1).


      Court of Appeals of Indiana | Memorandum Decision 34A04-1507-CR-897 | Februar 29, 2016   Page 2 of 9
      an outburst from the gallery by an unidentified woman who yelled, “You need

      to fucking die, you fucking murderer, lying ass, bitch.” Transcript at 213. The

      trial court summoned security and removed the jury to the jury room. The

      record continued outside the presence of the jury with Riddell’s counsel moving

      for a mistrial based on the spectator’s outburst. Riddell’s counsel argued that

      “the jury has been affected and may have been tainted and contaminated.” Id.

      at 214. The trial court denied the motion for mistrial and Riddell’s counsel

      made no further request.


[5]   The jury reconvened the next day and the trial continued. After the close of

      evidence, the jury returned its verdict finding Riddell guilty of murder. The trial

      then continued with the habitual offender phase tried to the jury. To establish

      Riddell was a habitual offender, the State offered State’s Exhibit 19, a series of

      documents relating to his August 15, 2008 conviction for receiving stolen

      property, a class D felony, under Cause No. 34D04-0710-FD-141. Riddell

      objected to admission of State’s Exhibit 19, asserting that not every document

      therein was certified. The trial court looked at the exhibit and sua sponte

      removed four pages of the exhibit, which were described as a “prosecutor’s

      report” and an “update report.” Transcript at 275. The trial court allowed

      admission of the remaining documents that comprised State’s Exhibit 19,

      including the certified charging information, certified probable cause affidavit,

      and certified sentencing order from Cause No. 34D04-0710-FD-141. The trial

      court overruled Riddell’s objection that the exhibit must be “taken either as a

      whole or not.” Transcript at 276.


      Court of Appeals of Indiana | Memorandum Decision 34A04-1507-CR-897 | Februar 29, 2016   Page 3 of 9
[6]   When the State offered State’s Exhibit 21, which included documents relating to

      Riddell’s April 25, 2006 conviction for burglary, a class C felony, under Cause

      No. 30D01-0512-FC-185, Riddell objected, citing again the fact that several of

      the documents included therein were not certified. The trial court sua sponte

      took out the probable cause affidavit, but allowed admission of the remaining

      documents, which included the certified charging information, certified guilty

      plea and sentencing entry, and certified judgment of conviction from Cause No.

      30D01-0512-FC-185. The trial court overruled Riddell’s objection that the

      exhibit “ha[d] to be accepted in whole or rejected.” Transcript at 278. The jury

      found Riddell to be a habitual offender. On July 10, 2015, the trial court

      sentenced Riddell to sixty years for murder with a ten-year enhancement for his

      status as a habitual offender. Riddell now appeals.


                                          Discussion & Decision


                                                  1. Mistrial


[7]   Riddell argues that the trial court abused its discretion in denying his motion for

      a mistrial following an outburst from someone in the gallery while the jury was

      still present in the courtroom. Riddell asserts that the trial court’s failure to

      admonish the jury immediately after the outburst occurred allowed the outburst

      “to germinate in [the jurors’] minds.” Appellant’s Brief at 4. Riddell also

      seemingly faults the trial court for not admonishing the jury the following

      morning before trial resumed.




      Court of Appeals of Indiana | Memorandum Decision 34A04-1507-CR-897 | Februar 29, 2016   Page 4 of 9
[8]   A mistrial is an extreme action and is warranted only when no other action can

      be expected to remedy the situation. Vaughn v. State, 971 N.E.2d 63, 68 (Ind.

      2012). “The decision to grant or deny a mistrial motion is left to the sound

      discretion of the trial court.” Id. at 67. We will reverse the trial court’s

      determination on the issue only for an abuse of discretion, which occurs when

      the trial court’s decision is clearly against the logic and effect of the facts and

      circumstances before the court. Id. at 67-68. “We afford great deference to the

      trial court because it is in the best position to gauge the circumstances and

      impact on the jury.” Id.


[9]   When faced with a circumstance that a defendant believes might warrant a

      mistrial, generally the correct procedure is to request an admonishment. Isom v.

      State, 31 N.E.3d 469, 482 (Ind. 2015). If unsatisfied with the admonishment or

      if it is obvious that an admonishment will not be sufficient to cure the error,

      then counsel may move for a mistrial. Id. In situations similar to the present, it

      has been held that an admonishment to disregard an outburst by a spectator is a

      reasonably curative measure. Thus, where an admonishment is given in such

      cases, the trial court’s subsequent denial of a motion for mistrial is not an abuse

      of discretion. See Adkins v. State, 524 N.E.2d 1274, 1275 (Ind. 1988); Hill v.

      State, 497 N.E.2d 1061, 1067 (Ind. 1986) (same).




      Court of Appeals of Indiana | Memorandum Decision 34A04-1507-CR-897 | Februar 29, 2016   Page 5 of 9
[10]   Here, Riddell never requested an admonishment, but rather, moved

       immediately for a mistrial.2 The decision whether to admonish a jury is a

       function of trial strategy because an admonishment may draw undue attention

       to the very remarks and or conduct to be addressed. See Brewer v. State, 455

       N.E.2d 324, 327 (Ind. 1983). It is a function of defense counsel to determine if

       such strategy is desirable. Id. The trial court’s function is to rule on such

       request, if made, and not to, sua sponte, initiate the admonishment of the jury.

