*1 EVERROAD, Joseph Appellant, G.
v. Indiana, Appellee.
STATE
No. 73S00-8901-CR-26.
Supreme Court of Indiana.
May22,1991.
1241 testimony Evidence at trial included appellant's family acquaintances, killing, appel- wit: that at the time of the *3 unemployed; lant was insolvent and courier, aspired big-time drug he a be Greg emulation of his cousins Garnet and Everroad, serving of both whom were offenses; lengthy drug sentences for and day that on the killing, before the he ob- pair a gloves, Harrington tained of work a Marshall, Perkins, E. William F. Karon & Richardson .22 caliber six-shot revolver Dalmbert, Perkins, Columbus, Marshall & substantially reported similar to one stolen appellant. for home, from his father's and ammunition of Pearson, Gen., Linley Atty. E. Arthur type killing. target- used in the He Gen., Perry, Deputy Atty. Thaddeus India- practiced pistol, supposedly with the napolis, appellee. for preparation hunting for raccoons. testimony placed appellant Other at the GIVAN, Justice. day victim's car lot several times on the Appellant charged initially with one placed before the murder. Evidence him at count of Murder and two counts of For- the car evening lot on the of the murder gery. juryA trial resulted his conviction argument and in a heated with the victim Murder, for which he received a sen- approximately p.m., just prior at 7:00 to the (60) sixty years. tence of Appellant's time of death. actions and evening The facts are: Late in the of movements between the time of the murder reported and the time he finding the vice- 4, 1985, Wesley October the remains of Tichenor were building body suspicious found inside the tim's were in that after housing shop hurriedly picking up the office and car his used his former wife from Columbus, dealership job baby-sit- located Indiana. her and then their son at the Tichenor, later, ter's, stopped by shave, Mr. it was determined had he then his home to gunshot suffered thirteen up, change wounds to clean clothes before re- upper body, pen- turning head seven of them to the car reporting lot and etrating being his skull. After shot he was crime. placed bay, on the floor of a service cover- Appellant's testimony at trial was that plastic tarpaulin, ed with a severely cousins, Greg, his Garnet who were bludgeoned sledgehammer with a subse- drug owed a substantial debt the vice- quently nearby. discovered The crime was son, arranged tim's for to obtain Everroad, reported police by "Jody" first $13,000 buy some vehicles from the vie- herein, who with his former tim, then who was robbed others of the wife, Jackie, stopped by dealership had killed, cash and all in an effort to collect his approximately at evening 8:45 that ostensi- drug jury son's debt. The of course was bly purchase to close the of three vehicles required testimony. to believe this along from the victim with the trade-in of Subsequent killing, appellant pos- to the appellant's pickup truck. keys paperwork sessed the and some to a ensuing Corvette, Carlo, investigation,
The Topaz which lasted a Monte and a nearly years, two disclosed the victim had owned the victim. The titles had never developed reputation selling a signed cars for been over the victim. Other no-questions-asked basis, perhaps cash on appellant's possession documents were drugs even to dealers in illicit and others incomplete, suggesting the victim had nev- wishing disguise their source of income. payment er received for the three vehicles. During investigation, ap- Accordingly, course of the prosecution's theory pellant given had ten inconsistent state- the case was that the murder had been ments to authorities. up attempt by appel- committed to cover an lant to steal the statute, cars and obtain marketable 35-87-3-8, Ind.Code use § immuni- ty title. granted is to be by the upon court prosecution. motion of the
Appellant contends the trial court erred
admitting
his statements
and the fruits
agree
While we
with the State's as
despite
thereof
the existence of an immuni-
here,
sertion
we need not reach this far to
ty agreement with the State. At the hear-
decide this
Appellant
issue.
argues
ing on his motions to
charges
dismiss the
admission of his statements
and the fruits
suppress
statements,
thereof violated his Fifth
right
Amendment
counsel,
and his
Eynon,
initial
Mr.
testified
self-incrimination,
to avoid
citing the intro
24, 1985,
that on October
prosecutor
*4
duction of his ten various
given
granted appellant
immunity in return for
period
over a
of time.
he fails to
any information he
supply
could
regarding
demonstrate how their
inculpat
admission
the instant homicide. Appellant maintains
ed him or otherwise worked to his detri
agreement
was for him to
im-
receive
ment.
In the absence of any showing of
munity
exchange
in
telling
for
all he knew prejudice, no reversible error is demon
about Tichenor's death and to
poly-
take a
strated.
Sharp
(1989), Ind.,
v. State
534
graph
approved
test to be
attorney
his
-
708,
denied,
N.E.2d
-,
cert.
U.S.
