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Wednesday, October 10, 2007
Ind. Decisions - "Judge denies motion to restrict jukebox incident from murder case"
From the Oct. 4 Lebanon Daily Sun, this story, reported by Matt Hendrix, on a trial court ruling:
Judge Rebecca McClure has ruled that the music a murder suspect allegedly listened to in the hours leading up to his wife's death is relevant for use in his upcoming trial."Evidence that the defendant listened repeatedly to two specific songs in the hours immediately prior to his wife's death, and the lyrics to those songs, is relevant," McClure wrote this week, in an order denying a motion that would have prevented the evidence from being used in Michael W. Venis' trial.
On Sept. 25, defense attorney Thomas Whitsitt argued for a motion in limine in the case of Venis, 44, who is accused of shooting his wife Aug. 11, 2006, at their Lebanon home. A motion in limine is usually made by a party who believes that simply the mention of certain evidence would prejudice the jury against that party, even if the judge later instructed the jury to disregard the evidence.
Whitsitt hoped to keep testimony about two songs Venis allegedly played repeatedly on the Boone's Pub jukebox between about 9 p.m. Aug. 10, 2006, and midnight Aug. 11, 2006, out of his upcoming murder trial. Deputy Prosecutor Kent Eastwood, meanwhile, argued the songs - both by country singer Garth Brooks - reveal Venis' violent mindset that night.
Venis' wife, Cindy Venis, was found dead from a shotgun wound at 609 S. Lebanon St., early in the morning of Aug. 11, 2006. Police said they received multiple phone calls at 12:51 a.m. from neighbors reporting an adult daughter of Michael and Cindy Venis was outside the home screaming that her father had shot her mother. Michael Venis was booked into the Boone County Jail just after 2 a.m. Aug. 11, 2006, after fleeing from local police into neighboring Hendricks County. He apparently made threats to take his own life, but eventually spoke with a police hostage negotiator via cell phone and surrendered.
Eastwood said at the Sept. 25 hearing that witnesses placed both Michael and Cindy Venis inside Boone's Pub in Lebanon on the night Cindy Venis was shot. He said a female bartender who worked that night will confirm Michael Venis played two Brooks' songs, "The Thunder Rolls" and "Papa Loved Mama," "in excess of five times each" during a period leading up to Cindy Venis' death, which investigators estimate occurred at 12:40 a.m. Aug. 11, 2006.
The deputy prosecutor said the bartender described Michael Venis as "guarding" the jukebox that night, while his wife was playing pool and periodically visiting the bar to buy drinks. According to Eastwood, Venis played the Garth Brooks songs (both about angry people killing a cheating spouse) so often that it angered other bar patrons and caused bar staff to reset the jukebox.
Whitsitt cited case law in which a burglary suspect's preference for the AC/DC song "Night Prowler" wasn't admitted into court. But in her recent ruling, McClure noticed a "distinguishable" difference between that case (Houser v. State) and Venis' case.
"In Houser, the disputed song lyrics were those of a song that the defendant liked to listen to," McClure wrote. "There was no evidence that Houser played the song repeatedly just prior to the commission of the crimes for which he was charged."
McClure noted that the Garth Brooks songs "are about the intentional killings by a spouse of his or her unfaithful spouse."
While it is not on the record whether Cindy Venis was unfaithful in her marriage, Eastwood said Sept. 25 that the Boone County Prosecutor's Office intends to prove Michael Venis believed his wife was cheating on him and knew she planned to leave or divorce him.
Eastwood said the Venis case won't be so much about whether or not Michael Venis killed his wife - he has reportedly never denied pulling the trigger - but whether it was intentional or accidental. It's important for the jury to know Michael Venis' mindset in the hours just before his wife's death, Eastwood argued on Sept. 25.
McClure apparently agreed. In denying Whitsitt's motion in limine, she wrote that "direct proof of a defendant's mental state is rarely available."
"A defendant's mental state may be proven by indirect evidence and inferences that can be drawn therefrom," the judge noted. "When intent is an issue in a murder case, the defendant's mental state may be determined by evidence of the defendant's conduct before, at the time of, and immediately after the charged murder."
McClure also wrote that the potential prejudice from admitting the songs and their lyrics as evidence "does not significantly outweigh its probative value" to the case.
A pre-trial hearing in the Venis case occurred Thursday, but took place in Judge McClure's chambers and was not on the record. Michael Venis' trial is scheduled to begin Oct. 16 in Boone County Superior Court II.
Posted by Marcia Oddi on October 10, 2007 06:05 AM
Posted to Ind. Trial Ct. Decisions