       Id. We therefore reject Riddell’s argument to the extent he claims it was

       incumbent upon the trial court to admonish the jury even where an

       admonishment was not requested.


[11]   We likewise reject Riddell’s argument that the trial court abused its discretion in

       denying his motion for mistrial. To prevail on appeal from the denial of a

       motion for mistrial, Riddell must establish that the questioned conduct “was so

       prejudicial and inflammatory that he was placed in a position of grave peril to

       which he should not have been subjected.” Gregory v. State, 540 N.E.2d 585,

       589 (Ind. 2001). The gravity of peril is determined by considering the

       misconduct’s probable persuasive effect on the jury’s decision, not the

       impropriety of the challenged action, evidence, or misconduct. Mack v. State,

       736 N.E.2d 801, 803 (Ind. Ct. App. 2000), trans. denied.




       2
           When the jury reconvened the following day, Riddell again did not request an admonishment.


       Court of Appeals of Indiana | Memorandum Decision 34A04-1507-CR-897 | Februar 29, 2016           Page 6 of 9
[12]   The circumstance giving rise to Riddell’s motion for a mistrial was an

       emotional outburst from an unidentified female spectator. The spectator used

       profane language and accused Riddell of being a liar and a murderer. The

       outburst occurred as the court recessed the jury for the evening. The trial court

       immediately summoned security and removed the jury from the courtroom.

       After the jury was removed, Riddell immediately moved for a mistrial, asserting

       the jury had been “tainted.” Transcript at 214. The trial court disagreed and

       denied the motion.


[13]   Here, the spectator’s outburst was short, transpiring in a matter of seconds.

       Further, there was no disruption of trial proceedings as the jury was preparing

       to exit the courtroom after the proceedings had been adjourned for the day.

       The spectator’s outburst did not add to the State’s evidence. Indeed, the State’s

       evidence of Riddell’s guilt was overwhelming, with much of it presented by way

       of the recording taken from Riddell’s security cameras. The recordings showed

       a heated exchange followed by Riddell initiating a physical confrontation. The

       recording also showed Riddell following West after he left Riddell’s property.

       Riddell is seen grabbing an object and then replacing it. A knife later found in

       proximity to where Riddell is seen grabbing an object contained West’s DNA

       on the blade. West was found in a nearby yard and died of a stab wound at the

       scene. The spectator’s outburst, while an unfortunate breach of decorum, did

       not place Riddell in a position of grave peril to which he otherwise would not

       have been subjected. The trial court did not abuse its discretion in denying

       Riddell’s motion for a mistrial.


       Court of Appeals of Indiana | Memorandum Decision 34A04-1507-CR-897 | Februar 29, 2016   Page 7 of 9
                                            2. Habitual Offender


[14]   During the habitual offender phase, the State offered State’s Exhibits 19 and 21,

       each composed of documents relating to Riddell’s prior convictions for the

       jury’s consideration of Riddell’s status as a habitual offender. Riddell’s

       argument with regard to admission of these exhibits is that the trial court

       exceeded its authority when it admitted the exhibits as modified by the court

       instead of admitting them as offered by the State or excluding them altogether.

       Riddell cites no authority to support his argument that the trial court could not

       admit the exhibits as modified. Riddell has therefore waived any error in this

       regard. See Ind. Appellate Rule 46(A)(8)(a) (“[e]ach contention must be

       supported by citations to the authorities . . . relied on”); Jackson v. State, 758

       N.E.2d 1030, 1037 (Ind. Ct. App. 2001) (finding waiver where appellant failed

       to cite appropriate authority).


[15]   Waiver notwithstanding, the trial court did not abuse its discretion in admitting

       State’s Exhibits 19 and 21 without certain documents that were initially

       contained therein. Trial courts have “inherent discretionary power on the

       admission of evidence.” Vasquez v. State, 868 N2d 473, 476 (Ind. 2007)

       (quotation omitted). Indeed, trial courts frequently redact or excise

       inadmissible matter from statements and other evidence. Townsend v. State, 533

       N.E.2d 1215, 1225 (Ind. 1989). This is apparently what happened here.


[16]   To the extent Riddell complains that the exhibits as tendered by the State are

       not included in the record, we note that it was Riddell’s burden to provide us


       Court of Appeals of Indiana | Memorandum Decision 34A04-1507-CR-897 | Februar 29, 2016   Page 8 of 9
       with a complete record. See Moffitt v. State, 817 N.E.2d 239, 247 (Ind. Ct. App.

       2004) (noting that the appellant bears the burden of presenting a complete

       record with respect to the issues raised), trans. denied. Finally, we note that

       Riddell does not challenge the documents that were admitted as part of State’s

       Exhibits 19 and 21 as inadmissible. Upon review of the documents in each

       exhibit, it is clear that each one bears a proper certification. Riddell has failed

       to establish that the trial court abused its discretion in admitting State’s Exhibits

       19 and 21.


[17]   Judgment affirmed.


[18]   Robb, J. and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A04-1507-CR-897 | Februar 29, 2016   Page 9 of 9