110
time, place,
as to
questions
conditions and
1481,
S.Ct.
admission at the evidence set forth the outset of this not error. Deputy Tindall was opinion, are sufficient to enable a reason- in- was Appellant contends evidence appellant guilty of fact to find able trier conviction support his murder sufficient charged. The trial court did not err trial court erred consequently the denying judgment motion for on the his judgment on the denying his motion evidence. argument on the He bases his evidence. the evidence that even without Appellant assertion contends the trial court erred mistrial, statements alluded from his ten denying derived his motions for refusing jury to admonish the in certain to show above, evidence tended the State's at Tichenor's he could not have been that instances, concerning the conduct of the murder; car lot at the time of argues prosecution He prosecutor. jail in- him fellow testimony against purposely delay- misconduct committed unreliable; and that inherently mates was responses, concealing wit- ing discovery Deputy Tindall alleged remark to defense, intimidating nesses from worthy of credit. other defense witnesses with threats of *5 penalties in unrelated matters. He harsher argu- elaborate Appellant advances an prosecutor indulged maintains the also involving elapsed times ment recorded improper prejudicial inflammatory and con- subsequent destina- the car lot to his during opening closing duct both his tions, testimony well as the coroner's during his cross-examina- p.m. 7 that death occurred between appellant. Appellant concludes the tion of that p.m., to lead us to the conclusion 7:80 inadequate admonitions were to court's possibly at the car he could not have been it remedy prejudice the incurred and thus the time the victim was killed. He lot at deny mistrial motions. was error to testimony forensic in addition the of *6 any strate prejudice substantial resulting denial of his motions for grounded mistrial prosecutor's the opening closing thereupon. appellant statements. plau While makes a Appellant contends the trial sible case of intentional in misconduct his court erred in admitting prior evidence of a brief, a careful examination of the tran crime which had not been reduced to a script reveals that where in fact there was trial, conviction. Before appellant filed a objectionable prosecutor behavior the prohibit motion inx any limine to mention during necessarily his lengthy introductory pending charges unrelated to the instant statements, closing any accruing harm case or of acts of resulting misconduct not appellant to was cured admonition from in conviction. The granted trial court this the bench. In those cited instances where motion, then at trial admitted evidence re admonition, there was no alleged the mis garding appellant's theft of a blue Oldsmo conduct either is not to be found in the bile Delta 88 from a Columbus car lot and record or turns out to be de in minimis its his attempts unsuccessful to sell it without import. title, eventually using it as "collateral" "consignment" for a illegal order of drugs. Appellant maintains the force of testimony his was wrongfully diminished course, Appellant, of is correct in assert during him, when its cross-examination of ing that evidence of a defendant's un- prosecution forced defense counsel re related criminal activity generally is inad- peatedly interrupt objection with an each missible as evidence of his commission of prosecutor time the strayed beyond the charged offense. Sharp, supra. How- proper bounds of Ap cross-examination. ever, may such evidence be admissible to pellant prosecutor asserts the deliberately prove, alia, inter the accused's identifica- violated the trial ruling court's as to perpetrator, tion as the his intent or mo- scope questioning. allowable tive, or to plan demonstrate a common or transcript reveals that transpired what involving charged scheme crime. Id. nothing more setting parame Here, than concerning the evidence the Delta 88 ters of the State's cross-examination on a squarely theory fits into the State's subject-by-subject basis. appellant perpetrated Given the in Tichenor's murder in volved and rather convoluted factual ma- order to steal three automobiles with titles aggravating cireum- ample forth court set sufficiently valid to be able
appearing thereby (re- stances, evidence parties; per Ind.Code such 35-88-1-7 sell to third § now, 35-88-1-7.1), 1990; see exceptions. pealed foregoing § falls into sentence, noting that support an enhanced out, Moreover, points as the State had no record of criminal while pretrial his some of convictions, ex- aspirations admitted his find they would investigators assured money-making drug dealer and his cel as a Delta 88 at blood in the of Tichenor's traces killing in the instant which resulted scheme went, because, car story as his issue provided best a need for treatment indicate who were by the murderers had been used an offense penal facility; that such by a individ- to be the same alleged by appellant recur; any and that likely to would be "consign- drugs on him the uals who sold depreciate the in sentence would reduction indicated no at trial ment." The evidence crime. of the seriousness nevertheless, found; once were such traces 88's the door to the Delta appellant opened court is affirmed. The trial charged, the cir- to the offense relevance acquisition no surrounding