Moore v. State
440 N.E.2d 1092
Ind.
1982
Check Treatment

*1 and, well as its own prosecutor, as

effect, in the puts position the state.

counsellor to in the situation before

I no difference see litigant offers

us where other and the court erroneous- proof

inadmissible nevertheless, It,

ly behooves accepts it. case, not prove only its

state to but

satisfaction of re-

procedures appellate that will withstand

view. of Burks v. United authority

Upon

States, case with supra, I would remand the upon vacate the verdict

instructions to and to resentence

habitual offender account

the defendant. MOORE, Appellant,

Robert L. Indiana, Appellee.

STATE of

No. 282S54.

Supreme Court Indiana. 20, 1982.

Oct. Point, ap- Bielefeld,

James R. Crown pellant.

1093 Pearson, Gen., Joseph dire the Linley Atty. jury. granted E. N. of The court this Stevenson, Gen., Deputy Atty. Indianapolis, motion. appellee. At trial to the the State moved admit death certificate The judge into evidence. GIVAN, Chief Justice. allowing indicated he was the to certificate Appellant charged was with the crimes of “in be admitted order to establish a predi- A Rape Robbery. and third count was filed using testimony cate for the previous of ” seeking enhancement of sentence im- words, Davis]; in other the docu- [Mrs. posed under the offender statute habitual ment was admitted to invoke the use of the upon conviction of of the other either one testimony exception to the appellant two counts. A jury guilty found Also, hearsay to this reading rule. of rape of the crime of and him also found to of transcript the the first trial wherein Mrs. be an offender. habitual He sentenced subjected Davis had been direct and fifty (50) years rape on conviction. cross-examination, trial judge told the That sentence was enhanced another using admitting he was this method of thirty (30) years under the habitual offend- the evidence because the witness was de- er statute. “certainly” and was ceased unavailable. The record appellant’s reflects first trial Appellant did not of admission

for the instant offense resulted in a mistrial certificate into death evidence. being declared for reasons not relevant presen- When the had concluded its State disposition appeal. this We do not evidence, tation of the the court held need summarizé the events factual hearing appellant’s relative to argument case, one, this save as we find reversible tending to show Mrs. error has been committed and cause Davis’ death was a suicide should be admit- must be remanded to the trial court for a ted. The one hearing court treated new trial. on a renewal the State’s Motion in Li- The second trial in this case commenced mine to have all evidence of suicide exclud- 13,1981. July on 6,1981, July on Appellant proof, ed. made an offer of case, prosecutrix one Debra Da- itself, which he to offer the note proposed vis, was found dead of her basement deputy coroner who home Gary gunshot with a wound in the he investigated note when found chest. A completed death certificate by a incident, the testimony of Mrs. Davis’ County Lake deputy coroner indicated the husband, purpose authenticating cause of “[ljaceration death was of left handwriting argued as hers. The State artery common carotid to bullet [d]ue opposition evidence of suicide wound to the chest.” part On another irrelevant issue whether or not investigation the form it was indicated an appellant had committed crime. The into the cause of pending. death was How- accepted reasoning State’s ever, there was a note found next to Mrs. held no evidence of suicide could be body Davis’ clearly implying she had com- admitted. mitted overwhelming suicide due to de- spondency general with the turn of events long recognized This Court has in her life. There was no reference in the exception an death certificate to the note. There was hearsay consisting rule. Evidence also no rape reference in the note now unavailable witness’ recorded testimo the upcoming trial. ny prior judicial proceeding, given at

Upon discovery prose- death where there identity was sufficient of is cutrix, the State made an oral present proceeding Motion in sues with those of the Limine on the day first of trial to prohibit party and the adverse chance making any from witness, reference to cross-examine now unavailable the fact of Mrs. Davis’ during voir is admissible as evidence in the subsequent

