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Tuesday, May 01, 2007
Ind. Courts - Cows running at large case ends in mistrial in Franklin County Circuit Court
Jill Winchester of the Brookville American-Democrat reports on a mistrial in a cows wandering at large case. Some quotes:
On Monday, April 23, one of three cases pending against Lawrence Wollyung, 78, of West College Corner, commenced at 8:30 a.m.A six-person jury, numerous witnesses, and the officers of the court assembled to hear the case of Wollyung, wherein he faced two counts of Animals at Large, as a Class B Misdemeanor, and one count of Neglect of a Vertebrate Animal, as a Class B Misdemeanor.
By 3:30 p.m., however, the trial came to an untimely end.
It was at that time that Judge J. Steven Cox granted attorney Terry O'Maley's renewed motion for a mistrial. * * *
As it pertains to this case, witnesses were not allowed to discuss additional incidents wherein Wollyung's cows were running freely -- only testimony pertinent to the dates filed in the charging information was permissible.
However, the State had hoped to use that evidence to establish knowledge of the condition of Wollyung's fence as well as knowledge of the possibility of his cows running at large. * * *
Cox ruled that any mention of past instances of Wollyung's cattle running free was inadmissible and that the State's witnesses were to be admonished not to speak of that topic.
“I admonished the witnesses that they could not comment on cattle being out in the past, but we had to show that the defendant knew that the cattle were out. It was a tough thing to prove that [Wollyung] had knowledge of that without talking about the cows being out,” Franklin County Prosecuting Attorney Melvin Wilhelm said.
“We had officers testify about how many times they'd been called out there because of problems with the fence, and it kind of came out with one witness. The Judge informed me to make sure that the witnesses knew [about the admonishment]. It came out, again, in the afternoon with one witness,” he continued.
After opening arguments, Officer Adam Henson, a deputy with the Franklin County Sheriff's Department, was called to testify concerning his knowledge of the condition of Wollyung's fence.
While describing the condition of the fence, he mentioned that he had experienced cattle, in fact, escaping through a given hole in the fence.
That testimony fell within the scope of the admonishment, and O'Maley immediately moved for a mistrial.
Cox noted the objection and preserved the motion for the record. The jury was advised that the information was not to be used in considering a verdict and that it would be stricken from the record.
Later in the afternoon, Dr. Mike Johnston, a veterinarian, was called as an expert witness concerning the condition of the cattle that were found dead on Wollyung's farm, resulting in the neglect charge.
As that was charged as part of the crime, that testimony was permissible.
However, when Wilhelm asked Johnston about the condition of the fence as he had perceived it, Johnston indicated that he had seen cows running at large around the Wollyung property in the past.
It was at that time that O'Maley renewed his objection. Cox concurred that to proceed would be unfair to the defendant and that the matter must be reheard.
“At that point, the Judge has to determine whether the jurors are beyond an admonishment; it was his determination,” Wilhelm said.
Unless a pre-trial agreement is reached, the case will be retried before a new jury on July 9, 2007.
A motion for mistrial has not been granted in a case in the Franklin County Circuit Court for at least thirty years.
“I've never had one happen in all the years I've been prosecutor. That's the first mistrial I've ever been involved in,” Wilhelm said.
Posted by Marcia Oddi on May 1, 2007 10:44 PM
Posted to Ind. Trial Ct. Decisions