APPEAL FROM MADISON SUPERIOR COURT, DIVISION I, The Honorable Dennis D. Carroll, Judge, Cause No. 1 SCR-85-56B.
Givan, J., Shepard, C.j., DeBruler, Pivarnik and Dickson, JJ., concur.
A jury trial resulted in the conviction of appellant for Robbery, a Class B felony, for which he received a sixteen (16) year sentence.
The facts are: On June 4, 1985, appellant, along with Anthony Neal and Tyrone Grant, visited the AJC Company in Anderson, Indiana, several times to observe the merchandise and number of people in the store. William McDaniel and Diane Fox were employed as store clerks. Appellant and Neal asked McDaniel questions about the merchandise. Then appellant pointed a gun at Fox while Neal held McDaniel at gunpoint. Appellant ordered everyone to lie on the floor. McDaniel, who was 72 at the time, was struck on the head with a gun.
The men took $300 in cash, some radios and McDaniel's watch, ring and wallet. They left the store and divided the goods among the three of them.
At the police station, Fox and McDaniel were shown a photographic array. Fox identified appellant and McDaniel identified Neal as the robbers. McDaniel did not identify appellant as one of the robbers. Appellant's first trial ended in a hung jury. Appellant was remanded to the custody of the sheriff and he filed a motion for speedy trial on August 9, 1985. His second trial was set for August 26, 1985.
On August 23, 1985, the State filed a motion for continuance so they could have more time to locate Neal and obtain his testimony. Their motion was granted and the second trial was reset for October 16, 1985.
Police contacted Anita Woods, who was Neal's girl friend and appellant's cousin, to question her about Neal's whereabouts. She told police that Neal was not in her home and allowed them to search her residence. Police found Neal hiding under a coat on her closet floor.
Woods testified at the second trial that Neal told her that he and appellant robbed the store and that appellant hit McDaniel on the head. The State also procured a statement from Neal in which he implicated appellant and Grant.
Grant testified that he was asked by appellant to check out the store before the robbery to see how many people were in it. Grant said he waited in the car as appellant and Neal robbed the store, and then he drove them to a house where he received $10.
Appellant argues that because the jury had not been given a sufficient amount of time for deliberation, the trial court erred in declaring a mistrial due to a hung jury.
At the end of the first trial, the jury deliberated for approximately seven hours and the foreman said that they were making no progress. He and the jury signified they did not believe that a unanimous opinion could be reached even if they were given more time. The trial Judge then declared a mistrial pursuant to Ind. Code § 34-1-21-7.
It is within the trial court's discretion to determine whether the declaring of a mistrial due to a hung jury is appropriate under the circumstances of the case. Young v. State (1985), Ind., 482 N.E.2d 246. The determination of whether the jury has deliberated for a ...