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Gridley v. State

Court of Appeals of Indiana

April 10, 2019

Curtis S. Gridley, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal from the Ripley Circuit Court The Honorable Ryan J. King, Judge Trial Court Cause No. 69C01-1703-F4-5

          Attorney for Appellant Jennifer A. Joas Joas & Stotts Madison, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE.

         [¶1] Curtis S. Gridley appeals his convictions of Level 4 felony attempt tomanufacture methamphetamine[1] and Level 6 felony theft.[2] He presents three issues that we restate as:

1. Whether the trial court abused its discretion when it replaced a juror during the presentation of evidence;
2. Whether the admission of testimony in contravention to the order in limine constituted fundamental error; and
3. Whether the prosecutor's statements during closing arguments constituted fundamental error.

         We affirm.

         Facts and Procedural History

         [¶2] On December 21, 2016, twenty-year-old Bradley Davis asked his uncle, Gridley, to purchase alcohol for him. In return, Gridley requested Davis assist him in purchasing other items. Davis picked up Gridley at Gridley's mother's house, and they drove to Kroger, where Gridley directed Davis to purchase lighter fluid and a cold pack. Then they went to a CVS pharmacy. Gridley went in alone and purchased a box of pseudoephedrine. Gridley asked Davis to go in and purchase more; however, the pharmacist told Davis they were sold out. When told this news, Gridley became "agitated." (Tr. Vol. II at 120.)

         [¶3] Davis and Gridley proceeded to a liquor store, where Gridley went inside and bought a bottle of liquor for Davis. Gridley "said something about wanting to get high" to Davis. (Id. at 123.) On their way back to Gridley's mother's house, the men stopped at a Gillman's Home Center.[3] Because Davis was out of cash and did not want to give Gridley the debit card he used, [4] both men went inside to make their purchases. After getting directions to the correct location in the store from a cashier, the men went to the aisle where pipe cutters were located. Gridley found one he liked but Davis did not see it again after Gridley picked it up. The men then picked out lighter fluid and drain cleaner. Gridley pointed to the type he wanted and Davis picked them up. Davis purchased the lighter fluid and drain cleaner.

         [¶4] Kyle Hitham, the general manager at Gillman's Home Center, was notified a staff member had found empty packaging for a pipe cutting tool. Hitham reviewed his surveillance tapes and cash register system to narrow down when the tool may have been taken and who was in the store at that time. Hitham found surveillance showing Davis and Gridley in the store in the area where the pipe cutting tool was located. He confirmed their presence, via video surveillance, when they purchased the lighter fluid and drain cleaner.

         [¶5] Indiana State Trooper Howard "Chip" Ayers had educated Hitham in the ingredients needed to make methamphetamine. Hitham recognized the pipe cutting tool can be used to strip the lithium out of batteries and the lighter fluid and drain cleaner are used in the chemical process used to make methamphetamine. Based on that knowledge, once he had identified the men he suspected of theft, Hitham contacted Trooper Ayers.

         [¶6] Trooper Ayers, trained specifically in methamphetamine-related crimes, reviewed the surveillance footage provided by Hitham, together with the cash register sales data, and contacted Davis' significant other in an attempt to locate Davis. Once Trooper Ayers contacted Davis, Davis volunteered to "come to the Indiana State Police Post located on the south portion of Versailles to speak with" Trooper Ayers. (Id. at 190.) Davis told Trooper Ayers everything that happened that day, including the purchases at Kroger and CVS. Davis' account of the events cemented Trooper Ayers' suspicions that Gridley was attempting to manufacture methamphetamine.

         [¶7] On March 3, 2017, the State charged Gridley with Level 4 felony conspiracy to manufacture methamphetamine, [5] Level 4 felony attempt to manufacture methamphetamine, Level 6 felony possession of precursors, [6] and Class A misdemeanor theft.[7] On March 12, 2018, the State moved to dismiss the conspiracy and possession charges. The case proceeded to trial on three charges: attempt to manufacture methamphetamine as a Level 4 felony, theft as a Class A misdemeanor, and theft enhanced to a Level 6 felony based on prior convictions. The first two of these charges were presented to the jury.

         [¶8] While Gridley was in jail awaiting trial, he made a phone call to his mother wherein he stated, "Bradley Fuckin' [sic] told on me. Bradley told everything. And you know the only me and Brad, [sic]" (Tr. Vol. II at 170.) The phone call was a "free call[, ]" (id.), and was cut short because the jail "do[es]n't give them a multitude of minutes on a [sic] free calls." (Id.)

         [¶9] During Trooper Ayers' testimony at trial, the trial court noted one of the jurors did not "seem to be with it." (Id. at 206.) The State agreed the juror should be replaced with an alternate. The trial court stated: "For the record, it looks to me like he was falling asleep, then he also creates a lot of noises in his slumber, other jurors turned and looked at him and then looked at me like, what the heck." (Id. at 207.) Gridley objected to dismissing the juror "without giving him a warning or giving him a chance to explain his behavior." (Id. at 207-08.) The trial court called the juror to the bench and asked him about falling asleep. The juror apologized and agreed he had been asleep. The trial court dismissed the juror and replaced him with an alternate. Gridley did not object to the dismissal or request a jury admonishment. Nevertheless, when the jury reconvened, the trial court addressed the jury:

Ladies, and Gentleman, make sure your paying attention. Uh, I think I don't have to explain as to way the other gentleman is no longer with us cause, numerous jurors were, I saw concern on your faces. Um, and quickly realized myself that the gentleman had and was falling in and out of consciousness, so he had to be excused. But, please, this ...

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