its cumstances C.J., SHEPARD, concurs. bar, to the case at longer were unrelated JJ., KRAHULIK, DICKSON pertaining consequently evidence separate opinion. without concur result improper. thereto was DeBRULER, J., event, separate did not err dissents with any the trial court In dealings admitting opinion. evidence of the Delta 88. with Justice, DeBRULER, dissenting. trial court Appellant contends the there found as a fact that The trial court prosecu improperly assisting erred agreement'" had been "some between case, {.e., present conducting tor in his upon which prosecution and the defense examining witnesses. ing his evidence and up privilege giving relied in argument appellant cites support of his In subjecting against self-incrimination involving the only portion of the record The court found interrogation. himself *7 appel of prosecutor's cross-examination agreed to that the terms to be above, no im discussed we find lant. As all he knew about speak truthfully and tell We fur propriety in these cited instances. pass a Tichenor and then the death of it the trial court's function ther note is that, exchange, the test and polygraph of guide and control the course and conduct provide appellant with promised to State (1989), proceedings. the See Rowe v. State giv- the "generally consider protection and Ind., no Again, 474. we see 539 N.E.2d dealing ing testimony in with of Defen- here. error that the trial court's apparent dant." It is error, assignment of In his final ambiguous quality. wording here has an imposed contends sentence "[the However, lawyer of one representation aas unreasonable by the Trial Court was negotia- context of this to another in the tion, force would case." having this same light the circumstances of this words of defense coun- issue is to be received as testified no mention of this be Brief argument section of the found general sel, namely, promise a that Appellant; it therefore is waived. See of face the conse- not have to his client would police 8.3(A)(7). revelations to the Rule quences of his Ind.Appellate Tichenor, ie., as a use the death of about sponte nonetheless note sua We promise. immunity statutory sentence of the maximum that (60) sixty years, indeed does questions imprisonment, all of the Appellant answered par light many as of the police over as seem unreasonable put not to him polygraph not take a He did ten sessions. of this mur ticularly brutal circumstances lawyer and the agreed because his 17. More test as Ind.Appellate Rule der. See agree proper not on prosecutor trial could over, sentencing statement its procedures. This fact is uncontradicted. I immunity would hold the State to this ST. MARY'S MEDICAL CENTER OF agreement require a new trial at which EVANSVILLE, Mary's INC. and St. interrogators Building Corporation, Appellants,
would be excluded. See Bowers v. State
(1986), Ind.,
If
special protec
the State's
STATE of Indiana BOARD OF TAX
special
tion from others and of
deference
County
COMMISSIONERS
Board
him in
towards
the criminal matters then
of Review
Vanderburgh
County,
facing
promise
him did not constitute a
not
Appellees.
to use
against
his statements
him in a
No. 82S00-8905-TA-0367.
prosecution,
future
it would nevertheless
type
constitute
promise by
the State
Supreme Court of Indiana.
bring
confession,
which can
about a
state
ment,
rights
or waiver of
freely
self-de
29,
May
1991.
(1976),
termined. Ashby v. State
265 Ind.
316,
Upon objection appel- admission of trial,
lant's later statements at the burden properly upon prove State to vol- this, untariness. prosecutor To end the
provided (1) evidence promise that the protection
the State only, was for prem- rejected court, ise (2) the trial that in- in appellant's
consistencies numerous state-
ments showed falsehood and a breach of agreement, (8) terms of the pass did not a polygraph test.
There was uncontradicted evidence defense, however, that the polygraph test
did not occur because the State refused to
permit defense counsel ques- to restrict might asked,
tions which be contrary to the agreement. Upon the basis of this show-
ing, I do not believe the State can be
deemed to have satisfied its burden to
prove appellant's statements and waiv- rights
ers of voluntary were required by
the Fifth If Amendment. the Fifth Amend-
ment was violated when state-
ments against were admitted him at his
trial, as arguendo majori- is assumed in the
ty opinion, such error could not be harm- beyond
less point a reasonable doubt. As
ed out in majority opinion, one of these provided open through door
which the State was able to introduce
damning evidence that committed
theft of a blue Oldsmobile Delta 88.
notes
Hawley
the effect
pathologist Dr. Dean
support a motion for mistrial
To
significant
a
amount of
that it would take
misconduct, the
upon prosecutorial
based
Appellant
to commit the murder.
time
prosecutor's
that the
defense must show
jail mates re-
points out that his former
by
misconduct
refer
actions
constituted
benefit, including
substantial
sen-
ceived
professional
norms of
ence to established
reduction,
exchange
for their testi-
tence
conduct,
ensuing prejudice
that
mony,
Deputy
and asserts
Tindall's
position
grave peril
him in
of
placed
a
credibility
questionable
and the "con-
subjected.
have
which he should not
been
fession" he related was uncorroborated.
(1976),
492,
v.
265 Ind.
Maldonado
State
Appellant
argues
also
the Bartholomew