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ATTORNEY FOR APPELLANT S. Neal Ziliak Noblesville, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana

Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana ______________________________________________________________________________

In the

FILED
of the supreme court, court of appeals and tax court

Indiana Supreme Court
_________________________________ No. 29S00-0901-CR-1 JUAN C. LUCIO, v. STATE OF INDIANA,

Jun 23 2009, 2:16 pm

CLERK

Appellant (Defendant below),

Appellee (Plaintiff below). _________________________________

Appeal from the Hamilton Superior Court, No. 29D01-0704-MR-47 The Honorable Steven R. Nation, Judge _________________________________ On Direct Appeal _________________________________ June 23, 2009 Dickson, Justice.

The defendant, Juan Lucio, seeks reversal of his convictions for two counts of Murder and one count of Conspiracy to Commit Murder and the accompanying two sentences of life imprisonment without parole and one sentence of fifty years arising from his role in the April, 2007 deaths of Rebecca Payne and George Benner in Carmel, Indiana. In this direct appeal, he presents a single issue, arguing that the trial court erred in denying his request for a mistrial when, in response to a juror-submitted question, a witness violated a pretrial order by testifying that she thought the defendant had met the alleged co-conspirator and murder triggerman in a county jail. We affirm the trial court.

The trial evidence favorable to the verdict indicated that the defendant was recruited by Toby Payne to kill Payne's estranged wife Rebecca Payne, and her boyfriend, George Benner. Toby had given the defendant a key to Rebecca's house and a map, and promised him $100,000 from a life insurance policy in return for the killing. The defendant, in turn, recruited Kyle Duckworth to drive him to Rebecca's house in exchange for $200 or a quarter-pound of marijuana. Originally, the defendant planned to be the shooter, but later changed his mind and recruited Anthony Delarosa to be the triggerman. On April 2, 2007, Duckworth drove the defendant and Delarosa to Rebecca's house. The defendant gave Delarosa a gun, and Delarosa entered the house but returned and said that Rebecca was not home. The men agreed to try again later. On April 4, the defendant called Duckworth to pick him up, called Delarosa to ask if he was ready, and called Toby Payne to inform him they were trying again. The three men drove to Rebecca's home, the defendant again gave Delarosa a gun, and Delarosa entered the house and fired the fatal shots. When police had questioned him during their investigation, the defendant first admitted that Toby Payne had given him a key to the house and asked him to kill Rebecca, but later claimed that they were supposed to scare Rebecca and extort money from her, that Delarosa told him where to go, that he did not know Delarosa had a gun, that he did not know why Delarosa was extorting money from her, and that he and Duckworth were supposed to get $200 each for driving.

Before the defendant's jury trial began, the defendant moved to prevent the introduction of evidence regarding aspects of his criminal record, including arrests, convictions, pending charges, and periods of incarceration. At a pretrial hearing on the motion, the State objected to the extent the motion would preclude it from offering proof that the defendant and two alleged co-conspirators had spent time together and corresponded while in the Boone County Jail. The court ruled that the State could present evidence that the men had associated during that time period but granted the defendant's motion with respect to the specific location as well as "why these individuals were in the Boone County Jail." Appellant's App'x at 208.

At trial, the State called as a witness the defendant's former girlfriend, Tara Cassada. Following direct and cross-examination, the trial court, away from the jury's presence, consi-

2

dered several questions that the jurors submitted pursuant to Jury Rule 20(a)(7).1 In one of these questions, a juror asked, "How were Tony Delarosa and Juan connected, i.e., drugs, work, and for how long have they been acquainted?" Tr. at 478-79. The prosecutor and defense counsel agreed that the first half of the question could not be asked, but neither objected to asking how long the defendant and the co-conspirator had known each other. When proceedings were resumed in the jury's presence, the trial court posed several of the jurors' questions to the witness. As to the above specific question, the court rephrased the question to ask, "Now, between Tony Delarosa and Juan, how long have they been acquainted?" and the witness replied: "As far as I know they had met in Boone County Jail." Tr. at 483.

Defense counsel immediately moved for a mistrial, arguing that this testimony, though inadvertent and not an "evidentiary harpoon,"2 was highly prejudicial both to his client's guilt and potential life sentence. Tr. at 484. The prosecutor confirmed that Ms. Cassada had been instructed not to mention the fact that the men had been in jail together; suggested that the court issue a curative instruction, strike the answer, and advise the jury not to consider the testimony in any way; and argued that "with the extent of overwhelming evidence that we've already presented in this case, . . . the Court can find that although this is certainly not a good thing, that it is harmless under all the circumstances . . . , with an admonishing instruction to the jury." Tr. at 486. The court agreed that the violation was unintentional and denied the mistrial motion. The court then asked if the defendant desired a limiting instruction and crafted one with the input of both parties. When the jury returned, the court instructed as follows: "Well, ladies and gentlemen, the last answer of the witness is hereby stricken from the record. You must not consider that evidence as to any matter before you for consideration. In fact, such matter is to be treated as though you have never heard of it. So that is the order of the Court." Tr. at 488.

1

This rule provides that jurors "may seek to ask questions of the witnesses by submission of questions in writing."
2

"An evidentiary harpoon involves the deliberate use of improper evidence to prejudice the defendant in the eyes of the jury." Williams v. State, 512 N.E.2d 1087, 1090 (Ind. 1987).

3

At the conclusion of all the evidence, the jury was instructed on vicarious criminal liability.3 It found the defendant guilty on all three counts. In the subsequent penalty phase proceeding, the jury determined that the State had proved two charged aggravating circumstances-- murder for hire and multiple killings, Ind. Code

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