1094 Arti- State, States (1971) 256 Constitution United Raines v. Ind. proceeding. of the State 378; State, the Constitution 404, cle 12 of § Stearsman 269 N.E.2d Moreover, error we deem this N.E.2d Levi v. Indiana. (1957) stat- error.” We have State, 182 Ind. 104 N.E. 765. to be “fundamental (1914) may er- unavailability categorized of the witness be “To as fundamental The ed: our *3 insanity procedural or of the former to due to “death ror and thus transcend blatant, witness, secur- impossibility the absolute of must be requirements, the error by procure- absence sub- ing presence, his his harm must be potential and the for defendant, or such non-resi- ment of the appear clearly prospective- stantial and of preclude taking Ind., the his State, (1980) dence as will 409 v. ly.” Nelson ” 192, Levi, at 104 supra, deposition .... no 637, difficulty have in N.E.2d 638. We founda- Certainly proper at the N.E. 767. and is finding error was indeed blatant the case when by the tion was laid State the notions of offensive to our fundamental Mrs. Da- it the death certificate of offered jus- the of criminal proper administration unavailability and further vis to her show significant ap- is system. tice This because requirements show the other foundational the of objected to admission pellant never were met. Neither into evidence. the death certificate he to the trial in his brief does at nor However, authority no we find of the ruling regarding admission court’s jury the need informed proposition the same as grounds suicide the evidence of on for the absence of the witness reason in this have reversal require we identified the As made and for invocation of rule. However, adher- require we do not case. clear the cases and authorities cited rule contemporaneous objection to ence the above, or to invoke the rule is not whether case of 8.3(A)(7) to Ind.R.App.P. or to the sound discretion decision committed State, (1980) v. error. fundamental Crosson is court. There no need to Nelson, Ind., 1194; John- supra; 410 N.E.2d inform of of the factors relat jury any 1005; Ind., State, (1979) 390 N.E.2d son v. to ing the witness’ absence. The State, (1978) 269 381 Dodson v. Ind. allowing jury erred to view the death 90; State, Young (1967) 249 Ind. v. N.E.2d if It would have erred even certificate. 286, 231 N.E.2d 797. no more than to inform the done because she witness unavailable make it we are endeavor to clear We was dead. that, when the holding not bar, jury’s In effect the case at hearsay rule is testimony exception to viewing coupled of the death certificate invoked, any error admit evidence it is to timing with their awareness of showing is available. why witness death, undeniably left them free to infer noted, long-stand has been a As we have for, or arranged himself com- evidence the accused ing rule of law that mitted Mrs. prevent the murder of Davis to impli or attempted suppress has to conceal testifying against her It is from him. also evidence cating admissible as evidence strongly supporting obvious the evidence the instant offense. the accused committed she had theory committed suicide would at might include of the accused Such act drawing have much foreclose the done bribe, intimidate, threaten, or tempts to the inference. between an witness even murder adverse resulting in proceeding, the first and second conclude the trial court’s refusal We proceeding. second his from the the admission of evidence absence allow 331; State, Ind., (1980) 403 Barnes N.E.2d tending to show the witness’ death v. Ind., State, (1980) 402 suicide, v. Washington coupled with admission evi 1244; State, (1975) 263 Matthew v. strongly dence she was mur N.E.2d suggesting State, v. dered, N.E.2d Elliot deprivation appellant’s right was a Thus, 92, 279 N.E.2d 207. (1972) 258 Ind. by to a trial as him guaranteed fair whose the witness when absence of Sixth and Fourteenth Amendments being body near her which would indicate through admitted found exception take own life going is due that she was her procurement or connivance of ac- her despondent she was over life. because cused, proper it is admit evidence of refers Nothing in note However, occurs, act. accused’s when this by appellant oncom- victimization course, put right the accused has the ing retrial. on he exculpatory tending evidence to show trial, open Before in the course of responsible is not for the witness’ absence. regarding the manner detailed discussions Ind., State, (1981) Clay Balfour proceed in which the trial should support N.E.2d 1091 is cited State witness, prosecuting the recent death of the argument of its did not abuse his question proper manner of han- denying discretion in admission of the sui- dling the death certificate arose. The trial cide evidence. that case is distin- prosecutor stated that the death certificate guishable Balfour, from the case at In bar. might not be admissible *4 we not his judge held did abuse fact, only judge trier of but in refusing in discretion to admit evidence re- admissibility of her determining garding the details of the of a shooting The testimony. lawyer defense brother of a on the grounds State’s witness stated that he intended to introduce the such evidence was irrelevant to the issue of testimony deputy and of a coro- suicide note or whether not instant offense was the inference support ner bar, committed. in the case at prosecuting of the wit- testimony was the State’s witness who was All shot. of belief because it worthy ness was not regarding evidence that shooting was clear- she have may reflected that suffered from relevant, ly when the form of having given for false or guilt feelings ex- the death already certificate had ad- been or from aggerated testimony an unsettled mitted and led to a reasonable inference mental condition. defendant had murdered the witness possible legal Two avenues existed for

keep from testifying. the introduction of the suicide note and underlying felony Since the conviction is by coroner’s information the defense. The reversed, thirty (30) year course en- first was that this evidence was avenue hancement of the sentence under the habit- and directly independently admissible as ual offender statute cannot stand. relevant to bias or lack of trustworthi- show The ness of the witness. second avenue The judgment re- trial court is dispel was that it was admissible to versed. The cause remanded to the trial and adverse inferences stem- prejudicial a new for trial. ming from written statements on the death HUNTER, certificate. Defense counsel was PIVARNIK, acutely PRENTICE and JJ., potential aware of the which the introduc- concur. jury of the certificate before the tion DeBRULER, J., dissents with separate creating for inferences prejudicial ad- opinion. verse to interests. Defense counsel was his DeBRULER, Justice, dissenting. judge unable to that his evi- convince prosecuting gun- The died independently witness dence was relevant and that shot chest week I before the retrial the first avenue be followed. would rape of this case. The agree. passage retrial resulted in The of time between the death, appeal. conviction on taking This retrial and prosecuting death of the oc- any implication witness and the absence of that she years curred two after despondent the first trial at was over matters related to her taken, which her sub- by appellant having was first victimization or to face jected retrial, to cross-examination and recorded. render the time connection of the signed A written note with her was severely name death and the retrial attenuated. doubt, evidence before was read into witness Without much charac- case, event of the same jury as well—an prosecution’s any error strength of the ordered in thirdly, judge the trial ter. And refusing permit its introduction on this that no comments be course of the trial be harmless. basis would by on the death of witness made counsel convincing Having unsuccessful been In this the fact that she was dead. beyond was direct- the trial that the evidence manner, potential exploitation ly relevant, the record would show that create infer- written certificate of death to consciously to use sought counsel defense pre- prejudicial the defendant ences In execution of this the second avenue. vented. consciously deliberately strategy, he legal ground up- for There is a second object proffer not to chose Ordinarily, holding judge’s ruling. the trial by prosecution. He death certificate presents part of state- party when one introduction; not to its he did did transaction, opponent his should be ment or it; parts seek redaction of offensive permitted present the balance thereof in- jury he did not seek to have the dispelling any adverse infer- purpose the limited its purpose structed as to State, (1920) v. 190 Ind. ences. Durst The have introduction. exhibit would been State, (1975) N.E. Carroll excluded from consideration 338 N.E.2d 264. This rule often if the form in which it offered completeness, as the wholeness referred to objected to. properly been I believe The extent open the door doctrine. in its record is clear relevation that defense opponent permitted should be which chose, strategy, as a matter counsel *5 for a discre- go into the transaction calls risk, hopes in the to take a calculated tionary ruling by governing judge. convincing judge that his evidence of ruling considerations requires Such suicide would admitted to refute ruling excluding fairness. The trial court’s prejudicial might inference which flow was within rea- defense counsel’s evidence appellant something from that to do mind The state of the witness’s at son. with the violent death of the witness. He extraneous to time strategy. was unsuccessful this That is trial, issues on and fairness considerations say anything there was inappro- not to that counsel’s were minimal defense priately done counsel. objectiona- permit deliberate choice to basically legal There are two reasons for no go in. There was revers- ble evidence concluding that did com- rulings upon error in the trial the evi- ible excluding mit reversible error the evi- should be af- dence and conviction purpose. dence of suicide this The first firmed. present that under circumstances

here it is speculative the extreme the jury

conclude that entertained the un-

warranted inference that death, do

anything to with witness’s inference,

and that if it did entertain the permit such would inference to effect the POWERS, Ray Appellant, Russell decision reached. The certificate itself bears information the death oc- Indiana, Appellee. STATE of curred week before trial as a result of a No. 481S108. gunshot wound to the chest that a investigation pending. homicide That Supreme Court of Indiana. upon which an insubstantial basis to de- Oct. 1982. appellant’s Secondly, duce involvement. it,

fate would have one the defense wit-

nesses was shot and killed two be- months deposition and the

fore retrial